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02/19/2008 PENSION TRUSTEES AGENDA Location: Council Chambers - City Hall Date: 2/19/2008- 9 :00 AM 1. Call to Order 2. Approval of Minutes 2.1 Approve the minutes of the January 14, 2008 Pension Trustees meeting as submitted in written summation by the City Clerk. ~ Attachments 3. Pension Trustee Items 3.1 Approve hiring Eaton Vance and Wellington Management as emerging market equity managers and authorize staff to sign the appropriate contracts. I@l Attachments 3.2 Approve hiring Security Capital Research and Management Inc. as a REIT manager for a performance based fee and authorize staff to sign the appropriate contracts. ~ Attachments 3.3 Employees listed below be accepted into membership in the City of Clearwater's Employees' Pension Plan. ~ Attachments 3.4 Ralph Basnight, Gas Department, be granted a regular pension under Section(s) 2.393 and 2.397 of the Employees' Pension Plan as approved by the Pension Advisory Committee. I@l Attachments 3.5 Alan Uhr, Police Department, and Amy Courtney, Customer Service Department, be allowed to vest their pensions under Section(s) 2.397 and 2.398 of the Employees' Pension Plan as approved by the Pension Advisory Committee. ~ Attachments 4. Other Business 5. Adjourn Meeting Date:2/19/2008 Pension Trustees Agenda Council Chambers - City Hall SUBJECT / RECOMMENDATION: Approve the minutes of the January 14,2008 Pension Trustees meeting as submitted in written summation by the City Clerk. SUMMARY: Review Approval: 1) Clerk Cover Memo Item # 1 Attachment number 1 Page 1 of 5 TRUSTEES OF THE EMPLOYEES' PENSION FUND MEETING MINUTES CITY OF CLEARWATER January 14, 2008 Unapproved Present: Frank Hibbard Carlen Petersen John Doran George N. Cretekos Paul Gibson Also Present: William B. Horne, II Jill S. Silverboard Rod Irwin Pamela K. Akin Cynthia E. Goudeau Patricia O. Sullivan The Chair called the meeting to order at 2:06 R To provide continuity for research, ite necessarily discussed in that order. 2 - Approval of Minutes Chair Trustee Trustee Trustee Trustee City M Assista Assistant City Attor City Cle Board Re rustees meetings of 007, and the sp eeting of October 31,2007, ion by the City Clerk to each Trustee. The motion of Clearwater's Em 10 ees' Hire Date Ray untant/Budget Dennis oitioning Technician/General Services Richard , Recreation Programmer/Parks & Rec. Kervin St. e, Electronics Technician/Public Utilities Chris Livernois, Police Officer/Police Jeremiah Mills, Firefighter/Fire Angela Aldrich, Human Resources Technician/Human Res. Doniela Prifti, Utilities ChemisUPublic Utilities Pension Trustees 2008-01-14 10/29/07 10/29/07 10/29/07 10/29/07 10/29/07 10/29/07 OS/28/91 10/15/07 Pension Eligible Date 10/29/07 10/29/07 10/29/07 10/29/07 10/29/07 10/29/07 10/29/07 10/15/07 Item # 1 Javan Thomas, Custodial Worker/Parks & Recreation John Margnelli, Police Officer/Police Brian Dort, Licensed Electrician/General Services Kattrina Dowd, Recycling Specialist/Solid Waste Mathew Dombrowski, Solid Waste Worker/Solid Waste Alonzo Cherry, Custodial Worker/Library Jorge IlIich-Gejo, Graphics Designer/Public Communications Derelle Houser, Network Support Technician I/Info. Tech. Reinier Airado, Police Officer/Police Michael Claypool, Police Officer/Police Michele Litts, Police Officer/Police Jeff Williams, Police Officer/Police Edwin Merrill, Tradesworker/General Services Joel Gerdt, Recreation Leader/Parks & Recreation Christopher Errington, Recreation Programmer/Parks & Rec. Allison McKinney, Senior Professional Engineer/Engineering Steven Devore, Customer Service Rep/Customer Service Angela Aldrich originally was hired as full ti on September 24, 2001; transferring from part-ti 29,2007. Kattrina Dowd originally hired as pa time and pension eligible as of November 12, Trustee Petersen moved to Clearwater's Employees' Pen unanimously. Attachment number 1 Page 2 of 5 11/13/07 10/29/07 11/13/07 08/20/07 11/12/07 11/05/07 11/13/07 10/29/0 10/2 10/ 10/ 10/ 10/29 11/26/ 11/0 11/26 1/26/07 aste/Gener ervices Director, Solid Waste/General Services City on September 6, 1977, and his pension service credit is n will be effective February 1, 2008. Based on an average per year over the past five years, the formula for computing es' selection of the 100% Joint & Survivor Annuity, this pension ually. ministrative Support Manager, Parks & Recreation Department, was ty on August 31,1981, and his pension service credit is effective on that date. His on will be effective February 1, 2008. Based on an average salary of approximately $63,102 per year over the past five years, the formula for computing regular pensions, and Mr. Russell's selection of the 75% Joint & Survivor Annuity, this pension will approximate $46,431 annually. Pension Trustees 2008-01-14 2 Item # 1 Attachment number 1 Page 3 of 5 Kenneth McAteer, Fleet Mechanics Supervisor, Solid Waste/General Services Department, was employed by the City on October 18, 1982, and his pension service credit is effective on that date. His pension will be effective February 1, 2008. Based on an average salary of approximately $63,000 per year over the past five years, the formula for computing regular pensions, and Mr. McAteer's selection of the 100% Joint & Survivor Annuity, this pension will approximate $42,802 annually. Robert Cantrell, Solid Waste Supervisor II, Solid Waste/Gener was employed by the City on March 21,1977, and his pension servi date. His pension will be effective February 1, 2008. Based on an approximately $56,540 per year over the past five years, the formu pensions, and Mr. Cantrell's selection of the Life Annuity, this pensi annually. Anthony Holloway, Police Captain, Police Department, was August 12, 1985, and his pension service credit is effective on that d effective December 1,2007. Based on an average salary 0 roximately over the past five years, the formula for computing re and Mr. selection of the 100% Joint & Survivor Annuity, this xi mate $5 s, Solid Waste/General Services Department; Departmen, enneth McAteer, Solid Waste/General Services d Waste/General Services Department; and Anthony granted regular pensions under Section(s) 2.393 and 2.397 of approved by the Pension Advisory Committee. The motion unanimously. William Wright, Building Construction Inspector, Development & Neighborhood Services Department, was employed by the City on October 31, 1994, and his pension service credit was effective on that date. Mr. Wright passed away on October 9,2007. Donna Wright, widow of Pension Trustees 2008-01-14 3 Item # 1 Attachment number 1 Page 4 of 5 William Wright, applied for death benefits on October 22, 2007. Mr. and Mrs. Wright were legally married on January 4, 1975, thereby entitling her to death benefits under provisions of the Employees' Pension Plan. Mrs. Wright's request for death benefits was approved by the Pension Advisory Committee on November 8,2007. The amount of Mrs. Wright's pension will be c puted by the Finance Department at a later date. This pension will be effective Novembell 007. Based on an average salary of approximately $45,350 per year over t t fi s, thi pension will approximate $16,140 annually. The Mayor expressed condolences to Mr. Wright's family. Trustee Cretekos moved that Donna Wright, widow of William Neighborhood Services Department, be granted a death benefit unde Employees' Pension Plan as approved by the Pension Advisory Co duly seconded and carried unanimously. 3.4 James Zett Public Utilities De artment be all 2.397 and 2.398 of the Em 10 ees' Pension Plan Committee. James Zetty, Wastewater Tr employed by the City on June 4, 1 Mr. Zetty terminated from Cit provides that s ease to be an r completing te creditable service all acquire a n the retirement benefits. he first of the m owing the month in which the for retirement. Section 2.393 (p) provides for has reached age 55 and completed twenty years edited service, or has reached age 65 and would have completed at least 10 years of ay 4, 2008. IS pension will be effective June 1, 2008. This sion Advisory Committee on December 13, 2007. at James Zetty, Public Utilities Department, be allowed to vest .397 and 2.398 of the Employees' Pension Plan as approved by tee. The motion was duly seconded and carried unanimously. 4 - Other Business - None. 5 - Adjourn Pension Trustees 2008-01-14 4 Item # 1 Attachment number 1 Page 5 of 5 The meeting adjourned at 2:08 p.m. Chair Employee's Pension Plan Tr Attest: City Clerk Pension Trustees 2008-01-14 5 Item # 1 Meeting Date:2/19/2008 Pension Trustees Agenda Council Chambers - City Hall SUBJECT / RECOMMENDATION: Approve hiring Eaton Vance and Wellington Management as emerging market equity managers and authorize staff to sign the appropriate contracts. SUMMARY: At the Pension Trustee meeting on August 13,2007 the Trustees reaffirmed the commitment to a eight percent allocation to the emerging market sector as recommended in the Asset Allocation Study. The Trustees also authorized Dahab Associates to assist staff in this search. Dahab posted a RFQ on their website and contacted firms encouraging them to respond to our search for an emerging market manager. Dahab received a total of 44 responses to the RFQ. A summary of the RFQ responses has previously been furnished to the Trustees via email. Staff reviewed the forty-four responses and working with the consultants narrowed the list to the following three firms for finals presentations. . Eaton Vance Management . JP Morgan Investment Management . Wellington Management Company As a result of the final presentations, the Pension Investment Committee is recommending the emerging market allocation be split between Eaton Vance and Wellington Management. The committee feels that theses two companies will have performance that complement each other. This will result in lower volatility to the pension plan. Eaton Vance uses a top-down process to select companies to invest in that is very structured and quantitative. Wellington uses a process to select companies that is bottom-up and very fundamental. Simply put, Eaton Vance believes that the country selection is the most important factor for performance while Wellington believes that selecting the right companies is the most important factor for performance. The difference between the two managers can be summarized by turnover of their portfolios. We can expect Eaton Vance's portfolio to turnover between 5-20% a year while Wellington will turnover about 100% per year. Eaton Vance offers a commingled fund that charges 125 basis points (bps) per year. Wellington offers a commingled fund that charges 100 bps for the first $25 million and 90bps for the Next $25 million. Eaton Vance has beaten the MSCI EM benchmark for eight consecutive years, which is how long they have existed. Wellington has beaten the same benchmark for seven out of the last ten years. The following is an annualized summary (Gross of Fees) of their recent performance: Eaton Vance Wellington MSCI EM Last 3 Years 43.96% 40.20% 38.67% Last 5 Years 37.77% 33.00% 30.62% Staff is proposing that we will average into this asset class over time. Funding for the new managers will come from the passive EAFE index fund Cover Memo Review Approval: 1) Office of Management and Budget 2) Financial Services 3) Office of Management and Budget 4) Legal 5) Clerk 6) Assistant City Manager 7) Clerk 8) City Manager 9) Clerk Item # 2 ." ..', 'fII)fiW'll Wellington Trust Company, NA Attachment number 1 Page 1 of 21 WELLINGTON MANAGEMENT '" For Collective Investment Funds Investment Agreement Investment Agreement dated as of the_ day of . 2007 by and between City of Clearwater Employees Pension Plan (the "Participating Trust") and the Wellington Trust Company, National Association Multiple Collective Investment Funds Trust (the "Collective Investment Funds Trust"), a group trust established pursuant to the Amended and Restated Plan and Declaration of Trust, dated June 15, 1999 (the "Amended and Restated Plan and Declaration of Trust"), which is attached hereto as Exhibit A. By execution of this Investment Agreement, the Participating Trust and the Collective Investment Funds Trust hereby agree to the following terms and conditions: Definitions Wherever used in this Investment Agreement, unless the context clearly indicates otherwise, the following words shall have the following meanings: "Fund" means: one of the separate investment funds established and maintained in the United States pursuant to Article II of the Amended and Restated Plan and Declaration of Trust. "Qualified Trust" means: (a) a trust which forms part of an employee stock bonus, pension, profit-sharing, or other employee benefit plan: (1) which is exempt from taxation under Section 501(a) of the Internal Revenue Code of 1986, as amended (the "Code"), by reason of qualifying under Section 401(a) of the Code (or corresponding sections of amendments thereto or statutes enacted hereafter); and (2) which is permitted by existing or future rulings of the United States Internal Revenue Service, or any successor entity, to pool its funds in a group trust; and (3) which has been authorized to participate in and transfer assets to the Collective Investment Funds Trust and which has provisions that incorporate by reference the terms and provisions of the Amended and Restated Plan and Declaration of Trust, and of any amendments thereto; and (4) of which Wellington Trust Company, National Association is acting as trustee, co-trustee, agent, or managing agent; and (b) a governmental pension plan, the assets of which may be invested in a group trust as provided in Section 401(a)(24) of the Code. "Participating Trust Trustee" means: the person or persons who control the investments of the Participating Wellington T.....t Comp,my, NA Trust, exclusive of any such person who is affiliated with the Trustee or Wellington Management Company, LLP. "Trustee" means: Wellington Trust Company, National Association. "ERISA" means: the Employee Retirement Income Security Act of 1974, and any amendments thereto. "Prohibited Transaction" means: any transaction which is a prohibited transaction within the meaning of Section 406(a) of ERISA, or Section 4975 of the Code, and any amendments thereto. Qualification of the Participating Trust The investment in anyone or more Funds forming a part of this Collective Investment Funds Trust is conditioned upon the Participating Trust being a Qualified Trust that, with the consent of the Trustee, has executed an Investment Agreement acceptable to the Trustee. Simultaneous with the execution of this Investment Agreement, the Participating Trust (except in the case of a governmental pension plan) will furnish to the Trustee a copy of its underlying trust agreement or plan documentation and the determination letter issued by the Internal Revenue Service pursuant to which its exemption from taxation under Section 501(a) of the Code as a qualified trust under Section 401(a) of said Code has been granted. The Trustee may, in its sole discretion, accept an opinion of counsel satisfactory to it as to the tax-exempt status of a Participating Trust if such Participating Trust has filed for, but not yet received, such a letter of determination; provided, however, that upon receipt of such a determination letter, the Participating Trust shall promptly forward a copy to the Trustee. Simultaneous with the execution of this Investment Agreement, a Participating Trust that is a governmental pension plan will furnish to the Trustee such evidence that the Trustee deems sufficient to indicate that the Participating Trust is a Qualified Trust. Notification of Disqualification Within 15 days after the receipt by the Participating Trust Trustee of a notice of determination from the Internal Revenue Service that the Participating Trust's exemption letter will not be issued or has been revoked, terminated or otherwise modified so that the Participating Trust is no longer exempt from taxation as specified above, or after the agreement under which the Participating Trust is administered has been amended or altered so as to no longer permit investment in the Collective Investment Funds Trust, the Participating Trust will deliver to the Trustee a copy of such determination letter or amendment and documents representing all of the Participating Trusts interest for withdrawal. Such withdrawal shall be effected in accordance with the provisions of Article V of the Amended and Restated Plan and Declaration of Trust. Representations and Warranties by the Participating Trust Trustee The Participating Trust Trustee hereby represents and warrants that the Participating Trust is administered under a plan, an agreement or a statute which authorizes all or part of the assets of 't' ,~"-~" '$ J_., ;t":t1Y," the Participating Trust to be commingled for investment purposes with the assets of other qualified trusts by investing such assets in a collective investment trust. Except in the case of a governmental pension plan, the Participating Trust Trustee also hereby represents and warrants that the terms of the plan or agreement under which the Participating Trust is administered incorporates by reference the terms and provisions of the Amended and Restated Plan and Declaration of Trust. Representations and Warranties by the Trustee The Trustee hereby represents and warrants that it is a national banking association and is therefore a bank as defined in ERISA. In addition, the Trustee hereby represents and warrants that it is a fiduciary as defined in ERISA to the Participating Trust, if applicable. The Trustee shall discharge its duties hereunder with the care, skill, prudence and diligence under 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. Administration and Management of the Collective Investment Funds Trust It is understood and agreed that the Trustee is the Trustee of the Collective Investment Funds Trust and any Funds which form a part thereof, and that the Trustee shall administer such Funds in accordance with the provisions of the Amended and Restated Plan and Declaration of Trust. The Trustee anticipates retaining the services of , .,' .1. ,', "l."~' ,J~j~,t!t ~t G "" <,,,1,,,,,'" Wellington Trust Company, NA an invesbnent adviser(s) or an invesbnent manager(s), including an affiliate of the Trustee, to assist it in the invesbnent of assets of the Funds, such invesbnent adviser(s) or invesbnent manager(s) to be compensated by either the Trustee or the Funds for such services. It is further understood that the Statement of Characteristics with respect to any Fund into which the Trustee is directing the invesbnent of assets shall be attached hereto as Exhibit B, Disclosure of Certain Information Prior to or simultaneous with the execution of this Invesbnent Agreement, and thereafter upon request by the Trustee from time to time, the Participating Trust shall disclose such information, including but not limited to financial statements, which will enable the Trustee to determine whether the Collective Invesbnent Funds Trust or any Fund which forms a part thereof has entered into a Prohibited lnvestment Agreement Transaction. H such information reveals to the Trustee that assets, liabilities, transactions, agreements, obligations or undertakings on behalf of a Participating Trust would result, or has resulted, in the Collective Invesbnent Funds Trust or any Fund being treated as having entered into a Prohibited Transaction, then the Participating Trust shall either: (a) upon request of the Trustee, immediately dispose of any such assets or liabilities and/or terminate such obligation, agreement, or undertaking; or (b) deliver to the Trustee documents representing all of its beneficial interest so that it may be withdrawn in accordance with the provisions of Article V of the Amended and Restated Plan and Declaration of Trust. Amended and Restated Plan and Declaration of Trust. The Participating Trust directs the Trustee to invest cash pending invesbnent in a Fund into the short term invesbnent fund set forth on Exhibit D attached hereto (the "short term invesbnent fund"). The Trustee will not charge a separate fee with respect to the cash invested in the short term invesbnent fund. Units of beneficial interest in the Collective Invesbnent Funds Trust shall not be assignable and no Participating Trust shall assign, transfer, pledge or otherwise encumber any or all of its interest in the Collective Invesbnent Funds Trust, other than upon withdrawal in accordance with the provisions of Article V of the Amended and Restated Plan and Declaration of Trust. Fees The Participating Trust will pay to the Trustee, as full compensation for services rendered, a fee, in Attachment number 1 Page 2 of 21 f~ Page 2 Admission and Withdrawal; Prohibitions on Transfer Admissions to and withdrawals from anyone or more Funds shall be effected in accordance with the provisions of Article V of the l: <.~ ,..'" accordance with the provISIOns of Exhibit C to this Invesbnent Agreement. Fees charged at the Participating Trust level may vary. Construction of the Agreement and Authority to Enter into Agreement To the extent that state laws shall not have been pre-empted by the provisions of ERISA, regulations of the Office of the Comptroller of the Currency or any other laws of the United States heretofore or hereafter enacted, as the same may be amended, the rights and obligations of the parties hereunder shall be enforced in accordance . with the laws of the Commonwealth of Massachusetts. The Participating Trust represents and warrants that the person signing this Agreement on its behalf is duly authorized to enter into this Agreement and that the Participating Trust intends to and shall be bound by this Agreement. Notice To the Participating Trust at: Any notice, advice or report to be given pursuant to this Invesbnent Agreement shall be delivered or mailed: To the Trustee at: City of Clearwater Employees Pension Plan 100 South Myrtle Avenue Clearwater, Florida 34618 Wellington Trust Company, NA 75 State Street Boston, Massachusetts 02109 Attention: Legal Services Department Wellington Trust Company, NA Item # 2 Wellington Trust Company, N.A. Signatures Attachment number 1 Page 3 of 21 Participation Agreement Page 3 Agreed to and Accepted: Agreed to and Accepted: Board of Trustees of the Employees' Pension Plan of the City of Clearwater, Florida By: By: By: Cynthia E. Goudeau City Clerk Wellington Trust Company, N."'. . . ttem#2 Exhibit A Wellington Trust Company, NA Attachment number 1 Page 4 of 21 Itom 1:f 2 Wellington Trust Company, NA Attachment number 1 Page 5 of 21 WELLINGTON MANAGEMENT @ Multiple Collective Investment Funds Trust Amended and Restated Plan and Declaration of Trust Whereas, Wellington Trust Company, National Association (hereinafter referred to as the "Trustee" when it is acting or is to act as Trustee hereunder), established a trust known as the ""Wellington Trust Company, National Association Multiple Collective Investment Funds Trust" (hereinafter referred to as the "Collective Investment Funds Trust") pursuant to this Plan and Declaration of Trust dated June 24,1982, and most recently amended and restated as of June 15, 1999; and Whereas, the Trustee desires to amend and restate this Plan and Declaration of Trust effective as of the 1st day of January, 2008, having the terms and conditions hereinafter set forth. Now, therefore, the Trustee declares that it will hold and administer in trust all money and property acceptable to it and received or purchased by it as Trustee hereunder, together with the income and proceeds thereof, upon the following terms, conditions and trusts. Article I Definitions Wherever used in this Plan and Declaration of Trust, unless the context clearly indicates otherwise, the following words shall have the following meanings: Section 1.1 "Fund" means: one of the separate investment funds established and maintained in the United States pursuant to Article II to which the particular provisions hereof are being applied. Notwithstanding any other provision of this Plan and Declaration of Trust, only Qualified Trusts (as defined below) may participate in any Fund established hereunder, Section 1.2 "Qualified Trust" means: (a) a trust which forms part of an employee retirement, stock bonus, pension, profit-sharing, or other employee benefit plan: (1) that is exempt from taxation under Section SOl (a) of the Internal Revenue Code of 1986, as amended (the "Code"), by reason of qualifying under Section 401(a) of the Code (or corresponding sections of amendments thereto or statutes enacted hereafter) and, if such trust covers one or more self- employed individuals within the meaning of Section 401(c)(I) of the Code, that satisfies the applicable requirements of the Securities Act of 1933 or Rule 180 of the Securities and Exchange Commission thereunder, or any successor ruling, regulation or similar pronouncement, regarding participation by such plan in a collective investment trust; and (2) that is permitted by existing or future rulings of the United States Internal Revenue Service, or any successor entity, to pool its funds in Wellington Trust Compmty, NA a group trust; and (3) that is maintained pursuant to a plan or trust instrument that specifically authorizes it to participate in collective or commingled trust funds generally; and (4) that is maintained pursuant to a plan or trust instrument that specifically or in substance and effect adopts as a part of the plan of which such trust is a part the declarations of trust or other governing instruments under which collective or commingled trust funds in which such plan participates generally are maintained; and (5) of which Wellington Trust Company, National Association is acting as trustee, co-trustee, agent, or managing agent; (b) an eligible governmental plan, trust or custodial account under Section 457(b) of the Code: (1) that is exempt from federal income taxation under Section 457(g) of the Code; and (2) that is maintained pursuant to a plan, trust or custodial instrument or under statutes or regulations that specifically authorize it to participate in collective or commingled trust funds generally; and (3) that is maintained pursuant to a plan, trust or custodial instrument or under statutes or regulations that specifically or in substance and effect adopt as part of the plan of which such trust or custodial account is a part the declarations of trust or other governing instruments under which collective or commingled trust funds in which such plan participates generally are maintained; and (4) of which Wellington Trust Company, National Association is acting as trustee, co-trustee, agent, or managing agent; (c) any common, collective, or commingled trust fund, including, but not limited to, any such fund maintained by the Trustee: (1) that consists solely of the assets of trusts and plans described in Sections 1,2(a) and (b); and (2) that is exempt from Federal income taxation under Section SOI(a) of the Code by reason of qualifying as a "group trust" under Revenue Ruling 81-100; and (3) that is maintained pursuant to an instrument that specifically authorizes it to participate in collective or commingled trust funds generally; and (4) that is maintained pursuant to an instrument that specifically or in substance and effect adopts as a part thereof the declarations of trust or other governing instruments under which collective or commingled trust funds in which such fund participates generally are maintained; and (5) of which Wellington Trust Company, National Association is acting as trustee, co-trustee, agent, or managing agent; or (d) a segregated asset account maintained by a life insurance company that consists solely of assets of investors that individually satisfy the requirements of Section 1.2(a), (b) or (c) above. Section 1.3 "Participating Trust" means: a Qualified Trust which, with the consent of the Trustee, has: (a) executed an Investment Agreement acceptable to the Trustee; (b) provided to the Trustee a written representation, in such form as the Trustee shall deem appropriate, that it is fully aware of the nature and purpose of the Fund and the Collective Investment Funds Trust; and (c) with prior approval of the Trustee, has transferred assets to the Collective Investment Funds Trust in accordance with Article m. , "w Section 1.4 "Participating Trust Trustee" means: the person or persons who control the investments of the Participating Trust, exclusive of the Trustee or any person who is affiliated with the Trustee or Wellington Management Company, LLP. Article II Establishment of Funds Section 2.1 The Collective Investment Funds Trust shall consist of the Funds currently contained in Schedule A hereto and of such additional Funds as may be established from time to time as provided in Section 2.2; provided, however, that the Trustee may elect that any or all of the Funds described in this Section 2.1 may commence trading subsequent to the date hereof; and, provided further, that the Trustee may from time to time invest such portion of any of the Funds as it may deem advisable in temporary investments, mutual funds, any other property as provided by Section 3.2, or as part of any other Fund or Collective Trust as provided in Section 3,3, Each Fund shall constitute a separate trust and the Trustee shall separately hold, manage, administer, value, invest, reinvest, account for and otherwise deal with each such Fund. The assets and liabilities attributable to a particular Fund shall not be allocable to any other Fund, and no Fund shall be responsible for the expenses or liabilities of any other Fund. The Trustee's determination as to whether or not any investment is within the class or classes of property in which any Fund is to be invested shall be conclusive, Any Participating Trust may have an interest in more than one Fund, and I Item # 2 Wellington Trust Company, NA Amended and Restated Plan and Declaration of Trust Attachment number 1 Page 6 of 21 Page 2 the proportion of its assets which is invested in each Fund may be changed from time to time, Section 2.2 Establishment of Other Funds At any time and from time to time, the Trustee may establish within the Collective Investment Funds Trust one or more additional Funds, each of which shall be invested or reinvested in such classes of property as the Trustee may specify, Upon the addition of one or more Funds, the Trustee shall amend Schedule A accordingly, An updated Schedule A will be made available to each Participating Trust at any time upon request. Section 2.3 Termination of Funds The Trustee may at any time in its sole and absolute discretion terminate any Fund. On that event, the assets held in such Fund shall be distributed to the Participating Trusts having interests therein, or, at the Trustee's discretion, shall be liquidated for their benefit, in the same manner as if such Fund were a liquidating account as provided in Section 5.4. The Trustee shall provide each Participating Trust in a terminating Fund with at least thirty (30) days' prior written notice of such termination, or a shorter notice period in the event the Trustee determines that extraordinary circumstances exist that require notice and termination within a shorter period of time. Upon the termination of any Fund, the Trustee shall amend Schedule A accordingly, Article III Investment and Administration of the Collective Investment Funds Trust Section 3.1 Responsibility and Authority of the Trustee The Trustee shall be solely and exclusively responsible for, and shall have exclusive authority and discretion for, the management and control (including, but not limited to, investment decisions) of the Collective Investment Funds Trust and of each Fund thereunder, except as a prudent person might delegate such responsibilities to others. Subject to the provisions of the preceding sentence, the Trustee may Wellington Trust Company, NA retain the services of such investment or other advisers and consultants (including affiliates of the Trustee) as it may deem desirable to assist it in carrying out its responsibilities, including its responsibilities as Trustee and/or investment manager under this Plan and Declaration of Trust. Section 3.2 Powers and Duties of the Trustee The Trustee shall have, with respect to any property at any time held by it as part of the Collective Investment Funds Trust and constituting part of any Fund, power in its discretion: (a) To invest and reinvest in any property, real, personal or mixed, wherever situated, and whether or not productive of income, including, without limitation, common and preferred stocks; bonds; notes; debentures; non-US securities; stock options and option contracts of any type; contracts for the immediate or future delivery of financial instruments and other property; direct or indirect investments in real property through fee ownership, leases, loans secured by primary or subordinated liens on real property (including, without limitation, any collective or part interest in any bond and mortgage or note and mortgage), or stock or other securities of corporations, partnerships or other entities holding or investing in real property; certificates of deposit; demand or time deposits (including any such demand deposit with the Trustee of funds awaiting investment or distribution); bills; certificates; acceptances; repurchase agreements; commercial paper; variable rate or amount notes; interests in trusts including interests in any Collective Trust described in Section 3,3 below; limited partnership interests; interests in or shares of mutual funds or other investment companies including investment companies for which the Trustee or an affiliate of the Trustee may act as investment adviser or manager (whether or not incorporated and whether or not registered under the Investment Company Act of 1940, as amended); non-US currencies; contracts for the immediate or future delivery of non- US currencies; insurance policies and contracts; oil, mineral or gas properties, royalties, interests or rights (including equipment pertaining thereto); gold, bullion and coin; evidences of indebtedness or ownership in non-US corporations or other enterprises; derivative contracts of any kind or nature, including without limitation, swaps, forwards and futures, and indebtedness of non-US governments, non-US agencies and international organizations; without being limited to classes of property in which trustees are authorized to invest trust funds by any law, or any rule of court, of any State and without regard to the proportion any such property or interest may bear to the entire amount of the Collective Investment Funds Trust or of any Fund; (b) To retain any property at any time received by it; (c) To sell or exchange any property at public or private sale for cash or on credit; to grant options for the purchase or exchange of any property; or otherwise to sell, exchange, convey, transfer or dispose of any property; (d) To participate in any plan of reorganization, consolidation, merger, combination, liquidation or other similar plan relating to such property and to consent to, or to oppose, any such plan or any action thereunder, or any contract, lease, mortgage, purchase, sale or other action by any person or corporation; (e) To the extent permitted by applicable Federal law, to deposit any property with any protective, reorganization or similar committee; to delegate discretionary power thereto and to pay and agree to pay part of the expenses and compensation of any such committee and any assessments levied with respect to any such property so deposited; (f) To exercise all conversion, subscription, or other rights, whether or not discretionary, and including rights to vote and grant proxies, pertaining to any property held by it; (g) To extend the time of payment of any obligation; (h) To enter into stand-by agreements for future investment either with or without a stand-by fee; (i) To hold part or all of any Fund uninvested so long as is reasonable for the proper management of the Fund, without liability for interest; Q) To borrow money from any source as may be necessary or advisable to protect the Collective Investment Funds Trust in the event of a temporary net cash overdraft or similar event; provided, however, that no such loan shall be made by the Trustee individually other than a temporary advance on a net cash overdraft basis and that any such borrowing shall be made only in accordance with applicable regulations and rulings of the Office of the Comptroller of the Currency (the "OCC"). (k) To lend any securities to brokers or dealers and to secure the same in any manner, and during the term of any such loan to permit the securities so lent to be transferred in the name of and voted by the borrower, or others; (1) To register or cause to be registered any investment held by it pursuant to this Plan and Declaration of Trust in the name of a nominee, with or without the addition of words indicating that such securities are held in a fiduciary capacity, or in the name of a nominee of any custodian bank acting pursuant to paragraph (q) of this Section 3.2 or of a depository or clearing corporation, or other system for the central handling of securities, either US or non-US; to hold any such investment in bearer form; and to maintain the indicia of ownership of assets outside the United States of America in conformity with regulations of the United States Department of Labor; (m) To collect and receive any and all money and other property due to the Collective Investment Funds Trust or any Fund and to give full discharge therefore; (n) To settle, compromise or submit to arbitration any claims, debts or damages due to or from the Collective Investment Funds Trust or any Fund; to commence or defend suits or legal proceedings whenever, in its judgment, any interest of the Collective Investment Funds Trust or any Fund requires it; and to represent the Collective Investment Funds Trust or any Fund in all suits or legal proceedings in any court or before any other body or tribunal. (0) To retain, manage, operate, repair, develop, preserve, improve, mortgage or lease for any period any real property held by the Trustee or by any entity organized by it pursuant to paragraph (p) of this Section 3.2 upon such terms and conditions as the Trustee deems ';--1 '. Item #'2. Wellington Trust Company, NA proper, either alone or by joining with others, using other trust assets for any such purposes as it deemed advisable; to modify, extend, renew, waive or otherwise adjust any or all of the provisions of any such mortgage or lease, including the waiver of rentals; and to make such provisions for the amortization of the investment in, or the depreciation of the value, of such property as it may deem advisable; (p) To organize corporations or partnerships or trusts for the purpose of acquiring and holding title to any property which the Trustee is authorized to acquire under paragraph (a) of this Section 3,2; (q) To employ suitable agents, including custodians, record- keepers, auditors, depositories and counsel, US or non-US, and to pay their reasonable expenses and compensation and to charge such expenses to the Fund; and to transfer any assets of any Fund to any custodian or subcustodian employed by the Trustee; (r) To employ such investment managers, advisers and consultants, US or non-US, as the Trustee, in its sole discretion shall deem advisable, including, but not limited to, entities which are affiliates of the Trustee, to perform any of the duties and obligations of the Trustee hereunder, including without limitation investment management, advisory, trading, or similar services incidental thereto, and to charge such expenses to the Fund; (s) To make unsecured advances to Participating Trusts until the next succeeding Valuation Date (as defined below); (t) To purchase for its own account any defaulted investments held by a Fund (at the greater of market value or the sum of cost and earned or paid interest) if, in the Trustee's judgment, the cost of segregating the investment is excessive in light of the market value of the investment; and (u) Generally to do all acts, whether or not expressly authorized, which the Trustee may deem necessary or desirable to carry out the purposes of the foregoing powers or for the protection of the Collective Investment Funds Trust or any Fund, including acts involving the payment of fees to affiliates, Wellington Trust Comp,my, NA Amended and Restated Plan and Declaration of Trust Section 3.3 Investment in Collective Trusts With respect to the investment of (a) all or any portion of the assets of a Participating Trust in a Fund, and (b) the assets of the Fund itself, the Trustee, as a fiduciary of each Participating Trust which may have an interest in the Fund, is authorized, without limitation of the powers granted in Section 3.2 above, to invest all or any portion of the assets of the Fund in interests in one or more common or collective investment funds or trusts ("Collective Trusts") maintained by a bank or trust company (including the Trustee); provided, however, that any investment in or retention of an interest in such Collective Trust shall not adversely affect the qualified or exempt status of this Collective Investment Funds Trust under Section 5Ol(a) of the Code. To the extent that the Trustee invests assets of a Fund in such a Collective Trust, the instrument establishing such Collective Trust shall form a part of this Plan and Declaration of Trust and of the agreement governing each Participating Trust, and any assets transferred to any such Collective Trust shall be held, invested, and administered in accordance with such instrument, which shall be controlling notwithstanding any contrary provision of this Plan and Declaration of Trust or the agreement governing the Participating Trust. Section 3.4 Dealings with Other Persons Persons dealing with the Trustee shall be under no obligation to see to the proper application of any money paid or property delivered to the Trustee or to inquire into the Trustee's authority as to any act or transaction. Article IV Interests of Participating Trusts Section 4.1 Units of Participation Each Fund shall be invested and administered as a single investment fund. The beneficial interests of each Participating Trust in each Fund shall be divided into and represented by units of participation (hereinafter referred to as "Units"). Each Unit of a Fund shall be of equal value to every other Unit, and shall represent an undivided proportionate interest in all assets and liabilities of such Fund and all income, profits, and losses of such Fund shall be allocated to all Units equally. No certificates representing Units shall be issued, but the Trustee shall keep books in which shall be recorded the number of Units and fractions thereof standing to the credit of each Participating Trust. The Trustee may from time to time divide the Units of a Fund into a greater number of Units of lesser value, or lesser number of Units of greater value, provided that the proportionate interest of each Participating Trust in the Fund shall not thereby be changed. Section 4.2 Valuation of the Assets Held in the Funds At such intervals and as of such dates (each of which is herein referred to as a "Valuation Date") as the Trustee may designate from time to time, but not less frequently than once during each period of three months, the Trustee or its valuation agent shall determine the value of the assets held in each Fund. Each valuation shall be made, to the extent reasonably practicable, within ten (10) business days after the Valuation Date as of which it is made, Assets shall be valued at their market values at the close of business on the Valuation Date, or, in the absence of readily ascertainable market values, at such fair values as the Trustee or its agent shall determine in good faith. Securities and investments may be valued on the basis of valuations provided by an independent pricing service when such prices are believed to reflect fair market value. Valuation of the assets held in each Fund will be determined as follows: (a) Securities for which market quotations are readily available, including securities listed on national securities exchanges and those traded over-the-counter, generally shall be valued at the last quoted sales prices on the Valuation Date on the principal or regional exchange on which the security is traded. If such securities were not traded on the Valuation Date, but market quotations are readily available, the securities shaI1 be valued at the most recently quoted bid price provided by an independent pricing service or by .' : ;~'" .~. ,. a~l:.t;A' ! Attachment number 1 Page 7 of 21 Page 3 principal market makers. Prices for securities or investments whose principal trading markets are not within the United States shall be determined from the published records of the exchanges where such principal trading markets are located or from such other sources as the Trustee shall determine to be the best qualified available sources; (b) Fixed-income securities generally shall be valued at the bid price on the Valuation Date, to estimate the price a dealer would pay; the bid price is not a firm quote or the price at which the bonds would necessarily sell. This valuation method takes into account appropriate factors such as institutional-size trading in similar groups of securities, yield, quality ratings, coupon rate, maturity, type of issue, trading characteristics and other market data; and (c) For purposes of establishing the value of non-US investments, non- US currencies shall be valued using the official 4:00 PM London closing spot rates on the Valuation Date, or such other standard industry practice, In those instances where there is no readily ascertainable market value obtainable or where the Trustee deems the application of the foregoing rules to be inappropriate, investments shall be valued on the basis of estimated values on the Valuation Date obtained from recognized qualified available sources, including bankers, brokers or dealers, or any affiliates or employees of the Trustee who deal in or are familiar with the type of investment involved or other qualified appraisers, or by reference to the market value of similar investments for which an appropriate market value is readily ascertainable, The reasonable and equitable decision of the Trustee regarding the value of the assets of each Fund and the methods employed in determining those values shall be conclusive. Section 4.3 Valuation of Units The initial value of each Unit of each Fund shall be established by the Trustee. Thereafter, the value of each Unit of each Fund shall be determined as of each Valuation Date by dividing the net assets (total assets minus liabilities) of the Fund, as established pursuant to Section Item #2' Wellington Trust Company, NA Amended and Restated Plan and Declaration of Trust Attachment number 1 Page 8 of 21 Page 4 4.2, by the number of Units outstanding on such Valuation Date, Section 4.4 Distribution of Fund Income Although the Trustee is under no obligation to distribute Fund Income, the Trustee may, at such intervals and as of such dates (each of which is herein referred to as a "Distribution Date") as it may designate from time to time, distribute Fund Income of a Fund, as the Trustee shall determine in good faith, to each Participating Trust. Fund Income shall mean the total of amounts (representing dividends, interest, rents, royalties and all such other income that the Trustee may determine under uniform rules properly to be included in Fund Income) collected or accrued with respect to a Fund during the period since the last Distribution Date, reduced by all expenses of such Fund due or accrued since the last Distribution Date, as well as any other charge, reserve, liability or debited item that is an appropriate deduction under accepted accounting principles. The determination of the Trustee as to the allocation of such expenses among the Funds shall be conclusive. The interest of each Participating Trust in Fund Income of a Fund which distributes Fund Income shall be determined by dividing the total amount of Fund Income for the Fund by the total number of Units in such Fund as of the business day prior to the Distribution Date, and multiplying the resulting per-Unit Fund Income by the number of Units beneficially owned by such Participating Trust as of the business day prior to the Distribution Date. The interest of each Participating Trust in the Fund Income of the Fund shall, as of such Distribution Date, be reinvested in new Units of such Fund, unless otherwise directed by the Participating Trust Trustee, Section 4.5 Records The Trustee or its agent shall keep such records as it may deem necessary or appropriate in its sole discretion to record the assets transferred to each Fund by each Participating Trust and to show the interest of each Participating Trust in each Fund. Wellington Trust Company. NA Article V Admissions and Withdrawals Section 5.1 Admission to Participation Pursuant to notice received by the Trustee at least ten (10) business days, or such other period as may be determined by the Trustee for a particular Fund, before any Valuation Date, and entered into the records of the Trustee, any Qualified Trust which has executed an Investment Agreement acceptable to the Trustee may become a Participating Trust by the transfer of all or part of its assets to the Trustee and the acceptance thereof by the Trustee, at its sole discretion, for one or more of the Funds. Pursuant to similar notice, additional assets may be admitted to any Fund from time to time by transfer from any Participating Trust, in the sole discretion of the Trustee. Assets shall be accepted for admission to a Fund on the basis of the Unit value of such Fund as of the Valuation Date, as provided in Section 4.3, No notice of admission may be canceled or countermanded after the Valuation Date to which it relates, Assets other than cash accepted by the Trustee shall be valued at their fair market value, as determined by the Trustee or its agent, on the Valuation Date. While any assets of any Participating Trust are held in the Collective Investment Funds Trust, this Plan and Declaration of Trust shall be a part of the plan or plans of which such Participating Trust is part. Section 5.2 Withdrawals from Participation Any Participating Trust may, as of any Valuation Date, withdraw any number of Units from a Fund pursuant to notice received by the Trustee at least ten (10) business days, or such other period as may be determined by the Trustee for a particular Fund, prior to such Valuation Date and entered into the records of the Trustee. No notice of withdrawal may be canceled or countermanded after the Valuation Date to which it retates. Within a reasonable time following the Valuation Date, the Trustee shall distribute to the Participating Trust making such withdrawal a sum determined by multiplying the number of Units withdrawn by the value of each such Unit on the Valuation Date, as provided in Section 4.3. The sum shall be distributed in cash, ratably in kind, or in a combination of cash and ratably in kind, or in any other manner consistent with applicable law in the State where the Fund is maintained, as the Trustee in its sole discretion shall determine. All distributions from the Funds to the Participating Trust Trustee of a Participating Trust shall be deemed to be for the exclusive benefit of participants and their beneficiaries under such Participating Trust. The Trustee retains the right to require a notice period of greater than ten (10) business days in advance of a request for withdrawal, or to delay payment of proceeds with respect to a withdrawal request, in the event the Trustee determines that market disruption events or other circumstances warrant such action(s). Section 5.3 Distribution on Disqualification If at any time it should be determined that any Participating Trust is no longer a Qualified Trust, the Trustee shall distribute to such Participating Trust its entire participation in the Collective Investment Funds Trust (other than any interest it may have in any Liquidating Account, as defined below) as of the next Valuation Date which is more than fifteen (15) days after the date upon which the Trustee is apprised of such disqualification. Section 5.4 Liquidating Accounts Any asset held by the Collective Investment Funds Trust may be transferred to a liquidating account (hereinafter referred to as a "Liquidating Account") when the Trustee, in its sole discretion, decides that the investment should not continue to be part of a Fund. The Trustee may distribute such asset in kind or liquidate it for the benefit of the Participating Trusts at the time of the withdrawal of the asset. In determining the basis upon which admissions to and withdrawals from a Fund shall be made pursuant to this Article V, the value of any asset which has been transferred to a Liquidating Account shall be excluded. Any investment held in a Liquidating Account shall be segregated, and shall be administered or realized upon solely for the benefit ratably of those Participating Trusts which were participants in the Fund from which such asset has been transferred at the time of the transfer of such investment to a Liquidating Account. Article VI Accounting Section 6.1 The Trustee's Accounts The Trustee shall keep full accounts of all of its receipts and disbursements. Its books and records with respect to any Fund shall be open to inspection at all reasonable times during business hours of the Trustee by the authorized representative of any person to whom a regular periodic accounting of any Participating Trust having an interest in such Fund would ordinarily be rendered, Section 6.2 Judicial Accounting Except to the extent otherwise provided by applicable laws of the United States, only the Trustee and any person entitled to a regular periodic accounting under the provisions of any Participating Trust may require the judicial settlement of the Trustee's account, or bring any other action against the Trustee with respect to the Collective Investment Funds Trust or its action as Trustee. In any such action or proceeding, it shall be necessary to join as parties only the Trustee and such persons, and any judgment or decree which may be entered therein shall be conclusive, Section 6.3 Audits and Reports of Funds At least once during each period of twelve (12) months, the Trustee shall cause a suitable audit to be made of each Fund by public auditors responsible only to the Board of Directors of the Trustee, and the reasonable expenses of such audit may be charged to such Fund. After the close of each fiscal year of each Fund, and also after the termination of a Fund, the Trustee shall render a written report, and make such report availabte, without charge, to each person entitled to regular periodic accountings under the provisions of any Participating Trust having an interest in such Fund, based upon such audit, and shall furnish a copy of the report upon request to any other person for a reasonable charge. .; ~.:."..lte.m .#. J~"", Wellington Trust Company, NA . Amended and Restated Plan and Declaration of Trust Attachment number 1 Page 9 of 21 Page 5 The Fund or the Trustee shall pay the printing and distribution charges for reports delivered to Qualified Trusts, Such report shall: (1) list the investments held in the Fund; (2) list the cost and current market value of each such investment; (3) summarize all purchases (with costs) and sales (with profit or loss); (4) state income and disbursements, and any other investment changes in the Fund for the period since the previous report; (5) contain an appropriate notation as to any investments in default in the Fund; and (6) list fees and expenses in a manner consistent with Generally Accepted Accounting Principles in the United States ("GAAP"). Article VII Taxes, Expenses and Compensation Section 7.1 Taxes The Trustee shall deduct from and charge against the Collective Investment Funds Trust or any appropriate Fund: (a) any taxes or other charges paid by it which may be imposed upon the Collective Investment Funds Trust or any Fund; or (b) any income thereof of which the Trustee may be required to pay with respect to the interest of any person therein, by any present or future laws of any jurisdiction or taxing authority. Section 7.2 Expenses and the Trustee's Compensation The Trustee may pay from the Collective Investment Funds Trust or any appropriate Fund all reasonable expenses of administration of the Collective Investment Funds Trust and any Fund, including counsel fees and expenses of litigation, which would have been chargeable to the Participating Trusts if incurred in their separate administration. The Trustee may charge against any Fund from time to time reasonable compensation for its services as Trustee; provided, however, that the compensation is permitted under applicable law and the amount of the compensation does not exceed an amount commensurate with the value of legitimate services of tangible benefit to the Participating Trusts that would have been provided to them were they not invested in a Fund. The Trustee shall absorb the expenses of establishing or reorganizing a Fund. Section 7.3 Allocation The Trustee shall allocate among the Funds the deductions, charges and expenses described in this Article VII in such manner as it shall deem equitable, and such allocation shall be conclusive and binding. Article VIII Miscellaneous Section 8.1 Amendment This Plan and Declaration of Trust, other than Section 8.4, may be amended by the Trustee at any time or from time to time and in any respect; provided, however, that any such amendment shall be approved by a resolution of the Board of Directors of the Trustee. Notice of such amendment shall be sent to each person entitled to regular periodic accountings under the provisions of any Participating Trust. No notice of any amendment will be filed with the ace. Section 8.2 Resignation of the Trustee; Successor Trustee The Trustee under this Plan and Declaration of Trust may resign at any time by giving written notice to each Participating Trust. The resigning Trustee shall appoint, by written instrument, a successor trustee. Any corporation into which the Trustee may merge, or with which it may be consolidated, or to which substantially all of its assets may be transferred, shall be a successor trustee hereunder, Any successor trustee shall have all of the powers and duties herein conferred upon the Trustee without execution or filing of any additional instrument or the performance of any additional act. Section 8.3 Duty of the Trustee The Trustee shall discharge its duties hereunder with the care, skill, prudence and diligence under 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. Section 8.4 Fund for Exclusive Benefit of Participating Trusts; Non- transferability Notwithstanding anything to the contrary contained in this Plan and Declaration of Trust or in any amendment hereto, no part of the Collective Investment Funds Trust which equitably belongs to a Participating Trust, other than that portion required for fees, taxes, expenses and Trustee compensation, shall be used or diverted for any purpose other than the exclusive benefit of the employees or their beneficiaries who are entitled to benefits under such Participating Trust. No Participating Trust may assign or transfer all or any portion of its interest in the Collective Investment Funds Trust or in any Fund. Section 8.5 Reliance on Communications The Trustee shall be fully protected in acting upon any instrument, certificate or paper believed by it to be genuine and to be signed or presented by the proper person or persons, and the Trustee shall be under no duty to make any investigation or inquiry as to a statement contained in any such writing, but may accept the same as conclusive evidence of the truth and accuracy of the statements therein contained. Section 8.6 Termination The Collective Investment Funds Trust created hereby may be terminated at any time by the Trustee for any reason the Trustee, in its sole discretion, deems appropriate. Not less than thirty (30) days' prior written notice of such termination shall be sent to all persons entitled to regular periodic accountings under the provisions of any Participating Trust, After such termination, all distributions from each Fund shall be as if it were a Liquidating Account. Section 8.7 Governing Law Except as otherwise provided by the Employee Retirement Income Security Act of 1974, as amended, if applicable, this Plan and Declaration of Trust shall be construed and regulated by the laws of the Commonwealth of Massachusetts. In the event of conflict between the provisions of this Plan and Declaration of Trust and the Regulations of the acc dealing with collective investment funds, the latter shall prevail, The Collective Investment Funds Trust is organized in the United States and will be maintained at all times as a domestic trust in the United States. Section 8.8 Good Faith Mistakes Notwithstanding any other provision herein, a mistake made by the Trustee in good faith and in the exercise of due care in connection with the administration of the Collective Investment Funds Trust or of a Fund will not be deemed to be a violation of this Plan and Declaration of Trust or of applicable law, so long as the Trustee, promptly after discovery of the mistake, takes whatever action is practical to remedy the mistake, Section 8.9 Availability of Copies of this Plan and Declaration of Trust A copy of this ptan and Declaration of Trust shall be kept on file at the principal office of the Trustee, available for inspection during regular business hours of the Trustee. A copy of this Plan and Declaration of Trust shall be sent upon request to each person entitled to regular periodic accountings under the provisions of any Participating Trust, and will be furnished to any other person upon request, for a reasonable charge, Section 8.10 Titles and Headings The titles and headings in this Plan and Declaration of Trust are for convenience and reference only and shall not limit or affect in any manner any provision contained herein. Wellington Trust Company. NA Iteni# 2 Attachment number 1 Page 100f21 Wellington Trust Company, NA '''''I~'i 'i' Amended and Restated Plan and Declaration of Trust ~. " Page 6 In Witness Whereof, Wellington Trust Company, National Association has caused its name to be hereunto signed by its proper officer thereunto duly authorized, and its corporate seal to be hereunto affixed, effective as of the 1st day of January, 2008. Wellington Trust Company, National Association By: /s/ Jonathon M Payson Jonathan M, Payson, President Attest: /s/ Andrew M Hone Andrew M. Hone, Secretary WTCCIFPDT.doc Wellington Trust Company, NA Item # 2 -- --- Attachment number 1 Page 11 of 21 Multiple Collective Investment Funds Trust Schedule A October 1, 2007 NAME OF FUND Active Asset Allocation Portfolio All Cap Opportunities Portfolio Biotechnology Portfolio Capital Appreciation Equity Portfolio China Opportunities Portfolio Core/Value Portfolio Currency Portfolio Diversified Growth Portfolio Diversified Inflation Hedges Portfolio Emerging Companies Portfolio Emerging Local Currency Portfolio Emerging Markets Portfolio Emerging Markets Debt Portfolio Wellington Trust Company, NA Amended and Restated Plan and Declaration of Trust INVESlMENT OBJECTIVE To provide long-term total return in excess of that provided by a benchmark composed of 50% S&P 500 and 50% Lehman Brothers Aggregate Bond, The Portfolio will be used only as part of a broader asset allocation mandate. To maximize total return. Although the approach is not benchmark-relative, the Russell 3000 Index will be used as a reference benchmark. To achieve long-term capital appreciation through investment in the biotechnology sector. Although the Portfolio is not managed against any specific benchmark, the Nasdaq Biotech Index and the AMEX Biotech Index will serve as reference benchmarks. To achieve the highest possible total return, and returns in excess of the S&P 500 Index. To achieve long-term total return through investments in China and China-related companies. As the Portfolio is not benchmark-oriented, the Portfolio will not necessarily resemble any publicly available index. However, the Hang Seng Mainland Composite ex China Mobile Index is the closest fit in terms of both portfolio and performance characteristics, and is the Portfolio's primary benchmark. A secondary benchmark is the MSCI Golden Dragon Index. To provide total return in excess of the large cap value indices (S&P Barra Value and Russell 1000 Value), and should outperform the S&P 500 Index over longer time periods. To provide long-term total return from dynamic investments in foreign currencies. The performance of the Portfolio will be measured relative to cash, as represented by the Merrill Lynch 3-Month US LIBOR Index. To provide long-term total return in excess of the Russell 1000 Growth Index. To provide returns consistent with the US CPI + 5% over the long-term. The Portfolio will invest in liquid asset categories that offer strong relative performance in a rising-inflation environment. To provide long-term total return in excess of the Russell 2000 Index through investment in smaIl and emerging companies. To generate returns significantly in excess of cash, represented by the Merrill Lynch 3-Month Constant Maturity USD LIBOR Index, through investment in a diversified portfolio of emerging markets local debt instruments and currencies. To achieve long-term total return in excess of the MSCI Emerging Markets Free Index. To generate excess returns over the J. P. Morgan Emerging Markets Bond Index Plus denominated in the base currency through investment in a diversified portfolio of emerging markets debt obligations. Iternaff '2 Attachment number 1 Page 120f21 Multiple Collective Investment Funds Trust Schedule A October 1, 2007 Amended and Restated Plan and Declaration of Trust NAME OF FUND INVESTMENT OBJECTIVE Energy Portfolio Europe Concentrated Portfolio Extended US Quatitative Equity Portfolio Focused Equity Portfolio Global Bond Portfolio Global Contrarian Equity Portfolio Global Diversified Growth Portfolio Global Equities Portfolio Global Growth Portfolio Global Health Care Portfolio Global Industrials Portfolio Global Infrastructure Portfolio Global Perspectives Portfolio Global Research Equity Portfolio Global Retail Themes Portfolio Wellington Trust Company, NA To achieve long-term total return through investment in the energy sector. Although the Portfolio is not managed against any specific benchmark, the Russell 3000 Energy (Equal-Weighted) Index and the Russell 3000 Energy (Cap-Weighted) Index will serve as reference benchmarks. To achieve long-term total return in excess of the MSCI Europe Index. To provide long-term total return in excess of the S&P 500 Index. To provide long-term total return in excess of the S&P 500 Index. To generate excess returns over the Citigroup World Government Bond Index denominated in the base currency. To generate returns which, over the long term, exceed those of the S&P 500 index and the MSCI World Index, by investing in overlooked and misunderstood companies, To provide long-term total return in excess of the MSCI World Growth Index over full market cycles. To provide long-term total return (i.e., over five-year periods) in excess of 2% above the global equity markets as defined by either MSCI All Country World Index. To provide high long-term return in excess of the MSCI World Growth Index. The Portfolio should outperform the MSCI World Index over longer time periods. To provide long-term total return through investment in the healthcare sector. Although the Portfolio is not managed against any specific benchmark, the S&P GSSI Healthcare Index will serve as a reference benchmark. To provide long-term total return in excess of the Custom Global Industrials Index. The Index is a capitalization weighted combination of MSCI Industrials ex Commercial Services, MSCI Materials, and MSCI Automobiles & Components, To provide long-term total return in excess of the Custom Global Infrastructure Index, The Index is primarily composed of utility, telecommunication, and industrial companies within the MSCI AC World Index. To provide long-term total return in excess of the MSCI AC World Index over full market cycles. To achieve long-term ~otal return in excess of the MSCI World Index. To provide long-term total return in excess of the MSCI All Country World Retail Index. It e rf1ail! 12 Attachment number 1 Page 130f21 Multiple Collective Investment Funds Trust Schedule A October 1, 2007 Amended and Restated Plan and Declaration of Trust NAME OF FUND INVESTMENT OBJECTIVE Global Strategic Equity Portfolio Global Utilities Portfolio Global Value Portfolio Growth Portfolio Growth Intersection Portfolio Hedged International Bond Portfolio High Yield Research Portfolio International Growth Portfolio International Mid Cap Growth Portfolio International Quantitative Equity Portfolio International Research Equity Portfolio International Small Cap Quantitative Equity Portfolio International Value Portfolio Japan Select Equity Portfolio Wellington Trust Company, NA I To maximize capital appreciation and generate long-term total returns in excess of the MSCI All Country World Index, by employing a long-term-oriented investment strategy on a global universe of securities. To provide long-term total returns in excess of the MSCI World Utilities Index by investing in equity securities of companies in the utilities sector worldwide'. The objective of Global Value is to provide long-term total return in excess of the MSCI World Index over full market cycles. To provide long-term total return in excess of the Russell 1000 Growth Index. To provide long-term total returns consistently in excess of the Russell 1000 Growth Index. To provide long-term total return in excess of the Citigroup Non-US World Government Bond Index (USD-hedged). To provide long-term total return in excess of the Lehman Brothers High Yield Bond Index, 2% Capped. To achieve high long-term return in excess of the MSCI EAFE Growth Index. The Portfolio should outperform the MSCI EAFE Index over longer time periods. To provide long-term total returns in excess of Fl'SE All-World Developed ex US Mid Cap Index, To provide long-term total return in excess of the MSCI EAFE Index. To achieve long-term total return in excess of MSCI EAFE Index. To provide consistent long-term total returns in excess of the S&P Citigroup EM! ex US Index while managing tracking risk relative to the benchmark. To provide long-term total return in excess of the MSCI EAFE Index over full market cycles. To maximize total return. Although the approach is not benchmark-relative, the MSCI Japan Index will be used as a reference benchmark. A secondary benchmark is the TOPIX Index. Itenl!aiP~ Attachment number 1 Page 14 of 21 Multiple Collective Investment Funds Trust Schedule A October 1, 2007 Amended and Restated Plan and Declaration of Trust NAME OF FUND INVESTMENT OBJECTIVE Japanese Special Situations Equity Portfolio Latin America Equity Portfolio Leveraged Company Opportunities Portfolio Micro Cap Equity Portfolio Mid Cap Growth Portfolio Mid Cap Growth Horizons Portfolio Mid Cap Intersection Portfolio Mid Cap Value Portfolio Opportunistic Core Portfolio Opportunistic Equity Portfolio Opportunistic Investment Portfolio Opportunistic Growth Portfolio Opportunistic Value Portfolio Quality Growth Portfolio Real Estate Securities Portfolio Research Equity Portfolio Research Growth Portfolio Research Value Portfolio , I'e To achieve long-term total return in excess of the broad Japanese market through investment in special value opportunities in the Japanese market. As the Portfolio is not benchmark-oriented, the Portfolio will not necessarily resemble any publicly available index. However, the Russell/Nomura Small Cap Value Index is the closest fit in terms of both portfolio and performance characteristics, and is the Portfolio's primary benchmark. A secondary benchmark is the MSCI Japan Index. To achieve long-term total return in excess of the MSCI EMF Latin America Index. I ~ A non-benchmark oriented approach which seeks to maximize long-term total returns. Overtime, returns should exceed those of the broad US equity market, as represented by the Russell 3000 Index. To provide superior long-term total return primarily by investing in stocks of the smallest capitalization US companies. The Portfolio's benchmark is the Russell Micro Cap Index. To provide long-term total return in excess of the Russell Mid Cap Growth Index. To outperform the Russell Mid Cap Growth Index by investing in mid-cap companies with significant long-term growth potential. To provide long-term total return in excess of the S&:P MidCap 400 Index. To provide long-term total return in excess of the Russell 2500 Value Index. To provide long-term total return in excess of the Russell 1000 Index. To provide long-term total return in excess of that of the S&P 500 Index. To outperform a benchmark consisting of 65% s&P 500 Index/35% LB Aggregate Index. To provide long-term total return in excess of the Russell 1000 Growth Index. To provide long-term total return in excess of the Russell 1000 Value Index. To provide long-term total return in excess of the Russell 1000 Growth Index. To provide long-term total return in excess of the Wilshire Real Estate Securities Index. To achieve long-term total return in excess of the S&:P 500 Index. To achieve long-term total return in excess of the Russell 1000 Growth Index. To achieve long-term total return in excess of the Russell 1000 Value Index. Wellington Trust Company. NA Iterrf.~ Attachment number 1 Page 150f21 Multiple Collective Investment Funds Trust Schedule A October 1, 2007 NAME OF FUND Select Intrinsic Value Portfolio Select Mid Cap Value Portfolio Small Cap 2000 Portfolio Small Cap Growth Portfolio Small Cap Quantitative Equity Portfolio Small Cap Value Portfolio Special Equity Portfolio Strategic Growth Portfolio Target 2010 Portfolio (Series Z) Target 2020 Portfolio (Series Z) Target 2030 Portfolio (Series Z) Target 2040 Portfolio (Series Z) Target 2050 Portfolio (Series Z) Technical Equity Portfolio TIPS Portfolio Treasury Maturity 2008 Portfolio US Market Neutral Portfolio Value Portfolio Wellington Trust Company, NA Amended and Restated Plan and Declaration of Trust ';;" i.. 'JiI-.-: INVESTMENT OBJECfIVE To achieve long-term total returns in excess of the broad market as represented by the Russell 3000 Index, To provide long-term total return in excess of the Russell 2500 Value Index. To provide returns consistently above those of the Russell 2000 Index. To provide superior total return relative to the Russell 2000 Growth Index. To provide consistent long-term total returns in excess of the Russell 2000 Index while managing tracking risk relative to the benchmark. To provide long-term total return in excess of the Russell 2000 Value Index. To achieve returns in excess of the broad market as represented by the Russell 3000 Index. To provide long-term total returns in excess of the S&:P 500 Index. To provide long-term total return in cecess of a Composite Index, the weighted blend of the benchmarks of the component asset classes of the Portfolio. To provide long-term total return in cecess of a Composite Index, the weighted blend of the benchmarks of the component asset classes of the Portfolio. To provide long-term total return in cecess of a Composite Index, the weighted blend of the benchmarks of the component asset classes of the Portfolio. To provide long-term total return in cecess of a Composite Index, the weighted blend of the benchmarks of the component asset classes of the Portfolio. To provide long-term total return in cecess of a Composite Index, the weighted blend of the benchmarks of the component asset classes of the Portfolio. To provide long-term total return in excess of the S&:P 500 Index. To provide inflation protection and long-term total return in excess of the Lehman Brothers US 1-10 Year TIPS Index. To obtain a predictable rate of return over the specified time period with minimal risk of principal loss, through investment in and active management of zero-coupon US Treasury securities maturing on the selected target date. To provide long-term total return in excess of the Merrill Lynch 3-Month US Treasury Bill Index. To provide total returns in excess of the large cap value indices (S&:P Barra Value and Russell 1000 Value). The Portfolio should also outperform the S&:P 500 Index over longer time periods. Itert'Ps;52 Investment Objective Investment Policies Attachment number 1 Page 160f21 Exhibit B Wellington Trust Company, NA Collective Investment Fund Emerging Markets Portfolio Statement of Characteristics The objective of the Emerging Markets Portfolio (the "Portfolio") is to achieve long-term total return in excess of the MSCI Emerging Markets Index. The Portfolio will adhere to the following investment policies: 1 Asset Mix - The Portfolio generally will be fully invested in equity and equity- related securities issued by companies located in developing countries. The Portfolio may invest a portion of its assets in equity securities of issuers that, while not domiciled in developing countries, have or will have substantial assets in developing countries or derive or expect to derive a substantial portion of their total revenues from either goods and services produced in, or sales made in, developing countries. The normal cash level will be 5% of assets or less, but may occasionally exceed this number during periods of extreme market volatility. 2 Eligible Investments - The Portfolio will invest in locally-listed common stocks and securities traded in over-the-counter markets, ADRs, EDRs, GDRs, ADSs and similar depository securities, and country funds. The Portfolio may hold private placements and other restricted securities the liquidity of which is deemed appropriate by the portfolio manager, and may invest in commingled pool vehicles offered by Wellington Trust Company, NA, the investment objectives of which are consistent with those of the Portfolio. Although not expected to be a principal investment tool, the Portfolio may make use of derivative securities (including futures contracts, options on futures contracts, and over-the-counter derivatives) for the purposes of reducing risk and/ or obtaining efficient investment exposure. 3 Style - The investment style involves bottom-up stock selection with top-down country and sector allocations. The Portfolio will be well diversified across markets, sectors and companies. Total return, rather than income generation, will be emphasized. 4 Diversification - The Portfolio generally will be well diversified, investing in a minimum of five countries. Typically, no one country will represent more than Item # 2 Wellington Trust Collective Investment Fund Page 1 Portfolio Characteristics Attachment number 1 Page 17 of 21 Wellington Trust Company, NA Collective Investment Fund Emerging Markets Portfolio Statement of Characteristics Page 2 35% of Portfolio holdings. The Portfolio typically will hold in excess of 100 companies. 1 Variability of Return - Tracking risk relative to index returns is expected to be moderate to high, typically between approximately 5% and 10% over longer time periods, but may fall outside of this range over shorter time periods. Active country, sector, stock and currency selection will contribute to return variability over time. 2 Marketability - While the Portfolio will be invested primarily in the more liquid securities in the emerging markets universe, securities listed in emerging markets may from time-ta-time, because of their developing nature, experience periods of lessened liquidity. In general, no more than 20% of assets will be held in illiquid securities. 3 Yield - Dividend yield is not an objective of the Portfolio. The Portfolio's yield will be a fallout of security selection. 4 Turnover - Turnover is expected to be moderate to high. Turnover may increase during periods of extreme market volatility. 5 Currency - The base currency of the Portfolio is US dollars. The non-dollar currency exposure of the Portfolio normally will be unhedged. At times, currency hedging of an equity position may be employed to protect or enhance investments. 6 Significant Risk Factors - The Portfolio faces a number of investment risks greater than those normally associated with investment in non-US securities. . Investment and repatriation restrictions. A number of emerging markets restrict, to varying degrees, foreign investment in securities. Restrictions may include maximum amounts foreigners can hold of certain securities, and registration requirements for investment and repatriation of capital and Wellington Trust Collective Investment Fund Item # 2 Page 2 Use of Futures and Options on Futures Attachment number 1 Page 180f21 Wellington Trust Company, NA Collective Investment Fund Emerging Markets Portfolio Statement of Characteristics Page 3 income. New or additional restrictions may be imposed subsequent to the Portfolio's investment in a given market. · Currency fluctuations can be severe in developing countries that have both floating or "fixed" exchange rate regimes. The latter can undergo sharp one- time devaluations. · Potential market volatility. Many emerging markets are relatively small, have low trading volumes, suffer periods of illiquidity and are characterized by significant price volatility. Regulation and oversight of trading activity may not be up to US standards. · Political instability and government interference in the private sector. This varies country by country, and may evolve to the detriment of Portfolio holdings. In particular, some developing countries have no legal tradition of protecting shareholder rights. · Financial disclosure and accounting standards. Potential investments may be difficult to evaluate given lack of information and accounting, auditing and financial reporting standards that differ from country to country, and from that of the US. · Taxation. Taxation of dividends and capital gains varies among countries and, in some cases, is comparatively high. In addition, developing countries typically have less-well-defined tax laws and procedures and such laws may permit retroactive taxation, so that the Portfolio could in the future become subject to local tax liability that had not been reasonably anticipated when an investment was made. Wellington Trust Company, NA has claimed an exclusion from the definition of the term "commodity pool operator" under the Commodity Exchange Act and, therefore, is not subject to registration or regulation as a pool operator under said Act. Wellington Trust Collective Investment Fund Item # 2 Page 3 Advisory Fee Operating Expenses Transaction Charge Attachment number 1 Page 190f21 Exhibit C Wellington Trust Company, NA Emerging Markets Portfolio Collective Investment Fund Fee Schedule The total annual fees and expenses of the Emerging Markets Portfolio (the "Portfolio") include both an investment advisory fee (the" Advisory Fee") and routine operating expenses (e.g., custody, accounting, audit, and transfer agency services) (the "Operating Expenses"). The Advisory Fee will be determined each quarter by applying one-fourth of the annual rate shown in the table below to the client's average month-end net assets, and will be billed to the client quarterly in arrears. Average Month-End Portfolio Net Assets First $25 million Next $25 million Over $50 million Advisory Fee (Annual Rate) 1.00% 0.90% 0.80% Minimum Advisory Fee $50,000 The Operating Expenses of the Portfolio are accrued daily, reflected in the Portfolio's Net Asset Value ("NA V") calculation, and paid as required. Currently, the Operating Expenses are capped at 0.05% per annum of the net assets of the Portfolio. Operating Expenses above the capped amount will be borne by the Trustee. The Trustee may adjust the cap after providing the Participating Trust notice of the change. Additionally, a transaction charge of 0.60% will be assessed on the value of all purchases and redemptions and paid to the Portfolio, with the following exceptions: . income distributions from the Portfolio to clients; . units purchased through reinvestment of income distributions; . unit liquidations for the purpose of settling quarterly management fees. Wellington Trust Company, NA reserves the right, in its sole discretion, and upon prior written notice to the client, to change the amount of the transaction charge. Item # 2 Wellington Trust Company, NA Investments in Other Commingled Vehicles Attachment number 1 Page 20 of 21 Wellington Trust Company, NA Emerging Markets Portfolio Collective Investment Fund Fee Schedule The Portfolio may invest in commingled pool vehicles offered by the Trustee, as deemed by the portfolio manager to be consistent with the investment discipline, provided that there is no duplication of investment management fees due to such investments. Such investments may accrue operating expenses internal to the NA Vs of the pool vehicles, and those expense accruals are separate from and in addition to the Operating Expense cap of the Portfolio. October I, 2007 Wellington Trust Company, NA Item # 2 Page 2 Attachment number 1 Page 21 of 21 Exhibit D Wellington Trust Company, NA Short Term Cash Investments The Participating Trust directs the Trustee to invest cash pending investment in any Fund in the SSgA Prime Money Market Fund (the "Money Market Fund"). The Participating Trust acknowledges receipt of a copy of the prospectus for the Money Market Fund. Fees associated with the Money Market Fund are described in its prospectus. The Trustee will not charge a separate fee with respect to the cash invested in the Money Market Fund. ItAm # ? Wellington Trust Company, NA ~I'" 1,::tl"'IW'9",1 Attachment number 2 Page 1 of 2 WELLINGTON MANAGEMENT @ Wellington Trust Company, NA 75 State Street Boston Massachusetts 02109 Telephone: (617) 951-5500 December 7, 2007 Mr. Stuart Kaufman, Esquire Klausner & Kaufman, P.A. 10059 N.W. 1st Court Plantation, Florida 33324 Re: Letter Agreement Dear Mr. Kaufman: Upon execution of the Investment Agreement (the" Agreement") dated on or about February I, 2008, by and between City of Clearwater Employees Pension Plan and Wellington Trust Company, NA. (Wellington Trust). Wellington Trust expressly acknowledges, represents, warrants and agrees that it is a "fiduciary" (as that term is defined in Section 3(21) A of ERISA) to the City of Clearwater with respect to those assets which the City of Clearwater granted Wellington Trust discretion to invest said assets in the Wellington Trust Multiple Collective Investment Funds Trust pursuant to the terms and conditions of the Agreement. Wellington Trust further acknowledges, represents, warrants and agrees that for any legal action or proceeding arising out of or in connection with Wellington Trust's fiduciary duty to the City of Clearwater, those legal actions or proceedings will be governed by, construed, and enforced in accordance with the internal laws of the State of Florida and Wellington Trust agrees to the jurisdiction of the courts of the State of Florida. For any legal action or proceedings out of or in connection with the City of Clearwater's investments in the Wellington Trust Multiple Collective Investment Funds Trust made pursuant to and in accordance with the terms and conditions as stated in the Agreement and the Amended Plan and Declaration of Trust, those legal actions or proceedings will be governed by, construed, and enforced in accordance with the internal laws of the Commonwealth of Massachusetts. If you agree to and accept the terms of this letter, please so indicate by signing, dating, and returning both originals to Timothy Maul, Client Service Manager, a fully- executed original letter will be returned to your attention. If you have any questions regarding this letter, please do not hesitate to contact Vincent Pietropaolo, Vice President and Counsel, Legal Services Department, at (617) 790-7592, or Mr. Maul at (617) 289-3704. Thank you. Item # 2 Attachment number 2 Page 2 of 2 December 7, 2007 Mr. Stuart Kaufman, Esquire Page Two WELLINGTON TRUST COMPANY, NA o By: Nam Title: Agreed to and Accepted this _ day of , 2007 BOARD OF TRUSTEES OF THE EMPLOYEES' PENSION PLAN OF THE CITY OF CLEARWATER, FLORIDA By: Name: Frank V. Hibbard Title: Chairperson Attest: By: Name: Cynthia E. Goudeau Title: City Clerk cc: Timothy Maul Item # 2 Attachment number 3 Page 1 of 9 EV EATON VANCE MANAGEMENT Eaton Vance Management The Eaton Vance Building 255 State Street, Boston, MA 02109 (617) 482-8260, (80Q) 225-6265 January 17, 2008 Mr. Stuart A. Kaufman, Esquire Klausner & Kaufman, P.A. 10059 N.W. 1st Court Plantation, Florida 33324 RE: City of Clearwater Employees' Pension Plan Eaton Vance Collective Trust for Employee Benefit Plans - Emerging Markets Fund Dear Stuart, Enclosed are two signed copies of the adoption agreement for the Eaton Vance Emerging Markets Fund and two copies of the transfer agency authorization form for the board to execute at their next meeting. Please have all copies signed and then have an original of each returned to my attention. Thank you for your assistance. Please call if you have any questions. Best, ~1I,opY' ~at~~~r REC: ~":''''''1'~ rED JA.N 8 (:008 BY:_ Enclosures KNOWLEDGE . INNOVATION . EXCELLENCE Item # 2 Attachment number 3 Page 2 of 9 .- EATON VANCE TRUST COMPANY COLLECTIVE INVESTMENT TRUST FOR EMPLOYEE BENEFIT PLANS ADOPTION AGREEMENT Agreement made as of the 19th day of Februarv, 2008, by and between City of Clearwater, Florida (the "Fiduciary") on behalf of the City of Clearwater Employees Pension Plan (the "Plan") and Eaton Vance Trust Company, as trustee ("EVTC"). Terms not defined herein have the meanings given them in the Declaration of Trust (defined below). WHEREAS, the Fiduciary desires to permit certain assets of the Plan, to be invested as part of the Eaton Vance Trust Company Collective Investment Trust for Employee Benefit Plans (the "Collective Trust") established by EVTC pursuant to a certain Declaration of Trust dated as of December 23,2004, including any amendments and Supplemental Declarations thereto (the "Declaration of Trust"); and WHEREAS, EVTC consents to the admission of the Plan as a Participating Trust (as such term is defined in the Declaration of Trust) in the Collective Trust; NOW, THEREFORE, the parties hereby represent and agree as follows: 1. Establishment of Account. The Fiduciary hereby retains EVTC and EVTC hereby agrees to provide investment management services for such portion of the Plan's assets as may be designated by the Fiduciary and agreed upon by EVTC from time to time (hereafter referred to as the "Account"). 2. Authority and Adoption. (a) EVTC is authorized to invest all the Account assets delivered to it pursuant to this Adoption Agreement in the Large Cap Value Fund, the Investment Grade Income Fund, the High Yield Fund, Emerging Markets Fund and/or the Large Cap Growth Fund (the "Funds"), which Funds are established and maintained under the Collective Trust, except for amounts held temporarily before admission to or after withdrawal from the Funds and such amounts designated by the Fiduciary in writing to be invested in such other investments designated by Fiduciary and agreed to by EVTC, including one or more other commingled investment funds established and maintained by EVTC. The Collective Trust is hereby specifically adopted as part of the Plan, and the Declaration of Trust effective December 23,2004, as may be amended from time to time, is hereby specifically incorporated as part of the Plan. The Plan acknowledges having received a copy of such Declaration of Trust and agrees to be bound by its terms. Assets of the Account managed under this Adoption Agreement may be commingled with assets of other tax qualified employee benefit trusts (and entities in which such trusts participate) that are eligible to participate in the Collective Trust. (b) EVTC is authorized to maintain the allocation of the Account's assets among the Funds maintained under the Collective Trust initially in accordance with the Fiduciary's instructions as set forth in Exhibit A hereto and to vary the allocations among the Funds to achieve the investment objective specified in writing by the Fiduciary from Item # 2 Attachment number 3 Page 3 of 9 time to time. EVTC shall advise the Fiduciary of the allocation of such funds as of each month-end. EVTC is hereby authorized to adopt on behalf of the Plan (without further action on behalf of the Fiduciary) the declaration of trust of any other common, collective, or commingled trust fund maintained or advised by EVTC or its affiliates (which meets the requirements of Revenue Ruling 81-100) as part of the Plan for purposes of providing one or more investment vehicles for Account assets as EVTC may deem advisable. Such declaration of trust, as it may be amended from time to time, shall be specifically incorporated as part of the Plan and this Adoption Agreement, and the Plan agrees to be bound by its terms. 3. Withdrawals. At the Fiduciary's request by notice to EVTC, EVTC shall withdraw assets of the Account from the Collective Trust as of the next date of valuation of the Collective Trust's assets ("Valuation Date") for which a withdrawal notice is timely made in accordance with the provisions of the Declaration of Trust and pay the proceeds of such withdrawal to the Plan, as directed by the notice and in accordance with the Declaration of Trust. 4. Representations of Plan. (a) The Plan through the Fiduciary represents and warrants to EVTC that: (i) the Fiduciary has authority to appoint EVTC as trustee and investment manager, and to enter into this Adoption Agreement on behalf of the Plan, and the trust documents and other documents under which the Plan is operated provide the Fiduciary with the authority to incorporate the Declaration of Trust by general or specific reference and to make the investment and grant the approvals provided herein; and (ii) (A) the Plan is a pension, profit-sharing, or other employee benefit trust exempt from Federal income taxation under Section 501(a) ofthe Code by reason of qualifying under Section 401 (a) of the Code and, if the Plan covers one or more self-employed individuals within the meaning of Section 401 (c)(1) of the Code, which satisfies the applicable requirements of the Securities Act of 1933, as amended from time to time (or Rule 180 of the Securities and Exchange Commission thereunder, or any successor ruling, regulation, or similar pronouncement), regarding participation in a collective investment trust; (B) the Plan is any of the following plans which satisfies the applicable requirements of the Securities Act of 1933 and the Investment Company Act of 1940, as each is amended from time to time (or any applicable rules ofthe Securities and Exchange Commission thereunder), regarding participation in a collective investment fund: (1) a plan established and maintained for its employees by the U.S. Government, by the government of any State or political subdivision thereof, or by any agency or instrumentality of the foregoing, within the meaning of Section 414( d) of the Code, (2) an eligible deferred compensation plan within the meaning of Section 457(b) of the Code established and maintained by an eligible governmental employer described in Section 457(e)(1)(A) of the Code; or (3) any other governmental plan or unit described in Section 818(a)(6) of the Code; or (C) the Assets held in the Account are and shall remain assets of a separate account maintained in connection with a contract of an insurance company which consists solely of the assets of trusts and plans described in clauses (A) and (B) of this paragraph. The Fiduciary shall furnish EVTC with a copy of the Plan's most recent favorable determination letter from the Internal Revenue Service establishing its exempt status or with other evidence satisfactory to EVTC that Fiduciary qualifies to invest in the Collective Trust. Item # 2 ^"':;:<.:-~-:",~ "" Attachment number 3 Page 4 of 9 (b) If the Plan is a collective trust which is exempt from tax under Section 501 (a) of the Code by reason of meeting the requirements of Revenue Ruling 81-100, the Plan represents and warrants, in addition, that each of the representations made in Section 4(a)(ii) of this Adoption Agreement is true and correct with respect to each investor in the Plan. 5. Broker. Subadviser and Subcustodian. Transactions for each Fund shall be effected through a broker selected by EVTC. All brokerage fees shall be paid from the relevant Fund. EVTC, in its sole discretion, may retain the services of a sub adviser and/or.subcustodian for the Collective Trust. 6. Confidential Relationship. All information, recommendations, and advice furnished by EVTC to the Plan under this Agreement shall be regarded as confidential by the Plan and by Fiduciary. By acceptance of this Agreement, EVTC agrees to keep in strict confidence all information concerning the affairs of the Plan and Fiduciary. 7. Securities Lending. If EVTC lends securities held in the Funds to broker-dealers and certain financial institutions, such loans will be continuously secured by collateral consisting of cash, u.S. Government securities, and such other forms of collateral as may be permitted from time to time by Prohibited Transaction Exemption 2006-16 issued by the u.S. Department of Labor, as amended from time to time, or any successor exemption, or otherwise, in an amount at least equal to the market value of the securities loaned. . 8. Scope of EVTC's Discretion. It is understood that EVTC may for various reasons have different recommendations to, or take different investment action for, other clients or make recommendations to, or direct investment action for, different clients at different times. 9. Limitation on Investment Authority and Responsibility. EVTC and its affiliates shall have no authority or responsibility pursuant to this Agreement to advise the Fiduciary regarding any assets of the Plan not designated by the Fiduciary for the Account. In addition, EVTC shall have no authority or responsibility with respect to any Plan assets managed by any affiliate, pursuant to any agreement or understanding other than this agreement. The Fiduciary shall give EVTC prompt written notice if the Plan deems its investment in the Collective Trust, or any transactions contemplated by this Agreement to be in conflict with restrictions in the Plan or its related trust and/or any current or future laws of any state and/or any other contract or instrument that purports to bind the Fiduciary or the Plan. 10. Representations of EVTC. EVTC confirms that it is a bank:, as defined in the Investment Advisers Act of 1940, and acknowledges that it is an "Investment Managers" and fiduciary with respect to the assets in the Account, which EVTChas been given authority to manage. EVTC also represents that it has insurance coverage for fiduciary liability. 11. List of Affiliates. The Fiduciary hereby agrees to, upon request, identify the sponsor of the Plan, and provide a current list of affiliates of the sponsor of the Plan and any and all further information which EVTC may deem necessary or appropriate in connection with the Plan's investment in the Collective Trust. Item # 2 Attachment number 3 Page 5 of 9 12. Notices. Notices and other communications pursuant to this Agreement shall be deemed duly given if transmitted to the following address or at such other addresses as either party may from time to time designate in writing: To the Fiduciary and/or the Plan: Finance Director City of Clearwater PO Box 4748 Clearwater. FL 33756-5520 To EVTC: Eaton Vance Trust Company The Eaton Vance Building 255 State Street Boston, Massachusetts 02109 Attn: Frederick S. Marius 13. Term of Agreement. The term of this Adoption Agreement shall begin on the date the Adoption Agreement is accepted by EVTC, as set forth below, and may be terminated at any time without penalty by written notice delivered by either party to the other. Upon termination, the Plan may withdraw assets of the Account from the Collective Trust only in accordance with the provisions of the Declaration of Trust. During the interim between notice of termination and the date of payment, EVTC shall continue to serve in accordance with the Declaration of Trust and this Adoption Agreement for assets of the Account remaining in the Collective Trust. The effective date of termination shall be specified in such notice. In the event of termination of this Adoption Agreement, all fees payable to EVTC shall be pro-rated to the date of payment, and all assets of the Account then held in a custodial capacity by EVTC shall be transferred as soon as possible to any persons or entities as directed by Fiduciary. EVTC shall have no liability for making any such transfer of assets. 14. Non-Exclusivity. EVTC acknowledges that this Agreement is not an exclusive contract and that, during its term, the Plan may contract with others to act as custodian, trustee, or investment manager of other assets. 15. No Assignment. Neither party shall assign this Agreement without the written consent of the other party. 16. Representations by Fiduciary. The execution and delivery of this Adoption Agreement by the Fiduciary shall constitute a representation by the Plan that the term,s hereof do not violate any obligation by which the Plan is bound and that the Plan possesses the legal power and authority to enter into and execute this Adoption Agreement. If the Fiduciary is a corporation, such execution and delivery constitutes a representation that this Agreement has been duly authorized by appropriate corporate action and that the Fiduciary will, on request, supply to EVTC a certified corporate resolution or such other documentation a~ EVTC may reasonably require which evidences authority. Item # 2 .: . Attachment number 3 Page 6 of 9 IN WITNESS \VHEREOF, the parties have executed this Adoption Agreement as of the date and year first above written. City of Clearwater Employees Pension Plan (Full Name of Plan) Plan Year End: December 31 st Plan Sponsor: City of Clearwater. Florida Plan Sponsor EIN: 59-6000289 Plan Number: N/A (e.g., 001, 002, etc.) Plan Tax ID Number: N/ A By: FIDUCIARY (Print Name) Frank V. Hibbard Chairperson Dated: FIDUCIARY SIGNATURE (on behalf of itself, as to the representations in Sections 4(a) and 16 only) BOARD OF TRUSTEES OF THE EMPLOYEES' PENSION PLAN OF THE CITY OF CLEARWATER, FLORIDA Attest: Cynthia E. Goudeau City Clerk AGREED and ACCEPTED, this ~ day of January, 2008. ArrEST: EATON VANCE TRUST COMPANY BY~~ By: ~dJ1~lJi}t[L Item # 2 Large Cap Value Fund EXHIBIT A TRUST ASSETS ALLOCATED INITIALLY TO THE FUNDS _. . . ".. * PORTFOLIO NAME AMOUNT Investment Grade Income Fund $ $ High Yield Fund $ Emerging Markets Fund $25.000.000 Large Cap Growth Fund $ Item # 2 Attachment numb Page 8 of 9 Eaton Vance Trust Company 255 State Street, Boston, MA 02109 Decembm 20, 2007 VIA OVERNIGHT MAIL Frank V. Hibbard, Chairperson City of Clearwater Employees Pension Plan Re: Letter Agreement Deaf Mayor Hibbard: Upon execution of the Adoption Agreement dated December 19, 2007 (the "Agreement") by and between Eaton Vance Trust Company (Eaton Vance) and the City of Clearwater Employees Pension Plan (City of Clearwater), Eaton Vance expressly acknowledges, represents, warrants and agrees that it is a "fiduciary" (as that term is defined in Section 3(21)A of ERISA) to the City of Clearwater '.Vitll respect to those assets which the City of Clearwater granted Eaton Vance discretion to invest said assets in the Eaton Vance Collective Investment Tn.1st pursuant to the terms and conditions of the Agreement. Eaton Vance further acknowledges, represents, warrants and agrees that for any legal action or proceeding arising out of or in connection with Adoption Agreement, Offering Memorandum. Declaration of Trust, and/or Supplemental Declaration, Eaton Vance agrees to tile jurisdiction of the courts of the 8t3te of Florida, with venue in Pinellas County. If you agree to and accept the terms of this letter, please so indicate by signing, dating, and returning both originals to Frederick S. Marius, a fuliy-executed original lettef will be returned to your attention. Thank you. nce Trust Company iMP, ~A.O ~. Lisa Jo es Vice President AGREED AND ACCEPTED: BOARD OF TRUSTE::S OF THE EMPLOYEES' PENSION PLAN OF THE CITY OF CLEARWATER, FLORIDA By: Frank V. Hibbard Chairperson Attest: ---..----- Cynthia E.. Goudeau City Clerk Item # 2 Attachment number 3 Page 9 of 9 Eaton Vance Collective Investment Trust Transfer A2encv Authorization Form Emer2in2 Markets Fund Name of Plan: _ City of Clearwater Emplovees Pension Plan Wire Instructions for redemption and distribution proceeds (standing wire instructions unless instructed by authorized individual). Bank: Location: ABA # Attention: Account #: 001260030758 Further Credit: _City of Clearwater, Consolidated Cash _Bank of America _Charlotte, NC _026009593 The following people are authorized to act on behalf of this account: Name Signature Telephone t1. Fax t1. Margaret L. Simmons_ L-rru,..I rL~.~ (727) 562-4538 Brian" Jay" Ravins 1l~(727) 562-4533 Steven Moskun ~ (727)562-4532 (727) 562-4538 (727) 562-4535 (727) 562-4535 Wire Policy: Wires that are received without notification to the Trustee will not be credited until instructions are received from an authorized individual. If a wire is not received by 3 :00 p.m. on the required date to fund a purchase, the purchase will be credited to the following day. Redemption Policy: Redemption requests will be executed upon receipt of a letter of instruction authorized by the Fiduciary or authorized officer as listed above. Dated: By: FIDUCIARY Frank V. Hibbard, Chairperson BOARD OF TRUSTEES OF THE EMPLOYEES' PENSION PLAN OF THE CITY OF CLEARWATER, FLORIDA Attest: Cynthia E. Goudeau City Clerk Item # 2 Meeting Date:2/19/2008 Pension Trustees Agenda Council Chambers - City Hall SUBJECT / RECOMMENDATION: Approve hiring Security Capital Research and Management Inc. as a REIT manager for a performance based fee and authorize staff to sign the appropriate contracts. SUMMARY: At the Pension Trustee meeting on August 13,2007 the Trustees reaffirmed the Plan's commitment to a ten percent allocation to REITs as recommended in the Asset Allocation Study. The Trustees also authorized Dahab Associates to assist staff in this search. Dahab posted a RFQ on their website and contacted prospective managers. Dahab received a total of 32 responses to the RFQ. The RFQ responses have previously been furnished to the Trustees. Staff reviewed the thirty-two responses and with the consultants narrowed the list to four firms for finals presentations. Adelante Capital Management FAF Advisors, Inc. T. Row Price Associates, Inc. Security Capital Research and Management Inc. As a result of the finals presentation the Pension Investment Committee is recommending that Security Capital Research and Management, Inc. be retained as the REIT manager. The product that the Security Capital offers has a track record of over ten years. The securities in the portfolio are selected using a rigorous bottom-up investment process based on three disciplines: real estate research, company analysis and market strategy. The product has the following average returns: Since Inception 3-year return 5-year return Security Cap 18.9 % 22.5 % 24.5% Benchmark 15.2% 19.7% 22.5% Security Cap offers the following two fees restructures: The first structure is a flat fee structure based entirely on the value of the portfolio. 100bp on the 1 st $10 million 75bp on the next $15 million 70bp on the next $25 million 65bp on the next $25 million Under the first fee structure an account with an average value of $60 million would have an annual fee of $452,500. The second structure is a flat fee of 65 basis points per annum fee (example $390,000 for $60 million investment), with an annual performance fee equal to 5% of the multiple by the Wilshire Real Estate Security Index (W ARESI) out performance for the period. As an example, if the account's average value for the year was $60 million and it out performed the W ARESI by 2.00%, the performance fee for the period would be $60,000. The total annual fee would be $450,000. The Pension Investment Committee recommends the performance fee structure. Staff will average into this asset class over time. The funding for this new allocation will come from a rebalancing of tll~86lo~o Cover Memo Review Approval: 1) Office of Management and Budget 2) Legal 3) Clerk 4) Assistant City Manager 5) Clerk 6) City Manager 7) Clerk Cover Memo Item # 3 ...". -- Attachment number 1 Page 1 of 20 . --- . lilil -e SECURITY CAPITAL PREFERRED GROWTH LLC January 17, 2008 VIA OVERNIGHT MAIL Mr. Stuart A. Kaufman Klausner & Kaufman, P.A. 10059 N.W. 1st Court Plantation, Florida 33324 RE: Employees' Pension Plan of the City of Clearwater, FL Dear Stu: Please find enclosed the Security Capital Research & Management Investment Advisory Agreement for the Employees' Pension Plan of the City of Clearwater, FL, which has been signed by Security Capital. Please review and approve the Agreement, and then forward it to the City for their signature. Once complete, please have the City forward the original to my attention. Should you have any questions or need additional information, please contact me at 312- 385-8339. Thank you for your assistance with this matter. Sincerely, 1f1t: Associate Enclosure Chase Tower, 10 South Dearborn Street, S1Iite 1400 . Cbialgo, Illinois 60603 Item # 3 Attachment number 1 Page 2 of 20 ~ LWI -. SECURITY CAPITAL RESEARCH & MANAGEMENT INCORPORATED INVESTMENT MANAGEMENT AGREEMENT This Investment Management Agreement ("Agreement") dated as of Feb. 19,2008 is entered into by and between Security Capital Research & Management Incorporated ("Investment Advisor") and City of Clearwater, Florida (the "Client") and sets forth the terms on which Investment Advisor will act as investment manager of the assets of City of Clearwater Employees Pension P14t1o.e "Plan") placed with Investment Advisor for management hereunder (the "Account"). I. Appointment ofInvestment Advisor. Client hereby appoints Investment Advisor as investment manager with respect to the Account with full investment authority, subject to the Investment Guidelines (as defined and described in Section 3 below), and Investment Advisor accepts such appointment and agrees to open and maintain the Account as Client's agent and investment manager. 2. Composition of Account: Custodv. (a) The Account shall consist of such cash and securities as shall be agreed upon by Client and Investment Advisor that Client from time to time places under the supervision of Investment Advisor and/or which shall become part ofthe Account as a result of transactions therein or otherwise. (b) Client has appointed Northp-rn Trl{tjl@"Custodian")to be the custodian of the cash, securities and other property in the Account and Investment Advisor will execute all investment transactions for settlement with the Custodian under custodial account number Client will provide Investment Advisor with at least five (5) business days' notice of any contributions to or withdrawals from the Account as they may occur from time to time. Client shall direct the Custodian to comply with all investment instructions given by Investment Advisor with respect to the Account. Client shall provide Investment Advisor with reasonable advance notice of any subsequent changes in the Custodian. (c) Client agrees that: (i) unless Client gives written instructions to the contrary all dividend and interest income received in respect ofthe Account will be retained by the Custodian for reinvestment as part ofthe Account, and (ii) Client shall have full responsibility for the payment of all taxes due on capital or income held or collected for the Account and the filing of any returns in connection therewith or otherwise required by law. 3. Investment Guidelines. Client is responsible for informing Investment Advisor, in advance and in writing, of the investment policies, guidelines, objectives, restrictions, conditions, limitations or directions applicable to, as well as any cash needs of, the Account (the "Investment Guidelines"), and Investment Advisor shall invest, reinvest and manage the securities, cash and any other property in the Account subject to such Investment Guidelines as in effect from time to time. The initial Investment Guidelines are attached hereto as Exhibit A and made a part hereof. Client 1 Item # 3 .~..._-"~ -- Attachment number 1 Page 3 of 20 may amend the Investment Guidelines upon written notice to Investment Advisor; provided such amendment becomes effective only upon Investment Advisor's written acknowledgment of its receipt of such amendment, and Investment Advisor shall be provided a reasonable time to comply with such amendment. 4. Discretionary Authority. (a) Client requests Investment Advisor to review the assets held in the Account, and, subject to and in accordance with the Investment Guidelines, Investment Advisor shall have complete discretion and authority, without obtaining Client's instructions, to make such sales, exchanges, investments or reinvestments or to take any action that it deems necessary or desirable in connection with the assets in the Account, and in connection therewith to execute or cause to be executed any and all required documents. In exercising its investment discretion Investment Advisor is not limited to investing in securities and other property ofthe type normally deemed appropriate for trust funds. (b) Client authorizes Investment Advisor, in its discretion, to aggregate purchases and sales of securities for the Account with purchases and sales of securities of the same issuer for other clients ofInvestment Advisor occurring on the same day. When transactions are so aggregated, the actual prices applicable to the aggregated transaction will be averaged, and the Account and the accounts of other participating clients of Investment Advisor will be deemed to have purchased or sold their proportionate share ofthe securities involved at the average price so obtained. (c) Subject to the Investment Guidelines, investments may be made in, but are not limited to, securities of any kind including common or preferred stocks, warrants, rights, corporate or government bonds or notes, repurchase agreements, securities of any open-end or closed-end management type investment company or investment trust registered under the Investment Company Act of 1940, limited liability legal entities and non-registered pooled funds. The fact that any bank or non-bank subsidiary of IPMorgan Chase & Co. is selling or providing services to and receiving remuneration from the foregoing repurchase agreement, investment company, investment trust or other investment product as counterparty, investment advisor, custodian, transfer agent, registrar, or otherwise shall not preclude Investment Advisor from investing the Account in the security. 5. Brokerage and Execution Services. In accordance with the terms of Exhibit B attached hereto and made a part hereof, the Client acknowledges that Investment Advisor will effect securities and other investment transactions through brokers of its choosing. To the extent that any market counterparty with whom the Investment Adviser deals requires information relating to the Account (including, but not limited to, the identity ofthe Client and market value ofthe Account), the Investment Adviser shall be permitted to disclose such information to the extent necessary to effect transactions on behalf of the Client in accordance with the terms of this Agreement. 6. Proxies and Legal Proceedings. (a) Investment Advisor shall vote all proxies with respect to securities held in the Account in accordance with Investment Advisor's proxy voting guidelines and procedures in effect from time to time. Client agrees to instruct Custodian to forward all proxy materials and related shareholder communications to the designee provided by Investment Advisor promptly upon receipt. Investment Advisor shall not be liable with regard to voting of proxies or other corporate actions if the proxy materials and related communications are not received in a timely manner. 2 Item # 3 Attachment number 1 Page 4 of 20 (b) Client acknowledges and agrees that (i) the Custodian is responsible for advising or taking action, including filing proof of claim forms, on behalf of Client in any legal proceedings, including bankruptcies or class actions, involving securities held in or formerly held in the Account or the issuers of those securities and (ii) Investment Advisor will not be required to advise or take any action on behalf of Client in any such legal proceedings. 7. Information and Statements. (a) Investment Advisor shall cause to be rendered to Client, no less frequently than quarterly, statements setting forth the property in the Account and transactions therein and advices of changes as they are made in the Account in accordance with Investment Advisor's normal procedures. Client agrees to review promptly all statements and advices. Client acknowledges that Custodian will furnish the official confirmations of Account transactions and periodic Account statements detailing positions and activity. (b) Except with respect to any act or transaction ofInvestment Advisor as to which Client shall object in writing to Investment Advisor within a period of ninety (90) days from the date of receipt of any statement from Investment Advisor, Investment Advisor and all of its employees, representatives, directors, officers, shareholders, fiduciaries, employee benefit plans, or any affiliate thereof(collectively, the "JPMC Entities and Persons") shall upon the expiration of such period be released and discharged from any liability or accountability to Client and any of its agents or representatives as respects the propriety of acts, omissions, and transactions to the extent shown in such statement. 8. Delegation to Third Parties. Investment Advisor may employ an affiliate or a third party to perform any accounting, administrative, reporting and ancillary services required to enable Investment Advisor to perform its functions under this Agreement. Notwithstanding any other provision of the Agreement, Investment Advisor may provide information about Client and the Account to any such affiliate or other third party for the purpose of providing the services contemplated under this clause. Investment Advisor will act in good faith in the selection, use and monitoring of affiliates and other third parties, and any delegation or appointment hereunder shall not relieve Investment Advisor of any of its obligations under this Agreement. 9. Publicitv. Client grants Investment Advisor the right to: (a) use the name, trademark, logo or other identifying marks of Client in any sales, marketing or publicity activities or materials, including lists of representative clients, and (b) identify the investment style(s) managed by Investment Advisor for Client's Account in such publicity activities. 10. Fees and Expenses. For all services provided hereunder, Client shall pay Investment Advisor the fees set forth in Exhibit C attached hereto. Such fees may be changed by written agreement of the parties hereto. It is understood that, in the event such fees are to be paid by the Custodian, Client will provide written authorization to the Custodian to pay Investment Advisor's fees directly from the Account. If Investment Advisor sends Client an invoice, then Client agrees that the fees are due no later than 30 days following receipt ofthe invoice. In addition, it is agreed that all brokerage commissions, taxes, charges and other costs incident to the purchase and sale of securities shall be charged to and paid from the Account. Client shall also be responsible for, and shall reimburse Investment Advisor with respect to, any out-of-pocket expenses (including attorneys 3 Item # 3 Attachment number 1 Page 5 of 20 fees) incurred by any of the JPMC Entities and Persons with respect to any litigation or required responses to third parties arising out ofInvestment Advisor's management of the Account, except to the extent it is judicially determined that Investment Advisor acted with gross negligence or willful misconduct. II. Service to Other Clients. It is understood that Investment Advisor and its affiliates perform investment advisory services for various clients. Client agrees that Investment Advisor may give advice and take action with respect to any of its other clients, which may differ from advice given or the timing or nature of action taken with respect to the Account. It is Investment Advisor's policy, to the extent practicable, to allocate investment opportunities among clients over a period of time on a fair and equitable basis. It is understood that Investment Advisor shall not have any obligations to purchase or sell, or to recommend for purchase or sale, for the Account any security which Investment Advisor, its principals, affiliates or employees may purchase or sell for its or their own accounts or for the account of any other client, if in the opinion of Investment Advisor such transaction or investment appears unsuitable, impractical or undesirable for the Account. Client acknowledges that Investment Advisor may make different investment decisions with respect to each of its clients, and that such fact shall not be relied upon by Client or any of its agents or representatives as evidence ofa breach of Investment Advisor's duties hereunder. 12. Insider Information. If, by reason of its investment management activities, Investment Advisor obtains material non-public information, Client acknowledges that Investment Advisor will not make any investment decisions based upon such information. 13. Notices. (a) With regard to any contributions to, or withdrawals from the Account, notice shall be communicated to Investment Advisor both telephonically and via facsimile to the following individuals: Telephone: Attention: Facsimile: Attention: (312) 385-8300 Mr. Robert W. Culver (or current relationship manager) (312) 385-8326 Mr. Robert W. Culver (or current relationship manager) Mr. Anthony R. Manno Jr. Mr. Michael J. Heller (b) All other notices and written communications specified herein shall be deemed duly given if delivered personally, if mailed (by registered or certified mail, return receipt requested and postage prepaid), if sent by overnight courier service for next business day delivery, by facsimile transmission, or by electronic transmittal with return receipt, to the appropriate address for each party as set forth below. Such communications shall be effective immediately (if delivered in person or by confirmed facsimile), upon the date acknowledged to have been received in return receipt, or upon the next business day (if sent by overnight courier service). Notices shall be sent to Investment Advisor at the following address: 4 Item # 3 Address: Facsimile: Attention: Attachment number 1 Page 6 of 20 Security Capital Research & Management Incorporated 10 South Dearborn Street, Suite 1400 Chicago, Illinois 60603 (312) 385-8326 Mr. Robert W. Culver, Mr. Anthony R. Manno Jr., Mr. Michael J. Heller A copy of all legal notices shall also be delivered to Investment Advisor at the following address: Address: Facsimile: Attention: Security Capital Research & Management Incorporated 1111 Polaris Parkway, Suite 4P, Mail Code OHI-0152 Columbus, Ohio 43240 (614) 248-4189 JPMorgan Chase Legal Department Notices shall be sent to Custodian at the following address: Northern Trust Address: 50 South Lasalle B-8 Chicago, IL 60603 Facsimile: Attention: Mike Peska Notices shall be sent to Client at the following address: Address: Facsimile: Attention: P.O. Box 4748 Clearwater. FL 33758-4748 (727)562-4535 Margie Simmons 5 Item # 3 Attachment number 1 Page 7 of 20 14. Discharge ofLiabilitv. (a) Investment Advisor does not guarantee the future performance ofthe Account or any specific level of performance, the success of any investment decision or strategy that Investment Advisor may use, or the success oflnvestment Advisor's overall management ofthe Account. Client understands that investment decisions made for the Account by Investment Advisor are subject to various market, currency, economic, political and business risks, and that those investment decisions will not always be profitable. Investment Advisor will manage only the securities, cash and other investments held in the Account and in making investment decisions for the Account, Investment Advisor will not consider any other securities, cash or other investments owned or managed by Client. (b) The JPMC Entities and Persons shall have no liability for any expenses, losses, damages, liabilities, charges and claims of any kind or nature whatsoever ("Losses") incurred by or threatened against Investment Advisor as the result of any actions it takes based on instructions it receives from authorized persons ("Authorized Persons") ofthe Client and reasonably believed by the JPMC Entities and Persons to be genuine. A list of such Authorized Persons is listed on Exhibit D. The JPMC Entities and Persons shall not be liable to the Plan, the Client or their representatives for any Losses suffered by Client arising from any depreciation in the value ofthe Account or from the income derived from it (including, without limitation, where such depreciation results from capital loss or taxation liability) or other Losses that result from Investment Advisor's actions hereunder, except to the extent such Losses are judicially determined to be proximately caused by the negligence or misconduct of Investment Advisor. Under no circumstances shall the JPMC Entities and Persons be liable for any special consequential, or indirect damages. The JPMC Entities and Persons shall have no responsibility and shall have no liability on account of (a) the selection of the Investment Guidelines, including that the Investment Guidelines are consistent with applicable state law, (b) the management of any assets of the Plan outside of the Account, and (c) the administration of the Plan. ill Notwithstanding the foregoing, no provision of this Agreement shall constitute a waiver or limitation of any right of Client or the Plan that may exist under Federal or state securities law. 15. Force Maieure. (a) Neither party to this Agreement shall be liable for damages resulting from delayed or defective performance when such delays arise out of causes beyond the control and without the fault or negligence of the offending party. Such causes may include, but are not restricted to, Acts of God or of the public enemy, terrorism, acts of the State in its sovereign capacity, fires, floods, earthquakes, power failure, disabling strikes, epidemics, quarantine restrictions, and freight embargoes. 6 Item # 3 Attachment number 1 Page 8 of 20 (b) If at any time due to major fluctuations in market prices, abnormal market conditions or any other reason outside the control ofInvestment Advisor, there shall be a deviation from the specific instructions set out in the Investment Guidelines: (i) Investment Advisor shall not be in breach of the Investment Guidelines provided it takes such steps as may be necessary to ensure compliance within 14 days after such deviation occurs; and (ii) If, in the judgment of Investment Advisor, the actions described in (i) above are not in the best interests of Client, Investment Advisor may, prior to the expiration of the 14 day period referred to in (i) above, make a written recommendation to Client on the most appropriate way to deal with the deviation which shall toll the deadline in (i) above. Unless Client directs Investment Advisor to the contrary within 14 days ofthe receipt by Client of the recommendation, Investment Advisor shall be entitled to implement its recommendation and shall not be in breach ofthe Investment Guidelines. Investment Advisor does not provide any express or implied warranty as to the performance or profitability of the Account or any part thereof or that any specific investment objectives will be successfully met. 16. Client Representations. Client represents and warrants to Investment Advisor that: (i) Client has full power and authority to appoint Investment Advisor to deal with the Account in accordance with the terms ofthis Agreement, this Agreement is valid and has been duly authorized, does not violate any obligation by which Client is bound, and when so executed and delivered, will be binding upon Client in accordance with its terms subject to applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally and general principles of equity (and Client agrees to provide Investment Advisor with evidence of such authority as may be reasonably requested by Investment Advisor); (ii) Client is not an investment company as defined by the "Investment Company Act of 1940" and registration of the Account under such Act is not required; (iii) a copy of the statutes and other governing documents ofthe Plans (the "Governing Documents") as amended to date have been provided to Investment Advisor and Client will provide Investment Advisor with copies of all future amendments to the Governing Documents promptly after their adoption; (iv) Client has executed and delivered to Investment Advisor a Qualified Institutional Buyer Certification (Annex A), and Client will immediately advise Investment Advisor in writing of any change in status affecting such documents; (v) Client acknowledges that it has received from Investment Advisor a copy of Part II ofInvestment Advisor's Form ADV more than forty-eight (48) hours prior to entering into this Agreement; (vi) Client shall furnish to Investment Advisor certified copies of appointments or designations setting forth the names, titles and authorities of the individuals who are authorized to act on behalf of Client with respect to the Account and this Agreement, and Investment Advisor shall be entitled to rely upon such information until it receives written notice of a change in such appointments or designations; (vii) Client has authority under the Governing Documents to enter into this Agreement and to appoint Investment Advisor as investment manager with authority to manage (including the power to acquire and dispose of) the assets ofthe Account upon the terms and conditions set forth in this Agreement; (viii) all property deposited in the Account is that ofthe Plan and that no restrictions on disposition exist as to any such property; and (ix) at all times that Investment Advisor is acting as investment manager hereunder, Client represents and covenants that the Plan is a "governmental plan" as defined in section 414( d) of the Code and Client will promptly notify Investment Advisor if of any change to the Plan's status as a governmental plan. 7 Item # 3 Attachment number 1 Page 9 of 20 17. Investment Advisor Representations. Investment Advisor represents and warrants to Client that: (i) this Agreement is valid and has been duly authorized, does not violate any obligation by which Investment Advisor is bound, and when so executed and delivered, will be binding upon Investment Advisor in accordance with its terms subject to applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally and general principles of equity; and (ii) it is and at all times during the term of this Agreement will be registered as an investment adviser under the Investment Adviser's Act of 1940 and it shall promptly notify Client in writing of the revocation, restriction or suspension of such registration or of Investment Advisor's failure to maintain such registration or of any material failure to comply with any applicable provision ofthe Advisers Act with respect to the Account; (iii) it is a "fiduciary" for the Plan with respect to the Plan's assets comprising the Account, and shall carry out its investment management responsibilities in accordance with the fiduciary standards set forth in Florida Statutes, Sections 112.656(1) and 112.661(4) of the Florida Protection of Public Employee Retirement Benefits Act. Investment Advisor acknowledges that it is familiar with the laws of the State of Florida governing public employee retirement systems (Chapter 112, Part VII), and is familiar with the provisions of the Code ofthe City of Clearwater that Client has provided to it relating specifically to the management ofthis Pension Plan. Investment Advisor agrees to observe the laws of the State of Florida and the Code of the City of Clearwater and the investment policy and Investment Guidelines as set forth by Client in Exhibit A hereto. 18. Applicable Law. All questions arising hereunder shall be determined according to the laws of the State of Florida (without regard to its conflict oflaws provisions) and the provisions hereof shall be binding upon the successors and assigns of the parties. The Investment Advisor hereby submits to jurisdiction of the federal courts in the Middle District of Florida, and to the applicable state courts of Florida in the event federal diversity jurisdiction requirements are not met, with respect to any litigation relating to this Agreement. The parties hereby waive trial by jury in any judicial proceeding involving any dispute, controversy or claim arising out of or relating to this Agreement. Client hereby irrevocably waives any immunity to which it might otherwise be entitled in any arbitration, action at law, suit in equity or any other proceedings arising out of or based on this Agreement or any transaction in connection herewith. 19. Assignment. This Agreement may not be assigned, as defined in the Investment Advisers Act of 1940, as amended, and the rules thereunder without the written consent of the other party . 20. Termination and Survival. This Agreement may be terminated with respect to all or a portion of the cash, securities or other property constituting the Account by either party as to its responsibilities hereunder at any time by giving to the other party written notice at least thirty (30) days prior to the date on which such termination is to become effective. Termination of this Agreement shall be without prejudice to the completion of any commitments to purchase or dispose of any securities or other property made by Investment Advisor prior to giving or receipt of notice to terminate this Agreement. The provisions relating to the following rights and obligations of the parties shall survive the termination, cancellation, expiration and/or rescission ofthis Agreement: Discharge of Liability, Applicable Law, and Termination and Survival. 8 Item # 3 Attachment number 1 Page 10 of 20 21. Counterparts: Severability. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. In the event that one or more provisions of this Agreement shall be held by any court to be invalid, void or unenforceable, the remaining provisions shall nevertheless remain and continue in full force and effect. 22. Amendment. This Agreement may be amended by mutual consent of the parties. Except as provided herein, no alteration or variation ofthe terms ofthis Agreement shall be valid unless made in writing and signed by the parties hereto. 23. Customer Identification Program. To help the government fight the funding of terrorism and money laundering activities, Investment Advisor has adopted a Customer Identification Program, ("CIP") pursuant to which Investment Advisor is required to obtain, verify and maintain records of certain information relating to its clients. In order to facilitate Investment Advisor's compliance with its CIP, Client hereby represents and warrants that (i) Client's taxpayer identification number or other government issued identification number is5 9 6 0 0 0 289 , (ii) all documents provided to Investment Advisor are true and accurate as of the date hereof, and (iii) Client agrees to provide to Investment Advisor such other information and documents that Investment Advisor requests in order to comply with Investment Advisor's CIP. 24. Investigations and Complaints. To the extent permitted by applicable law, Investment Advisor shall promptly disclose to Client in writing any extraordinary investigation, examination, complaint, disciplinary action or other proceeding materially affecting Investment Advisor's ability to perform its duties under this Agreement or involving any investment professional employed by Investment Advisor who has performed substantial service with respect to the Account in the twenty-four (24) preceding months, which is commenced by any regulatory body having proper jurisdiction over Investment Advisor. Except as otherwise required by law, Client shall maintain the confidentiality of all such information (including refraining from trading in any security based on such information) until the investigating entity makes the information public. 25. Insurance. Investment Advisor presently has in effect, and will maintain during the term of this Agreement, fiduciary liability insurance in an amount at least equal to the greater of $10,000,000 or the maximum currently provided by Investment Advisor to any other client, which provides coverage with respect to any loss resulting from a breach of its fiduciary duties and including coverage in the event of recourse against it by, or on behalf of, its clients. Investment Advisor, at the time of execution ofthis agreement and annually thereafter upon written request of Client, shall deliver to Client certificates of insurance evidencing the foregoing coverages. Investment Advisor shall name Client as a certificate holder on the aforesaid professional liability insurance policy and furnish Client evidence of such designation of Client as a certificate holder. Investment Advisor's insurance shall be primary and Client's insurance, if any, shall be secondary. 9 Item # 3 Attachment number 1 Page 11 of 20 IN WITNESS WHEREOF, this Agreement has been signed on behalf of the parties on the day and year first above written. Client: BOARD OF TRUSTEES OF THE EMPLOYEES' PENSION PLAN OF THE CITY OF CLEARWATER. FL Cynthia E. Goudeau City Clerk search & Management Incorporated B 10 Item # 3 Attachment number 1 Page 12 of 20 EXHIBIT A ....... I lilil =:=='11I SECURITY CAPITAL RESEARCH & MANAGEMENT INCORPORATED GROWTH & INCOME INVESTMENT OBJECTIVES & GUIDELINES Performance Benchmark The performance benchmark for the Account shall be the Dow Jones Wilshire Real Estate Securities Index ("W ARESI"). The W ARESI is a market capitalization-weighted index comprised of publicly traded real estate investment trusts ("REITs") and real estate operating companies and does not include any special purpose or health care REITs. Investment Guidelines I. Account assets may be invested in all REITs and other real estate companies focused on owning, operating and/or developing real estate in the U.S. and other primary North American markets. 2. At any given time, at least 85% of Account assets will be invested in equity securities of real estate companies. Such equity securities include (i) common stocks, and (ii) preferred stocks. For purposes of investment policies, a "real estate company" is one that derives at least 50% of its revenues from ownership, construction, financing management or sale of commercial, industrial, or residential real estate or that has at least 50% ofits assets invested in such real estate. 3. Investment diversification will be achieved through generally holding a minimum of 20 investments. If holdings fall below 20 as of the end of any month the client will be contacted. 4. No more than 10% of assets generally will be held in the securities of any single issuer. If holdings of a single issuer exceed 10% as of the end of any month the client will be contacted. 5. No assets will be invested in securities that constitute illiquid securities at the time of purchase. For this purpose, illiquid securities include, among others, securities that are illiquid by virtue of the absence of a readily available market of the existence of legal or contractual restrictions of resale. 11 Item # 3 Attachment number 1 Page 13 of 20 6. In general, the Account will not have more than two times the weighting by property type versus the W ARESI. 7. Account assets will not be used to purchase or sell real estate, though assets will be invested in securities issued by companies in the real estate industry and will, as a matter of fundamental policy, concentrate investments in such securities. Acknowledged and Agreed to: Client: BOARD OF TRUSTEES OF THE EMPLOYEES' PENSION PLAN OF THE CITY OF CLEARWATER. FL By: Title: Frank V. Hibbard, Chairperson Date: Cynthia E. Goudeau City Clerk 12 Item # 3 Attachment number 1 Page 14 of 20 EXHIBIT B Brokerae:e and Execution Services (a) Investment Advisor will use the execution services of such broker-dealers as it may select from time to time, which will be entitled to compensation for their services, to effect transactions for the purchase and/or sale of securities and other investments by the Account. In connection with transactions effected for the Account, Client authorizes Investment Advisor to establish and trade in accounts in its or the name of the Account with members of national or regional securities exchanges and the National Association of Securities Dealers Inc., including "omnibus" accounts established for the purpose of combining orders for more than one client. (b) To the extent permitted by applicable law, Client hereby authorizes Investment Advisor to effect transactions for the Account through affiliated broker-dealers ("Affiliated Broker- Dealers") and the Affiliated Broker-Dealers may retain commissions in connection with effecting such agency transactions for the Account. Client understands that other broker-dealers may be willing to effect transactions for Client at lower commission rates than those charged by Affiliated Broker-Dealers. When executing trades through Affiliated Broker-Dealers, Investment Advisor shall seek to obtain the most favorable terms for Client transactions that are reasonably available under the circumstances. If Client's Account is subject to Section 1 I (a) ofthe Securities Exchange Act of 1934, as amended ("Exchange Act") and Rule lla2-2(T) thereunder, Client authorizes the Affiliated Broker-Dealers that may be members of a U.S. securities exchange, or have the right to trade on such an exchange, to execute transactions on such exchange for the Account. (c) In selecting brokers through which transactions for client accounts will be executed, Investment Advisor's primary consideration will be the broker's ability to provide best execution of trades. In making a decision about best execution (and subject to section 28(e) of the Exchange Act), Investment Advisor may consider a number of factors including, but not limited to, trade price and commission and quality of research services the broker may provide. The commission rates paid to any broker for execution of transactions will be determined through negotiations with the broker, taking into account industry norms for the size and type oftransaction, and the nature of brokerage and research services provided. Such research services may include, but not be limited to, analysis and reports concerning economic factors and trends, industries, specific securities, and portfolio strategies. Research services furnished by brokers will generally be used in connection with all Investment Advisor's advisory accounts, although not all such services may be used with any particular account that paid commissions to the brokers providing such services. (d) To the extent permitted by applicable law, Investment Advisor is also hereby authorized to effect "agency cross transactions" (as defined in Rule 206(3)-2 promulgated by the Securities and Exchange Commission under the Investment Advisers Act of 1940, as amended) with its Affiliated Broker-Dealers whereby they will act as agent for, and receive commissions from, the Account and the party on the other side of the transaction. Client understands that in addition to receiving commissions from both parties, the Affiliated Broker-Dealers may have a potentially conflicting division of loyalties and responsibilities to both parties to the transaction. Client's consent to execute "agency-cross transactions" may be revoked at any time by written notice from Client to Investment Advisor. 13 Item # 3 Attachment number 1 Page 15 of 20 EXHffiIT C Fee Ae:reement Account Name: City of Clearwater Employees I Pension Plan Account #: 1. This Schedule C may be amended from time to time by SC-R&M upon 30 days' written notice to the Client. 2. Fee Schedule The Client shall payor cause to be paid to SC-R&M as remuneration for its services under this Agreement an annual investment management fee equal to 0.65% per annum on all assets under management (the "Base Fee"). In addition, the Client will be responsible for all fees and charges as described in Section 10 of the Agreement. The Base Fee will be billed in arrears for each calendar quarter and, except as provided in Paragraph 3 below, payable within 10 days of receipt of a statement that sets forth the amount of the Base Fee. The Base Fee will be computed using the average month-end values for the three month-ends during a quarter and the month-end ofthe prior quarter (e.g. in computing the average for the second quarter the month-end values for March 31, April 30, May 31 and June 30 will be added together and divided by four). The Base Fee will be adjusted by the amount of new material (as defined below) contributions or withdrawals occurring during the quarter and by the number of calendar days in the quarter that such assets were not under management (in the case oftermination of the Agreement). For purposes of this Agreement, "material" shall mean any contribution or withdrawal in excess of3% of the Account value at the time it is made. In addition to the Base Fee, SC-R&M will earn a performance based fee (the "Performance Fee") ifthe rate of return for the Account in any calendar year (or partial calendar year in the case of the year the Agreement is executed or the year in which the Agreement is terminated) exceeds the Wilshire Real Estate Securities Index ("W ARESI") over the same period, net of the Base Fee (the "W ARESI Out Performance") 1. The Performance Fee will be measured from the date the Account is deemed fully invested by SC-R&M, which date will be provided to the Client in writing. The Performance Fee will be equal to 5% multiplied by the W ARESI Out Performance for the period in question (e.g., if W ARESI Out Performance is 2.00% for the period in question, SC- R&M would be entitled to a Performance Fee of 0.10%.). As an example, ifthe Account's average value for the year was $60,000,000 and it out performed the W ARESI by 2.00%, SC- R&M would be entitled to a Performance Fee equal to $60,000. I For any partial calendar year (the year in which the Agreement is executed or terminated) the Performance Fee will be reduced pro rata 14 Item # 3 Attachment number 1 Page 16 of 20 The Performance Fee will be billed after the end of the calendar year (or the relevant period during the year in which the Account is terminated) and will be payable within 10 days of receipt ofa statement which sets forth the amount of the Performance Fee. 3. The followine provision shall applv ifand to the extent required bv applicable law. If the fair value of any security or other asset in the Account at the time of calculation of any Performance Fee or Base Fee is based only on a good faith determination of value by SC-R&M, the value of such security or asset will be deemed to be zero solely for the purpose of calculating the Performance Fee or Base Fee. LClient acknowledges that: · Unrealized appreciation on securities held in a portfolio, as well as realized gains, may increase the investment manager's compensation. · The index to be used as a performance benchmark is appropriate since it represents the normal portfolio an investment manager might hold in the absence of any active management decisions and the index is widely recognized and is generally used to measure security price appreciation and depreciation for the asset class. · The performance-based fee arrangement may create an incentive for the investment manager to make investments that are riskier or more speculative than would be the case in the absence of a performance-based fee. Aereed to and accepted: Client: BOARD OF TRUSTEES OF THE EMPLOYEES' PENSION PLAN OF THE CITY OF CLEARWATER. FL By: Title: Frank V. Hibbard, Chairperson Date: By: Title: Cynthia E. Goudeau Pen ion ttomey City Clerk C i I Re earch & Management Incorporated & 15 Item # 3 Attachment number 1 Page 17 of 20 EXHIBIT D Authorized Sienature List Margaret L. Simmons, Finance Director ~~QJ 0<. J-1/Vl<1~ Brian J. Ravins, Finance Asst. Director A~cf X~ Steve Moskun, Cash & Investment Manager ~~~ 16 Item # 3 Atta Pag ANNEX A Qualified Institutional Buyer Certification To: Security Capital Research & Management Incorporated (the "Agent") Dear Ladies and Gentlemen: The undersigned has retained Agent to manage the assets in the undersigned's account (the "Account") pursuant to an agreement with the Agent (the "Agreement"). Pursuant to the Agreement, the Agent is authorized to invest the Account in restricted securities under Rule 144A ofthe Securities Act of 1933 ("Rule 144A") that are issued by various issuers (the "Issuers") and purchased from various Broker-Dealers (the "Brokers"). In order to establish that it is a "Qualified Institutional Buyer" under Rule 144A, the undersigned hereby makes the certifications set forth below to the Agent, the Issuers, and the Brokers. The undersigned acknowledges that the Agent, the Issuers, and the Brokers will rely on this certification for purposes of Rule 144A. The Agent is hereby authorized to certify to the Issuers and Brokers from time to time that the undersigned is a Qualified Institutional Buyer within the meaning of Rule 144A. Such Issuers and Brokers may rely on a certification from the Agent as to the undersigned's status as a Qualified Institutional Buyer as if such certification were delivered directly from the undersigned. The undersigned agrees to notify the Agent of any change in the certifications set forth below. This certification shall be deemed to be a continuing certification until such time as Agent is notified in writing that the undersigned is no longer a Qualified Institutional Buyer for purposes of Rule 144A. The undersigned hereby certifies that it is familiar with the requirements of Rule 144A and further certifies, represents and warrants that: I. The undersigned is a "Qualified Institutional Buyer" as described in Attachment A hereto. 2. As of *, the undersigned owned and invested on a discretionary basis an aggregate of$ ** of eligible securities as defined and calculated as set forth in Attachment A. 3. Fiscal year end: 4. The undersigned is acting for its own account or the accounts of other Qualified Institutional Buyers. 5. The person signing this certification is the chief financial officer, a person fulfilling an equivalent function, or other executive officer ofthe undersigned duly authorized to execute this certification. If the undersigned is a "family of investment companies" as defined in Rule 144A, the person executing this certification is an executive officer ofthe investment adviser. Company: By: Printed Name: Title: Date: * Insert a specific date on or since the end of the undersigned's most recent fiscal year. ** The amount can be an approximation but must be a specific amount in excess of$100 million or such lesser amount applicable to the entity as contemplated by Attachment A. The aggregate investable amount should include all eligible securities, not just those managed by agent. 17 Item # 3 Attachment number 1 Page 19 of 20 Attachment A Definition of "QUALIFIED INSTITUTIONAL BUYER" Any of the following entities, acting for its own account or the account of other Qualified Institutional Buyers, that in the aggregate owns and invests on a discretionary basis at least $100 million in securities: A company organized as an insurance company, whose primary and predominant business activity is the writing of insurance or the reinsuring of risk underwritten by insurance companies, and which is subject to supervision by the insurance commissioner, or similar official or agency, of a state or territory or the District of Columbia; or any receiver or similar official or any liquidating agent for an insurance company, in his capacity as such. An investment company registered under the Investment Company Act of 1940. A business development company as defined in Section 2(a)(48) of the Investment Company Act of 1940. A small business investment company licensed by the U.S. Small Business Administration under Section 301(c) or (d) of the Small Business Investment Act of 1958. A plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state or its political subdivisions, for the benefit of its employees. An employee benefit plan within the meaning of Title I ofthe Employment Retirement Income Security Act of 1974 ("ERISA"). A trust fund whose trustee is a bank or trust company and whose participants are exclusively (i) plans established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state or its political subdivisions, for the benefit of its employees, or (ii) employee benefit plans within the meaning of Title I of the ERISA, except trust funds that include as participants individual retirement accounts or H.R. 10 plans. A business development company as defined in Section 202(a)(22) of the Investment Advisers Act of 1940. An organization described in Section 501(c)(3) ofthe Internal Revenue Code. A corporation (other than a bank as defined in Section 3(a)(2) ofthe Securities Act of 1933 or a savings and loan association or other institution referenced in Section 3(a)(5)(A) ofthe Securities Act of 1933 or a foreign bank or savings and loan association or equivalent institution). A partnership. A Massachusetts or similar business trust. An investment adviser registered under the Investment Advisers Act of 1940. A bank as defined in Section 3( a)(2) ofthe Securities Act of 1933 that has an audited net worth of at least $25 million as demonstrated in its latest annual financial statements, as of a date not more than 16 months preceding the date of sale under the rule. 18 Item # 3 Attachment number 1 Page 20 of 20 A savings and loan association or other institution as referenced in Section 3(a)(5)(A) ofthe Securities Act of 1933 that has an audited net worth of at least $25 million as demonstrated in its latest annual financial statements, as of a date not more than 16 months preceding the date of sale under the rule. A foreign bank or savings and loan association or equivalent institution that has an audited net worth of at least $25 million as demonstrated in its latest annual financial statements, as of a date not more than 18 months preceding such date of sale for a foreign bank or savings and loan association or equivalent institution. A dealer registered pursuant to Section 15 of the Securities Exchange Act of 1934, as amended ("Exchange Act"), that in the aggregate owns and invests on a discretionary basis at least $10 million in securities. A dealer registered pursuant to Section 15 of the Exchange Act, acting in a riskless principal transaction on behalf of a Qualified Institutional Buyer. An investment company registered under the Investment Company Act of 1940 that is part of a family of investment companies (as defined in Rule 144A(a)(I)(iv)) which own in the aggregate at least $100 million in securities. An entity, all of the equity owners of which are Qualified Institutional Buyers. Calculation of the Aggregate Amount of Securities owned and invested on a discretionary basis Exclusions. In determining the aggregate amount of eligible "securities" owned and invested on a discretionary basis, the following instruments and interests shall be excluded: securities issued by affiliates of the entity, bank deposit notes and certificates of deposits, loan participations; repurchase agreements; securities owned but subject to a repurchase agreement; and currency, interest rate and commodity swaps. Valuation. The aggregate value of securities owned and invested on a discretionary basis by an entity shall be the cost of such securities, except that they may be valued at market if the entity reports its securities holdings in its financial statements on the basis of their market value, and no current information with respect to the cost ofthose securities has been published. Subsidiaries. Securities owned by subsidiaries of the entity that are consolidated with the entity in its financial statements prepared in accordance with generally accepted accounting principles may be included if the investments of such subsidiaries are managed under the direction of the entity, except that, unless the entity is a reporting company under section 13 or 15(d) ofthe Exchange Act, securities owned by such subsidiaries may not be included if the entity itself is a majority-owned subsidiary that would be included in the consolidated financial statements of another enterprise. 19 Item # 3 Meeting Date:2/19/2008 Pension Trustees Agenda Council Chambers - City Hall SUBJECT / RECOMMENDATION: Employees listed below be accepted into membership in the City of Clearwater's Employees' Pension Plan. SUMMARY: Name, Job. Class, & Dept./Div. Hire Date John Fischer, Maint. Wkr. II/General Ser. 11/13/07 Joi Limpkin O'Neal, Pol. Com. Oper. trn.IPolice 12/10/07 Michael Quinzi, Pks. Ser. Tech. IIIIPks. & Rec. 12/3/07 Miguel Tambucho, Rec.LeaderIPks. & Rec. 12/10/07 Christopher Britt, Pub. Util.s Tech. l/Public Utilities 12/10/07 Benjamin Futral, Cust. Ser. Rep./Customer Service 12/10/07 Wendy Heminover, Rec. Prog. IIIPks. & Rec. 12/8/07 Rayshawn Larry, Police Cadet/Police 12/10/07 David Huff, Police Com. Oper. TraineeIPolice 12/10/07 12/10/07 12/10/07 Michelle Mann, Pol. Com. Oper. TraineeIPolice 12/10/07 11/26/07 11/26/07 James Stanley, Bldg. Con. Insp./Dev.& Neigh. Ser. 12/10/07 Pension Elig. Date 11/13/07 12/1 0/07 12/3/07 12/1 0/07 12/1 0/07 12/1 0/07 12/8/07 12/10/07 12/10/07 Indira Witcombe, Pol. Com. Oper. TraineeIPolice 12/10/07 Patricia Schauer, Firefighter/Fire 12/10/07 Review Approval: 1) Office of Management and Budget 2) Legal 3) Clerk 4) Clerk Cover Memo Item # 4 Meeting Date:2/19/2008 Pension Trustees Agenda Council Chambers - City Hall SUBJECT / RECOMMENDATION: Ralph Basnight, Gas Department, be granted a regular pension under Section(s) 2.393 and 2.397 of the Employees' Pension Plan as approved by the Pension Advisory Committee. SUMMARY: Ralph Basnight, Gas Specialist, Gas Department, was employed by the City on April 28, 1980, and his pension service credit is effective on that date. His pension will be effective August 1,2008. Based on an average salary of approximately $48,888 per year over the past five years, the formula for computing regular pensions, and Mr. Basnight's selection of the Joint & Survivor Annuity, this pension will approximate $37,969 annually. This pension was approved by the Pension Advisory Committee on January 10, 2008. Section 2.393 provides for normal retirement eligibility when a participant has reached age 55 and completed twenty years of credited service, has completed thirty years of credited service, or has reached age 65 and completed ten years of credited service. Mr. Basnight qualifies under the age 55 and 20 years of service criteria. Review Approval: 1) Office of Management and Budget 2) Legal 3) Clerk 4) Clerk Cover Memo Item # 5 Meeting Date:2/19/2008 Pension Trustees Agenda Council Chambers - City Hall SUBJECT / RECOMMENDATION: Alan Uhr, Police Department, and Amy Courtney, Customer Service Department, be allowed to vest their pensions under Section(s) 2.397 and 2.398 of the Employees' Pension Plan as approved by the Pension Advisory Committee. SUMMARY: Alan Uhr, Police Communications Operator, Police Department, was employed by the City on November 20,1989, and began participating in the Pension Plan on that date. Mr. Uhr transferred from full-time to part-time on January 4,2008. Amy Courtney, Customer Service Representative, Customer Service Department, was employed by the City on November 24, 1986, and began participating in the Pension Plan on that date. Ms. Courtney terminated employment with the City of Clearwater on December 21,2007. The Employees' Pension Plan provides that should an employee cease to be an employee of the City of Clearwater or change status from full-time to part-time after completing ten or more years of creditable service (pension participation), such employee shall acquire a vested interest in the retirement benefits. Vested pension payments commence on the first of the month following the month in which the employee normally would have been eligible for retirement. Section 2.393 (p) provides for normal retirement eligibility when a participant has reached age 55 and completed twenty years of credited service, has completed 30 years of credited service, or has reached age 65 and completed ten years of credited service. Mr. Uhr would have completed at least 20 years of service and reached age 55 on November 20, 2009. His pension will be effective December 1, 2009. Ms. Courtney would have completed 30 years of service on November 24, 2016. Her pension will be effective December 1, 2016. These pensions were approved by the Pension Advisory Committee on January 10,2008. Review Approval: 1) Office of Management and Budget 2) Human Resources 3) Office of Management and Budget 4) Legal 5) Clerk 6) Clerk Cover Memo Item # 6