Loading...
EMPLOYEES PENSION PLAN INVESTMENT MANAGEMENT AGREEMENT INVESTMENT MANAGEMENT AGREEMENT Atlanta Capital Management Company, L.L.C. Two Midtown Plaza, Suite 1600 1349 West Peachtree Street Atlanta, Georgia 30309 Re: City of Clearwater Employees' Retirement Plan Gentlemen: The Board of Trustees (the "Trustees") of the above-referenced plan, duly authorized by the provisions of said Plan, hereby employs and appoints Atlanta Capital Management Company, L.L. C. ("Manager") as an investment manager [within the meaning of Section 3(38) of the Employee Retirement Income Security Act of 1974 ("ERISA")] for the account described below (the "Account") on the following terms and conditions. 1. Definition of Account and Custody of Account Assets. The Account shall consist of cash, securities and other assets of the Plan which are identified as Schedule B, plus any proceeds therefrom or additions thereto, and less any losses thereon or withdrawals therefrom. Manager shall not act as Custodian for the Account or any portion thereof. All transactions will be consummated by payment to, or delivery by, the Custodian of all cash, securities and other assets due to or from the Account. Manager may issue such instructions to the Custodian as may be appropriate in connection with the settlement of the transactions initiated by Manager pursuant to Paragraph 2 hereof. The Manager shall direct that all securities purchased for the Client shall be designated as an asset of Client and shall be registered in the name of Client with the Custodian or its nominee. 2. Authority. From the effective date referred to in Paragraph 18 hereof, Manager shall have and exercise the power and authority set forth in this Paragraph to manage and to direct the acquisition or disposition of assets in the Account, except for any such assets which the Trustees may from time to time designate as not being subject to the supervision ofthe Manager, subject only to the investment policy established from time to time by the Trustees and communicated in writing to the Manager. When it deems appropriate and without prior consultation with the Trustees, Manager as agent and attorney-in-fact with respect to the Account may (a) buy, sell, exchange, convert and otherwise trade in, retain, or reinvest in stocks, bonds, and other securities, (b) place orders for the execution of such securities transactions with or through such brokers or dealers as Manager may select, and may ( c) take such other action or non action that Manager reasonably and in good faith deems appropriate. Atlanta Capital Management Company, L.L.C. Page 2 The Manager further understands that a Commission Recapture Program or Soft Dollar Program may be adopted by the Trustees together with a list of recapture agents and the names of entities to be used in the Soft Dollar Program. Subject to its continuing duty to secure best execution on behalf ofthe Trustees, the Manager agrees to utilize the recapture agents or entities participating in the Soft Dollar Program in all transactions where it is reasonable to do so. 3. Services of Manager. By the execution of this Agreement, Manager accepts its appointment as an investment manager for the Plan and agrees to manage, and to direct the acquisition and disposition of, the Account investments in accordance with the Trustees' investment policy as communicated to Manager in writing from time to time. Manager shall provide periodic statements ofthe Account and such additional reports, including monthly reports, as may reasonably be requested. The Manager shall make itself available to answer questions raised by Client and/or to present the reports in person. All written quarterly reports shall outline the overall position of the portfolio with a complete listing of each security showing the cost, market value and yield at the close of the reporting period. The report shall also include all portfolio transactions during the preceding quarter. Quarterly reports shall also include a listing of those transactions in which the Commission Recapture Program was utilized and those in which it was not and an explanation therefore. All quarterly reports shall include a listing of all trades, broker utilized and the cost ofthe trade. The parties recognize that as a public entity, the Client is not governed by ERISA. Nevertheless, the Manager shall discharge its duties with respect to the Client with the care, skill, prudence, and diligence under the circumstances then prevailing which a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an activity of a like character and purpose. The Manager recognizes that all its actions in discharging its duties under this Agreement must solely be in the interest of the client and the Client's participants and beneficiaries above all others, and Client shall not enter into any agreement or take any action contrary to that responsibility. The Manager shall be governed in all of its activities by Chapter 112, Part VII, Florida Statutes, including, but not limited to, the Provisions applicable to providers of services to retirement plans in Section 112.656, Florida Statutes. It is further agreed that Manager, in the maintenance of its records, does not assume responsibility for the accuracy of information furnished by the Custodian or the Trustees. 4. Transaction Procedures. Instructions of Manager to the Custodian shall be made in writing sent by first class mail or, at the option of the Manager, shall be made orally and confirmed in writing as soon as practical thereafter; provided, that all such instructions, written or oral, shall be issued only by persons designated from time to time by Manager in a written instrument delivered to the Custodian. Alternatively, the Custodian is authorized to act in accordance with, and shall be entitled to rely on those deliver and/or receive instructions from the Eligible Trade Report through the DTC ID system that contain the client bank account number in the defined "custodian/client account number" field, to the same extent, as if the information contained in such instructions was given in written form, signed by the Manager. Manager shall instruct all brokers and dealers executing orders on behalf of the Account to forward to the Custodian copies of all confirmations promptly after execution of transactions. Manager shall not be responsible for any loss incurred by reason of any act or omission of any broker or dealer or the Custodian; provided, that Manager will make reasonable efforts to require that brokers and dealers selected by Manager perform their obligations with respect to the Account; and further provided, that the foregoing shall not operate as a limitation on or as an exception to the standard of care articulated in Paragraph 3 above. Atlanta Capital Management Company, L.L.C. Page 3 5. Reports to Manager. The Trustees will provide, or instruct the Custodian to provide, Manager with such periodic reports concerning the status of the Account as Manager may reasonably request. 6. Service to Other Clients. It is understood that Manager performs investment advisory services for various clients. The Trustees agree that Manager 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 so long as it is Manager's policy, to the extent practical, to allocate investment opportunities to the Account over a reasonable period of time on a fair and equitable basis relative to other clients. It is understood that Manager shall not have any obligations to purchase or sell for the Account any security which Manager, their principals, affiliates or employees may purchase or sell for its or their own account or for the account of any other client, if in Manager's good faith opinion such transaction or investment appears unsuitable, impractical or undesirable for the Account. 7. Allocation of Brokerage. Where Manager places orders for the execution of portfolio transactions for the Account, Manager may allocate such transactions to such brokers and dealers for execution on such markets, at such prices and at such commission rates as in the good faith judgment of Manager will be in the best interest of the Account. Manager may take into consideration in the selection of brokers and dealers not only the available prices and rates of brokerage, but also research services which are provided by such brokers or dealers and which are expected to enhance the general portfolio management capabilities of Manager, without Manager's having to demonstrate that such factors are of a direct benefit to the Account. 8. Fees. The compensation of Manager shall be calculated and paid in accordance with Schedule A attached. 9. Valuation. In computing the market value of the investments for the Account, securities traded on a national securities exchange will be valued, where available, at the closing price listed in the New York Stock Exchange composite trading tape, the NASDAQ quotation system or the American Stock Exchange tape for the valuation date. Any other security or asset shall be valued in a manner determined in good faith by Manager to reflect its market value. 10. Investment Policy and Diversification. The Client's investment policy, attached hereto as Schedule C, is incorporated by reference into this Agreement. The Manager shall review the Client's written investment policies and guidelines, as they are amended from time to time, to insure compliance by the Manager. The Manager acknowledges that it has read and fully understands the provisions of Chapters 112, Florida Statutes, and the limitations and prohibitions regarding investments therein contained. The Manager agrees to observe those statutory provisions together with the investment policy and guidelines as set forth by the Client. In the event that the Manager should purchase any security in violation of those statutes and/or the policy of the Client, and as a result of any sale thereof realizes a loss as measured by the initial purchase price of the security, the Manager shall make the Client whole for any such losses. Said losses may be offset by an gains on unauthorized Atlanta Capital Management Company, L.L.C. Page 4 purchases. It will be the responsibility of the Trustees to advise Manager of its investment policy, and of any changes in the event that more than one investment manager has been appointed with regard to the Plan, for the diversification of Account investment, and of any changes or modifications therein and to give Manager prompt written notice if the Trustees deem any investment made for the Account to be inconsistent with such policy; provided unless the Trustees deliver written notice as to a securities purchase or position that the securities purchase or position shall be deemed to be in accord with the Trustees' stated investment policy. 11. Termination. This Agreement may be terminated by the Trustees at any time upon giving written notice of the termination. This Agreement may be terminated by Manager by giving thirty (30) days written notice to the Trustees. This Agreement shall automatically terminate in the event the Manager's registration as an investment advisor under the Investment Advisors Act of 1940 (the "Advisors Act") is suspended or revoked, said termination to be effective with the date of such suspension or revocation. 12. Assignment. No assignment, as that term is defined in the Advisers Act, of this Agreement shall be made by Manager without the prior written consent of the Trustees. 13. Notices. Unless otherwise specified herein, all notices, instructions and advice with respect to security transactions or any other matters contemplated by this Agreement shall be deemed duly given when deposited in the mail postage prepaid and addressed (a) to Manager at the address first above-written, (b) to the Trustees at the address appearing below, or (c) to the Custodian at such address as the Custodian may specify to Manager in writing, which notice may serve to confirm a prior oral notice as provided in Paragraph 4 hereof, or at such other address or addresses as shall be specified, in each case, in a notice similarly given. 14. Representations by the Trustees. The Trustees represent and confirm that they are a Named Fiduciary as defined in ERISA with respect to the control or management ofthe assets ofthe Plan and that the employment and appointment of Manager is authorized by the governing documents relating to the Plan and that the terms hereof do not violate any obligation by which the Trustees are bound, or by which Manager, as an investment manager for the Plan, is intended to be bound, whether arising by contract, operation of law or otherwise. The Trustees further represent that (a) this Agreement has been duly authorized by appropriate action and when executed and delivered will be binding upon the Trustees in accordance with its terms, and (b) the Trustees will deliver to Manager such evidence of such authority as Manager may reasonably require, whether by way of certified resolution or otherwise. 15. Representations by Manager. By execution of the Agreement, Manager represents and confirms (a) that it is registered as an investment adviser under the Advisers Act, (b) that, with respect to the performance of its duties hereunder in connection with the Account, Manager isa "fiduciary" as that term is defined in ERISA and ( c) that, subject to Paragraph 10 hereof, Manager accepts sole responsibility to manage, and to direct the acquisition and disposition of the assets of the Account as of the effective date of this Agreement. Manager accepts the responsibility to diversify Account investments only within the limitations of the investment policy established by the Trustees pursuant to Paragraph 10 hereof and, if the Account represents less than the entire Plan, specifically does not accept the responsibility for the diversification of the Plan as a whole or the investment of Atlanta Capital Management Company, L.L.C. Page 5 the assets which are not a part of the Account. 16. Construction. This Agreement shall be governed by the laws of the State of Florida. Venue for resolution of any dispute under the terms of this Agreement shall be in Pinellas County, Florida. In the event of any legal action arising out of the enforcement or interpretation of this Agreement, the prevailing party shall be entitled to recover its costs and attorneys' fees. The provisions ofthis Agreement are severable. In the event that any provision ofthis Agreement is void and unlawful, it shall no longer be a part hereof, but the remainder of this Agreement shall be of full force and effect. 17. Effective Date. The effective date of this Agreement is :z 1'1 ' 20 f12 t 18. Inception Date for Performance. The inception date for peril ance calculatIons for the account will be the calendar month-end date following a minimum period 000 days after funds are made available for investment, or such earlier date as may be mutually agreed to by the parties thereto. 20. Rescission. The Trustees acknowledge receipt of Form ADV Part II which accompanies this Agreement. Manager acknowledges that, notwithstanding the foregoing Paragraphs hereof, the Trustees shall have a unilateral right to rescind this Agreement without penalty by giving written notice of rescission to Manager in accordance with Paragraph 14 hereof in such a manner that the notice shall have been received by Manager within the 5 business days next following the effective date. For purposes ofthis Paragraph, the term "business days" shall mean Monday through Friday, excluding holidays. In the event the Trustees rescind this Agreement in accordance with this Paragraph neither party shall have any obligation or liability to the other. Countersigned: ~~ Brian Aungst Mayor-Commissi ner CITY OF CLEARWATER, FLORIDA B~,,"/:;' ~""I! William B.HQrne II City Manager Attest: r / ~~~ / ..ff1./Cynthia E. Goudeau Of./ - City Clerk .. Atlanta Capital Management Company, L.L.C. Page 6 Accepted and agreed to as of the above date. Atlanta Capital Management Company, L.L.c. By: {)tfr 7: Ne~ 2D O:? '-'" Date Atlanta Capital Management Company, L.L.C. Page 7 SCHEDULE A Atlanta Capital Management Company, L.L.c. Two Midtown Plaza, Suite 1600 1349 West Peachtree Street Atlanta, Georgia 30309 Gentlemen: We agreed to pay for your services an annual fee based upon the total market value of the assets of the Account under management (include cash or its equivalent held for investment), according to the following schedule: Value of Assets Fees First $50 million Above $50 million .80% .70% We understand that we shall be billed quarterly in arrears as of the last valuation date at one-fourth of the above annual rate. The fee will be prorated if the assets are under supervision or management for less than a full quarter. Inception portfolio: $15,000,000 (cash) Tax Identification Number: 59-6000289 Agreed to as of the effective date of this Agreement: Julv 14,2003. BOARD OF TRUSTEES OF THE EMPLOYEES' PENSION PLAN OF THE CITY OF CLEARWATER, FLORIDA Attest: By: William R. Hac T COMPANY, L.L.c. auf man, Pension Attorney Accepted and agreed to as of the above date.