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HomeMy WebLinkAboutAgreement_Pension_09/20/20051012.7302 INVESTMENT MANAGER AGREEMENT THIS AGREEMENT is entered into by and between the BOARD OF TRUSTEES OF THE TEQUESTA GENERAL EMPLOYEES' PENSION FUND ("Trustees") and DANA fNVESTMENT ADVISORS; INC. ("Manager") this the ~~day of , ~ ~~-~iY14l~PX Y 2005. WITNESSETH: WHEREAS, the Village Council of Tequesta has enacted a pension plan, providing for the creation and operation of the Tequesta General Employees' Pension Fund ("the Fund"); and WHEREAS, the Pension Plan provides that the Trustees are solely responsible for administering for the Fund; and WHEREAS, the Pension Plan provides that the Trustees are required to engage the services of professional investment counsel to assist and advise the Trustees in the pertormance of their duties; and WHEREAS, the Trustees desire that the Manager serve as investment man- ager/professional money manager with respect to certain of the assets held by the Fund, and the Manager is willing to so serve. NOW, THEREFORE, in consideration of the mutual agreements herein contained, it is covenanted and agreed as follows: 1. Appointment of Investment Manager. The Trustees appoint the Manager as Investment Manager with respect to the assets of the Fund assigned to the Manager by the Trustees, including income and earnings attributable to such assets (collectively referred to as "Investment Assets") Page 1 of 12 1012.7302 2. Fee Schedule. For services under this Agreement, the Manager shall be entitled to receive from the Trustees a fee as set forth in the fee schedule attached as Exhibit A. Such fee shall be payable quarterly in arrears on the last day of such quarter, at one fourth (1/4th) the annual fee and shall be computed upon the fair market value of the Investment assets as of the first day of the quarter. For purposes of calculating the fee, the Investment assets shall be determined as the opening value on the first day of the quarter such values taken at market of all the Investment Assets under this contract. If the services to be rendered under this Agreement shall commence on a day other than the first day of a quarter, then the fee for such period shall be the product obtained by multiplying a full quarterly fee by a fraction, the numerator of which shall be 90. Upon termination of this Agreement on a date other than the end of a calendar quarter, the fee paid for such quarter shall terminate other than on the last day of a quarter, the fee shall be prorated based on the number of days in the quarter. No other fees or costs shall be payable without the express written consent of the Trustees. 3. Investment Adviser. The Manager hereby represents and warrants that it is duly regis#ered as an investment adviser under the Investment Advisers Act of 1940. Attached hereto as Exhibit B is a copy of the acknowledgment of the Manager's investment adviser registration by the United States Securities and Exchange Commission ("SEC"). The Manager agrees to immediately notify the Trustees, in writing, in the event of any change in its investment adviser registration. Attached as Exhibit C is a copy of the Manager's Certificate of Authority to transact business in the State of Florida. 4. Fiduciary Responsibility. The Manager holds itself out to bean expert in the field of investment counseling, and has sought the position of investment manager forthe Page 2 of 12 '1012.7302 Investment Assets which are the subject of this Agreement. The Manager represents that it has the skill and learning commonly possessed by prudent members of the investment counseling profession in good standing. The Manager hereby acknowledges that it is a fiduciary with respect to the Trustees and the Fund. Attached hereto as Exhibit D is a copy of the Manager's current SEC form ADV, Part II. The Manager agrees to immediately provide the Trustees with all material changes to its Form ADV. 5. Investment Guidelines. Attached hereto and made a part hereof as Exhibit E is a copy of Article 4 of the Pension Plan Document and the Investment Policy Guidelines. The Manager shall provide continuous supervision and management to the Investment Assets in accordance with the investment guidelines set forth in Exhibit E. If the Manager determines, at any time, that any of the investment guidelines in the attached Exhibit are inappropriate, the Manager shall promptly notify the Trustees in writing. Except as otherwise provided in Exhibit E, the Manager shall manage the investment of the Invest- ment Assets under its control in its complete discretion. The Trustees shall notify the Manager in writing of any changes in its investment guidelines. The Manager shall have a reasonable time to bring the investment assets into compliance after receiving such written notification. 6. Discretionary Authority. Except as otherwise provided in Section 5 hereof (Investment Guidelines), the Trustees hereby expressly grant to the Manager full and complete discretion and authority with respect to managing the investment of the Investment Assets, including, without limitation, authority to purchase, sell, exchange, convert, trade, and generally to deal in securities and other property comprising the Investment Assets. Page 3 of 12 1012.7302 7. Brokers. (a) The Managershall have the absolute authority and discretion to place orders on behalf of the Fund with such brokers or dealers whom the Manager may select, provided that the Manager shall place an order with a broker or dealer only if, in the Manager's judgment, and subject to the Manager's fiduciary responsibility to the Trustees and the Fund, best execution for the Fund may thereby be obtained within the meaning of ERISA Technical Release No. 86-1 (i.e., competitive commission cost, as well as the quality and reliability of the execution) a copy of which is attached hereto as Exhibit F. An accounting of commissions paid to brokers and dealers shall be provided to the Trustees quarterly. (b) The Trustees may express their preference, in writing, that the Manager utilize the services of certain brokers or dealers so as to use the commission to pay for performance evaluation or other services to the Trustees. However, the Manager shall not follow such an expression of preference unless the designated broker(s) or dealer(s) can provide best execution in respect of securities transactions within the meaning of ERISA Technical Release No. 86-1. In determining whether a designated broker or dealer can provide best execution for the Fund, the Manager shall consider only the quality and reliability of eXecutions by such broker or dealer, its financial responsibility, its responsiveness to the Manager, the commission rate offered in connection with securities transactions on behalf of the Fund and similar factors. In no instance shall the Managerfollow such an expression of preference if it conflicts with the Manager's fiduciary responsibility to act prudently with respect to the decision concerning who will execute the transaction. Page 4 of 12 1012.7302 (c) The Manager shall not be liable for any acts or omissions by any broker dealer selected by the Trustees or by the Manager, provided that the Manager has not acted negligently, or imprudently, in its selection or continuance of dealing with any broker or dealer. 8. Custodianship of Securities. The Board will provide for the custody of the Investment Assets at Salem Trust, as set forth in the Custodian Agreement attached as Exhibit G. 9. Proxies. The Manager shall have the exclusive authority and responsibility with regard to the voting of proxies and monitoring those other items requiring action by the Trustees with respect to the Investment Assets, including, but not limited to, stock dividends, rights offerings, calls or redemption of bonds. The Manager shall not be directed by any other person or entity with regard to the voting of proxies or taking action with :regard to the other items mentioned herein, unless such direction is given to the Manager in writing by the Trustees. The Manager hereby represents and warrants that it has established a procedure for reconciling proxies with holdings and that reasonable steps will be undertaken to insure that proxies are received and voted. Proxy voting by the Manager shall be consistent with the proxyvoting policy which is attached hereto as Exhibit H. The Manager is authorized to retain the services of a Proxy Voting Agent to assist Manager in researching, monitoring, and voting proxy statements. Due to the unique nature of Class Action settlement procedures associated therewith, the Trustees retain the sole authority to act upon any and all Class Action settlement or claims procedures brought on behalf of shareholders of security that the Fund either currently owns or has previously Page 5 of 12 1012.7302 owned during the applicable Class Action time period. However, Advisor shall provide reasonable assistance to the Trustees with respect to Class Action settlements, which shall include but not be limited to: the forward to the Trustees of any related correspondence that Advisor may receive from time to time regarding such settlements, the purchase and sale dates of any applicable securities transaction, as well as identifying the number of shares owned and the corresponding holding period(s) for such securities then in question. 10. Reports. The Manager shall provide the Trustees with a quarterly investment report on the Investment Assets. This report shall be provided to the Trustees, the administrative manager and the performance monitor. The report shall be presented s erm ~ - U,,v, ~n r,ti. ~-I to the Trustees by a representative of the Manager on a~~ basis in person. The reports shall include, but shall not be limited to the following matters, which shall be specifically presented in writing in the investment report: (a) A schedule setting forth the present market values in comparison with cost values, thereby showing-the gains and losses of each investment; (b) A detailed list of the transactions effected between each quarterly report; (c) A detailed listing of the commissions paid on each transaction in total, and on a per trade basis, indicating the name of the broker or dealer; (d) A summary of the average commission cost pertrade per each broker dealer, and for all brokers and dealers in total; (e) A report listing the vote on all proxies showing the date each proxy was voted, the issue as to which each proxy was voted, and how each proxy was voted. In Page 6 of 12 1012.7302 addition, if a proxy was notvoted, the Manager shall provide a written statement indicating the reason that a particular proxy was not voted; and (f) Such other reports and analysis as the Manager deems appropriate, or as the Trustees request. 11. Confidential Information. The Manager shall maintain and protect in strictest confidence any and all data, information, flr documents of, and concerning the finances, business, and affairs of, the Fund which it acquires in its performance of this Agreement. The Manager and the Fund agree that none of the aforesaid data, information or documents, and none of the reports and analyses prepared by the Manager as provided in Section 10 hereof (Reports), shall be disclosed to anyone except the Trustees, legal counsel to the Trustees and the Trustees' selected performance monitor, except as otherwise agreed upon in writing or as required by law. 12. Fidelity Bond. The Manager agrees to obtain and maintain at least a Five Hundred Thousand Dollar ($500,000.00) fidelity bond. Attached hereto as Exhibit I is a copy of the Manager's current fidelity bond and binder. The Manager agrees to immediately notify the Trustees, in writing, in the event any su bstantive change in coverage of said bond or if said bond is terminated, canceled or discontinued, in whole or in part. The Manager agrees to provide the Trustees with an annual certificate of insurance evidencing its fidelity bond. 13. Errors. and Omissions Insurance. The Manager agrees to obtain and maintain at least Five Million Dollars ($5,000,000.00) of errors and omissions insurance. Attached hereto as Exhibit J is a copy of the Manager's current errors and omissions insurance policy. The Manager agrees to immediately notify the Trustees, in writing, in the Page 7 of 12 1012.7302 event any substantive change in coverage of said insurance or if said insurance is terminated, canceled or discontinued, in whole or in part. The Manager agrees to provide the Trustees with a copy of an annual certificate of insurance evidencing its errors and omissions insurance. 14. Liability. The Trustees, jointly and severally, shall not be liable for any acts or omissions of the Manager, and shall be under no obligation or duty to invest, reinvest, manage, control, or dispose of the Investment Assets. The Manager specifically acknowledge fiduciary responsibility responsibility to the Fund and its participants and beneficiaries. The Manager shall not be liable for any act or omission of any other fiduciary with respect to the Fund. The fiduciary responsibility of the Manager includes the supervision, counseling, management and control of the Investment Assets within the meaning of applicable law and providing investment advice to the Trustees. The Manager shall be liable for any negligence, malfeasance, or bad faith in the performance of its duties, and for any losses or damage caused or suffered by its failure to perform its duties in accordance with fiduciary standards, or by its failure to comply with the provisions of the Investment Advisors Act of 1940, or by its failure to comply with the provisions of this Agreement. 15. Notices. All written communications from the Manager to Trustees shall be addressed to: Board of Trustees Village of Tequesta General Employees' Pension Fund Post Office Box 3273 250 Tequesta Drive, Suite 300 Tequesta, Florida 33469-0273 Copies of such notices shall also be sent to Fund Counsel: Page 8 of 12 1012.7302 Bonni S. Jensen, Esquire Hanson, Perry & Jensen, P.A. 400 Executive Center Drive Suite 207 West Palm Beach, Florida 33401 All written communications from the Trustees to the Manager shall be addressed to: Mark Mirsberger, COO Dana Investment Advisors, Inc. Post Office Box 1067 Brookfield, Wisconsin 53008-1067 16. Assi nabilitX. This Agreement may not be assigned without the prior written consent of the Trustees. 17. Entire Agreement. This Agreement, with attached Exhibits, constitutes the entire agreement between the parties hereto. 18. Modification. This Agreement maybe modified or revised only by vote of the Board and a written amendment signed by the Trustees' Chairman and Secretary and the Manager. 19. PriorAgreements. This Agreement supersedes all prior agreements with the Manager, oral or written. 20. Applicable law. This Agreement shall be interpreted in accordance with the laws of the State of Florida. 21. Venue. In any action to enforce the provisions ofthis agreement, venue shall be in Palm Beach County, Florida. Page 9 of 12 1012.7302 22. Termination. This Agreement may be terminated by the Trustees with 30 days written notice to the Manager. Manager may terminate this agreement with 90 days written notice to the Trustees. 23. Attorney Fees. If the Trustees engage an attorney, accountant, or other advisor to enforce the terms of this Agreement, whether by administrative action, legal action, litigation, or otherwise, and should the Pension Plan prevail or obtain any relief or remedy as a result of such action, then the Manager shall pay to the Pension Plan its reasonable attorney's fees, accountants' fees, advisors' fees, and costs. Page 10 of 12 1012.7302 ~~ ~ IN WITNESS WHEREOF, the parties hereto have executed this Agreement by their respective authorized representatives on the dates indicated below. BOARD OF TRUSTEES OF THE TEQUESTA GENERAL EMPLOYEES' PENSION FUND DANA INVESTMENT ADVISORS, INC. Chairman ,., r - ~-~ . 1 . Secretary U Date: ~ ~ I a-~ ~ 5 TT- By: a.~.~ r~' Title: ~h ~e~ ~~ec~-~, ~ z O~F~ ce.(' Date: ~-zp -o J` Wf ESS: WITNE ~~ ~ < _ As to Trustees As to Manager H:1Tequesta GE 1012\Vendorsllnv Mgr\Dana~Agrmn[.wpd Page 11 of 12 1012.7302 EXHIBIT A TEQUESTA GENERAL EMPLOYEES' PENSION FUND SCHEDULE OF CHARGES INVESTMENT MANAGEMENT SERVICES The annual fee is as follows: Equities First 3 million 0.75% Thereafter 0.65% Fixed Income 0.50% 0.40% Page 12 of 12