Exhibit D.(2)
ADVISOR AGREEMENT
between
IOWA PUBLIC AGENCY INVESTMENT TRUST
and
WB CAPITAL MANAGEMENT, INC.
January 1, 2007 - December 31, 2009
ADVISOR AGREEMENT
This Agreement is made by and between the Iowa Public Agency Investment
Trust, an Iowa common law trust formed pursuant to Iowa Code chapter 28E and
sections 331.555 and 384.21 (the "Trust"), and WB Capital Management, Inc., an
Iowa corporation (the "Advisor") as follows:
WHEREAS, the Trust was established in Iowa by a Joint Powers Agreement
and Declaration of Trust dated as of October 1, 1987; and
WHEREAS, the beneficial interest of the Participants under the Joint
Powers Agreement and Declaration of Trust in the property of each series of the
Trust is divided into Units (the "Units"); and
WHEREAS, the Trust offers a Fixed Term Automated Investment Program; and
WHEREAS, pursuant to a Custodian Agreement, dated January 1, 2007, (the
"Custodian Agreement"), Xxxxx Fargo Bank, National Association, is custodian
(the "Custodian") to the Trust; and
WHEREAS, pursuant to an Administrator Agreement, dated January 1, 2007,
WB Capital Management, Inc. (the "Administrator") has agreed to provide certain
administrative services; and
WHEREAS, the Trust desires to avail itself of the experience, resources,
advice, and assistance of the Advisor and to have the Advisor undertake the
duties and responsibilities hereinafter set forth, on behalf of the Trustees of
the Trust, as provided herein; and
WHEREAS, the Advisor is willing to undertake to render such services, on
the terms and conditions hereinafter set forth;
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NOW, THEREFORE, in consideration of the premises and the mutual promises
and covenants hereinafter set forth, and other good and valuable consideration,
the receipt of which is hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I. DELIVERY OF DOCUMENTS
Section 1.1. Documents Delivered. The Trust has delivered to the Advisor
properly certified or authenticated copies of each of the following documents
presently in effect and will deliver to them all future amendments and
supplements, if any:
A. Amended Joint Powers Agreement and Declaration of Trust dated as of
October 1, 1987 as amended August 1, 1988, May 1, 1993, and September 1,
2005 (the "Declaration");
B. Restated Bylaws of the Trust (the "Bylaws");
C. Certified resolutions of the Trustees of the Trust authorizing the
appointment of WB Capital Management, Inc., as Advisor of the Trust and
approving the form of this Agreement;
D. Information Statement of the Trust (the "Information Statement"); and
E. A Certificate of the Secretary of the Trust setting forth the names
and specimen signatures of the individuals authorized to act on behalf
of the Trust in connection with matters arising hereunder as authorized
officers.
F. A copy of the Custodian Agreement dated January 1, 2007.
G. A copy of the Administrator Agreement dated January 1, 2007.
H. A copy of the Advisor Agreement, dated January 1, 2007.
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ARTICLE II. APPOINTMENT, DUTIES AND COMPENSATION
Section 2.1. Appointment of Advisor. The Trust hereby appoints, pursuant
to Section 3.1 of the Declaration, WB Capital Management, Inc., as Advisor of
the Trust on the terms and for the period set forth in this Agreement, and WB
Capital Management, Inc., hereby accepts such appointment and agrees to perform
the services and duties set forth in Section 2.2 hereof for the compensation
provided in Section 2.3 hereof.
Section 2.2 Service and Duties The following provisions of this
Agreement relate to the functions of the Advisor in its capacity as Advisor:
A. The Advisor shall:
1. Supervise continuously the investment program of the Trust, the
administration of the investment program, and the composition of its
portfolios;
2. Provide investment research, evaluation, and supervision of the
Trust's investments;
3. Determine what investment instruments shall be purchased or sold by
the Trust;
4. Arrange for the purchase and the sale of investment instruments held
in each portfolio of the Trust and the Fixed Term Automated Investment
Program;
5. In connection with the purchase of certificates of deposit by the
Trust, establish and maintain a list of state banks, national banks,
savings and loan associations, and savings banks located within Iowa
that qualify as depositories of public agencies under Iowa law and meet
criteria established or approved by the Trustees of the Trust;
6. Place all orders for the purchase, sale, or exchange of the Trust's
assets;
7. Attend all meetings of the Trustees and Participants;
8. Attend, assist with, or conduct workshops, informational meetings or
seminars organized or sponsored by the Trust;
9. Furnish the Trustees with statistical information, reports,
and evaluation of Trust assets, and such other information as the
Trustees may require for the management of the Trust; and
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10. Evaluate the performance of the Trust, the Administrator and the
Custodian and furnish such other information as the Trustees may require
for the management of the Trust. Such evaluations and information will
be furnished in response to inquiries from Trustees and in responding
thereto the Advisor will seek such information, as is appropriate, from
the Custodian and from other parties. The Advisor will not undertake
extensive independent investigations in order to respond to such
inquiries and will therefore not be liable for losses or claims incurred
by the Trust arising as a result of problems investigated by the
Advisor.
11. In conjunction with the Administrator, provide, upon the request of
a Participant of the Trust, individualized advice and consultation to
such Participant regarding such Participant's cash management program.
12. Monitor daily and weekly valuations of each series and if the
amortized cost value deviates materially from the market value (more
than .5%) will consider what action, if any, should be initiated to
reasonably eliminate or reduce material dilution or other unfair results
to Participants.
13. There shall be established by the Trust an internal control
structure to assure compliance with the Declaration of Trust, the
Agreements, Trust policies and procedures, and applicable laws and
rules. In conjunction with the Trust appointed legal counsel and public
accounting firm, provide support and assistance with audits and reviews
as required by the Trust.
B. Compliance. The Advisor shall act in conformity with the Declaration,
the Bylaws and the Information Statement and with the instructions and
directions of the Trustees and shall conform to and comply with all applicable
federal and state laws, rules and regulations, including, but not limited to,
the Investment Company Act of 1940 and all rules and regulations promulgated
thereunder.
C. Placement of Orders. The Advisor shall place all orders for the
purchase, sale, loan or exchange of investment instruments for the Trust's
account with brokers or dealers selected by the Advisor. The Advisor shall
determine whether investment instruments are Permitted Investments. The Advisor
is authorized as the agent of the Trust to give oral instructions to the Trust's
Administrator and Custodian, confirmed by written instructions to the Custodian,
as to deliveries of securities and payments for the account of the Trust. In
connection with the selection of brokers and dealers and the placing of orders,
the Advisor is directed to seek the most favorable execution and price.
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D. Best Judgment. The Advisor shall give the Trust the benefit of its
best judgment, experience and effort in rendering services hereunder, but the
Advisor shall not be liable for any loss sustained by reason of the adoption of
any investment policy or the purchase, sale or retention of any investment
instrument, whether the purchase, sale or retention is based upon its own
investigation and research or upon investigation and research made by any other
individual, firm or corporation, if the purchase, sale or retention is made and
such other individual, firm or corporation was selected with due care and in
good faith. Nothing herein contained shall, however, be construed to protect the
Advisor against any liability to the Trust or its Participants by reason of
misfeasance, bad faith or negligence in the performance of its duties, or by
reason of its reckless disregard of its obligations and duties under this
Agreement, nor shall anything herein contained constitute a waiver or limitation
on any rights which the Trust may have under any federal securities laws.
E. Maintain Name of Trust. The Advisor will maintain the name "Iowa
Public Agency Investment Trust" and assigns all right, title and interest in
this name to the Trust and agrees to relinquish any and all right to use of this
name by assignment or otherwise upon the termination of this Agreement or
extension thereof.
F. Program Support and Development. The following provisions of this
Agreement relate to the functions of the Advisor in its capacity as provider of
program support and development services. The Advisor shall:
1. Provide the services of a dedicated program representative to
illustrate the advantages of the investment services provided by the
Trust to Participants and potential participants;
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2. Annually prepare and present to the Trustees a summary of
anticipated activities and the projected results of support and
development of the program;
3. Annually prepare recommendations of enhancements to the
Trustees to be funded by existing and anticipated reserves within the
Trust Administration Fund; and
4. Quarterly prepare and present to the Trustees summaries of
results of program support and development activities.
Section 2.3. Compensation. For the services to be rendered and the
obligations assumed by the Advisor pursuant to section 2.2 of this Agreement,
the Trust will pay to the Advisor as full compensation a fee as provided in
attachment Exhibit A.
ARTICLE III. EXPENSES
Section 3.1. Expenses Paid by Advisor. The Advisor shall pay the
following expenses, in addition to the expenses to be paid pursuant to Section
2.2:
A. Costs of printing the Information Statement and such other documents
as may be used by the Trust in connection with its seeking and obtaining
of additional Participants;
B. Administrative costs of the Trust associated with the performance of
the Agreement; and
C. Expenses of preparing, printing and mailing Information Statements,
reports, notices and proxy material to Participants of the Trust.
Section 3.2. Expenses Paid by the Trust. All expenses of the Trust not
allocated to the Advisor pursuant to Section 3.1 hereof shall be paid by the
Trust, including, but not limited to the following:
(A) Interest and taxes, if any;
(B) Brokerage commissions;
(C) Compensation (if any) and expenses of its Trustees;
(D) Legal, audit and accounting expenses;
(E) Fees and expenses of the Custodian;
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(F) Costs of appropriate insurance written by reputable insurers
for the Trust and its interests;
(G) Expenses incidental to holding meetings of the Trustees or its
Participants;
(H) Nonrecurring expenses as may arise, including litigation affecting
the Trust and the legal obligations which the Trust may have to
indemnify its officers and Trustees with respect thereto; and
(I) Trust operations expenses incurred directly by the Trust and
authorized by the Trustees.
ARTICLE IV. LIMITATIONS OF LIABILITY
Section 4.1. Trust's Liability Limitation. The Trust has been created
pursuant to the Declaration, a copy of which has been delivered to the Advisor.
Reference is hereby made to Article V of such Declaration which contains certain
provisions limiting the liability of the Trustees, Participants, officers,
employees and agents of the Trust. The obligations of the Trust created
hereunder are not personally binding upon, nor shall resort be had to the
property of, any of the Trustees, Participants, officers, employees or agents of
the Trust, and only that portion of the Trust Property necessary to satisfy the
obligations of the Trust arising hereunder shall be bound or affected by the
operation of this Agreement. When dealing with third parties on behalf of the
Trust, the Advisor shall include such recitals in written documents as may be
reasonably requested by the Trust pursuant to the provisions of the Declaration
regarding the limitation of liabilities of the Trustees, Participants, officers,
employees and agents of the Trust to the third parties.
Section 4.2. Indemnification. The Advisor will indemnify, hold harmless,
and protect the Trust against any damages, claims, liability, and costs,
including attorneys' fees, proximately caused by the Advisor's negligent error
or omission in the performance of any professional services within the
responsibility of the Advisor or to any breach of duty or obligation assumed by
or required by the Advisor under the terms of this Agreement.
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ARTICLE V. INSURANCE REQUIREMENTS
Section 5.1 The Advisor shall purchase and maintain such insurance as
will protect the Advisor from claims set forth below which may arise out of or
result from the Advisor's operations under this Agreement, whether such
operations be by the Advisor or by any sub-contractor or by anyone directly or
indirectly employed by and of them, or by anyone for whose acts any of them may
be liable:
A. Claims under Workers' Compensation, disability benefit, and other
similar employee benefit acts.
B. Claims for damages because of bodily injury, occupational
sickness or disease, or death of the Advisor's employee.
C. Claims for damages because of bodily injury, sickness or disease,
or death of any person other than Advisor's employee.
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Section 5.2 The insurance to be maintained by Advisor shall be written
as follows:
A. Workers' Compensation and Employers Liability Insurance as
prescribed by Iowa law minimum limits shown below covering
Employers Liability:
Bodily Injury by accident $500,000 each accident
Bodily Injury by disease $500,000 each accident
Bodily Injury by disease $500,000 policy limit
B. Commercial General Liability Insurance Combined Single Limits
shown below covering Bodily Injury, Property Damage and Personal
Injury:
General Aggregate Limit $2,000,000
Products-Completed Operations
Aggregate Limit $2,000,000
Personal and Advertising Injury Limit $1,000,000
Each Occurrence Limit $1,000,000
Fire Damage Limit (for any one fire) $ 50,000
Medical Damage Limit (any one person) $ 5,000
C. Automobile Liability insurance, covering all owned, non-owned,
hired and leased vehicles with a minimum combined single limit
for Bodily Injury and Property Damage of $1,000,000 per accident.
Insurance must include Contractual Liability.
D. Bankers Professional Liability Insurance covering activities of
this Agreement.
Limit: Minimum of $5,000,000 each claim
$5,000,000 aggregate
Retention per loss: Please state.
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This insurance must include the following features.
1. Coverage for all premises and operations. The policy shall
be endorsed to provide the Aggregate Per Project
Endorsement.
2. Personal and Advertising Injury.
3. Operations by independent service provider.
4. Contractual Liability coverage.
5. Coverage for property damage underground or damage by
explosion or collapse (XCU).
6. Umbrella/Excess Insurance - At Advisor's option, the
limits specified in this Agreement may be satisfied with a
combination of primary and Umbrella/Excess Insurance.
7. Additional Insured - The Advisor will include the Trust as
additional insured on all policies except Worker's
Compensation as respects all work performed under this
Agreement.
8. Insurance Certificates - Each policy noted above shall be
issued by an insurance company authorized to write such
insurance in the State of Iowa and shall be reasonably
acceptable to the Trust. These insurance policies shall
not be cancelled without at least 10 days prior written
notice to the Trust. A properly executed Certificate of
Insurance showing evidence of these insurance requirements
shall be delivered to the Trust prior to the commencement
of work.
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E. Subrogation. To the extent that such insurance is in force and
collectible and to the extent permitted by law, the Trust and
Advisor each hereby releases and waives all right of recovery
against the other or anyone claiming through or under each of
them by way of subrogation or otherwise. The foregoing release
and waiver shall apply to damage to Advisor's equipment, tools,
and other personal property as well as automobiles. A WAIVER OF
SUBROGATION is also required as respects the Advisor's Workers
Compensation insurance.
ARTICLE VI. DURATION AND TERMINATION
Section 6.1. Term of Agreement. This Agreement, unless sooner terminated
as provided in Section 6.2 or 6.3 hereof, shall continue until midnight December
31, 2009.
Section 6.2. Early Termination. Notwithstanding the provisions of the
preceding Section 6.1, this Agreement may be terminated at any time by either
party, without the payment of any penalty by either party upon sixty (60) days
written notice to the other party.
Section 6.3. Termination on Assignment. This Agreement automatically and
immediately terminates without notice or penalty in the event of assignment by
any party hereto without giving prior written consent to such assignment.
ARTICLE VII. CONSULTATION AND RELIANCE
Section 7.1. Consultation with Counsel. The Advisor may consult with
reputable and experienced legal counsel (who may be counsel to the Trust)
concerning any question that may arise with reference to its duties under this
Agreement, and the opinion of such counsel is full and complete protection in
respect of any action taken or omitted by the Advisor in good faith and in
accordance with the opinion.
Section 7.2. Reliance on Certificates. The Advisor is not liable and is
fully protected in relying upon any notice, instrument, direction or other
communication that the Advisor reasonably believes (based on the most recent
certificate of the Secretary of the Trust that has been received by the Advisor)
to have been given by an individual authorized to act on behalf of the Trust
consistent with the Agreement, the Custodian Agreement, the Administrator
Agreement, the Declaration of Trust, and the policies and procedures of the
Trust of which it has notice.
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ARTICLE VIII. MISCELLANEOUS
Section 8.1. Other Activities of the Advisor. Nothing in this Agreement
shall prevent the Advisor or its officers, directors or employees from acting as
investment advisor or manager or administrator for any other person, firm,
corporation or entity and shall not in any way limit or restrict the Advisor or
any of its directors, officers, partners or employees, or any of its affiliates'
directors, officers, partners or employees from buying, selling or trading any
investment instruments for its or their own accounts, or for the accounts of
others for whom it or they may be acting. The Advisor represents that it will
undertake no activities which, in its judgment, will materially adversely affect
the performance of its obligations to the Trust under this Agreement. Directors,
officers, partners, employees and agents of the Advisor or of affiliated persons
of the Advisor may serve as officers, employees or agents of the Trust solely
within the limitations of the Declaration.
Section 8.2. Compliance with Laws, Rules and Regulations. Anything in
this Agreement to the contrary notwithstanding, the Advisor shall refrain from
any action which, in its reasonable judgment, or in the judgment of the Trustees
of which the Advisor has written notice, would violate any law, rule or
regulation of any governmental body or agency having jurisdiction over the Trust
or its Participants or which would not be permitted by the Declaration.
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Section 8.3. Opinions and Reports. The Advisor shall provide such
opinions and reports of legal counsel and certified public accountants as may be
requested regarding the Advisor Agreement and relationship with the Trust and
the adequacy and sufficiency of accounting, record keeping, and reporting
obligations of the Advisor pursuant to this Agreement.
The Advisor shall provide the Trust with the most recent report of
independent auditors concerning its function pursuant to this Agreement. The
report shall be provided prior to each annual closing of the Trust; provided,
however, that the Advisor shall notify the Trust immediately upon receipt of any
such report which contains any qualifications or indication of existence of
weakness.
The Advisor shall provide the trust within thirty (30) days of receipt
of all communications from its auditor or any regulatory authority of a material
weakness in internal control structure, or regulatory orders or sanctions
against the Advisor.
Section 8.4. Recommendations. Without limiting the generality of the
foregoing paragraph, the Advisor shall not recommend, or arrange for, the
purchase by the Trust of any investment instrument which is not a Permitted
Investment or the purchase or other acquisition of which would constitute a
violation of the investment restrictions applicable to the Trust set forth in
the Declaration or the policies and procedures of the Trust of which it has
notice.
Section 8.5. Dealing with Third Parties. When dealing with third parties
on behalf of the Trust in connection with the execution of investment
transactions and other matters, the Advisor shall include such recitals in
written documents as may be reasonably requested by the Trust pursuant to the
provisions of the Declaration regarding the limitation of liability of the
Trustees, Participants, officers, employees and agents of the Trust to third
parties.
Section 8.6. Amendments. This Agreement shall not be modified or amended
without the consent of each party, which consent must be evidenced by an
instrument in writing executed by each party, or by their respective successors
or permitted assigns.
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Section 8.7. Captions. The captions in this Agreement are included for
convenience of reference only and shall in no way define or limit any of the
provisions hereof or otherwise affect their construction or effect.
Section 8.8. Severability. If any provision of this Agreement shall be
held invalid under any applicable statute or regulation or by a decision of a
court of competent jurisdiction, this invalidity shall not affect any other
provision of this Agreement that can be given effect without the invalid
provision, and, to this end, the provisions are severable.
Section 8.9. Binding Effect. Subject to the provisions of Section 5.3,
this Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
Section 8.10. Notices. Notices or consents of any kind required or
permitted under this Agreement shall be in writing and shall be deemed duly
delivered if delivered in person or if mailed by certified mail, return receipt
requested, or telegraph, postage prepaid, to the appropriate party as follows:
If to the Trust:
Iowa Public Agency Investment Trust
c/o Xxxxxxxxx X. Xxxx
Xxxxxx & Xxxxxx, P.C.
000 Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxx, Xxxx 00000
If to the Advisor or Administrator:
WB Capital Management, Inc.
0000 00xx Xxxxxx, Xxxxx 000
Xxxx Xxx Xxxxxx, Xxxx 00000
Attention: Xxxx Xxxxxxxx
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If to the Custodian:
Xxxxx Fargo Bank, N.A.
Investment Management and Trust Department
000 Xxxxxx Xxxxxx
X.X. Xxx 000 Xxx Xxxxxx, Xxxx 00000
Attention: Vice President, Custody Services
or at such other address or to the attention of such other individual specified
by written notice.
Section 8.11. Entire Agreement. This Agreement, and the documents
delivered pursuant to Section 1.1 constitute the entire agreement between the
parties.
Section 8.12. Applicable Law. This Agreement shall be deemed to have
been executed in the State of Iowa, and the laws of the State of Iowa govern the
construction of this Agreement and the rights and remedies of the respective
parties hereto.
Section 8.13. Enforcement and Waiver. Each party has the right at all
times to enforce the provisions of this Agreement in strict accordance with the
terms, notwithstanding any conduct or custom on the part of such party in
refraining from so doing at any time or times. The failure to enforce its rights
under those provisions, strictly in accordance with the same, is not construed
as having created a custom in any way or manner contrary to specific provisions
of this Agreement or as having in any way or manner modified or waived the same.
All rights and remedies of the respective parties are cumulative and concurrent
and the exercise of one right or remedy shall not be deemed a waiver or release
of any other right or remedy.
Section 8.14. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute but one and the same instrument.
Section 8.15. Effectiveness. This Agreement shall take effect January 1,
2007.
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IN WITNESS WHEREOF, the parties hereby have caused this instrument to be
executed by their officers designated below as of the 25thday of October, 2006.
IOWA PUBLIC AGENCY INVESTMENT TRUST
By ______________________________________
Chair
Attest:
---------------------------------
Secretary
WB CAPITAL MANAGEMENT, INC.
By ______________________________________
Attest:
-----------------------------
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EXHIBIT A
The Advisor shall receive an advisor fee payable monthly and computed at
an annual rate equal to .09% of the Trust's average daily assets up to $150
million. If the Trust's average daily assets of the Diversified Portfolio or the
DGO Portfolio are greater than $150 million but less than $250 million, the fee
shall be .07% of the Trust's average daily assets for that amount in excess of
$150 million for that Portfolio. If the Trust's average daily assets of the
Diversified Portfolio or the DGO Portfolio are greater than $250 million, the
fee shall be .055% of the Trust's average daily assets for that amount in excess
of $250 million for that Portfolio.
The annual fee for operating the Fixed Term Automated Investment Program
will be 24.49% of the fee collected on securities purchased through the Fixed
Term Automated Investment Program in accordance with the schedule of fees
approved by the Trustees, the Administrator, the Advisor, and the Custodian.
Such fee will be paid by Participants from earnings on the amount invested
pursuant to the Fixed Term Automated Investment Program.
Subject to the foregoing, the fees shall be computed daily and paid
monthly.
The fee may be modified upon the mutual agreement of the parties to this
Agreement in writing.
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