Exhibit (h)(2)
ADMINISTRATOR AGREEMENT
between
IOWA PUBLIC AGENCY INVESTMENT TRUST
and
INVESTORS MANAGEMENT GROUP, LTD.
January 1, 2004 - December 31, 2006
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ADMINISTRATOR 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"), Investors Management Group, Ltd., an
Iowa Corporation (the "Administrator") 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, 2004 (the
"Custodian Agreement"), Xxxxx Fargo Bank Iowa, N.A., is custodian (the
"Custodian") to the Trust, and
WHEREAS, pursuant to an Advisor Agreement dated January 1, 2004 (the
"Advisor Agreement"), Investors Management Group, Ltd. is advisor (the
"Advisor") to the Trust; and
WHEREAS, the Trust desires to avail itself of the experience, resources,
advice, and assistance of the Administrator and to have the Administrator
undertake the duties and responsibilities hereinafter set forth, on behalf of
the Trustees of the Trust, as provided herein; and
WHEREAS, the Administrator is willing to undertake to render such
services, on the terms and conditions hereinafter set forth;
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:
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ARTICLE I. DELIVERY OF DOCUMENTS
Section 1.1. Documents Delivered. The Trust has delivered to the
Administrator properly certified or authenticated copies of each of the
following documents presently in effect and will deliver to them all future
amendments and supplements thereto, if any:
A. Amended Joint Powers Agreement and Declaration of Trust,
dated as of October 1, 1987, as amended August 1, 1988 and May 1, 1993
(the "Declaration");
B. Restated Bylaws of the Trust (the "Bylaws");
C. Certified resolutions of the Trustees of the Trust
authorizing the appointment of Investors Management Group, Ltd., as
Administrator of the Trust and approving the form of this Agreement;
D. Information Statement of the Trust ("Information Statement");
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, 2004.
G. A copy of the Advisor Agreement dated January 1, 2004.
H. A copy of the Administrator Agreement dated January 1, 2004.
ARTICLE II. APPOINTMENT, DUTIES AND COMPENSATION.
Section 2.1. Appointment of Administrator. The Trust hereby appoints
Investors Management Group, Ltd. Administrator of the Trust on the terms and for
the period set forth in this Agreement, and Investors Management Group, Ltd.,
hereby accepts such appointment and agrees to perform the services and duties
set forth in this Article 2 for the compensation provided in Section 2.15
hereof.
Section 2.2. Services and Duties. The Administrator shall:
A. Supervise all aspects of the Trust*s operations, other than
those operations which are to be managed by the Trust*s Advisor pursuant
to the Advisor
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Agreement between the Trust and the Advisor or by the Trust*s Custodian
pursuant to the Custodian Agreement between the Trust and the Custodian
as such agreements are now in effect and as the same may hereafter be
amended from time to time;
B. Act and operate the Trust in conformity with the Declaration,
Bylaws, and the Information Statement of the Trust, with the
instructions and directions of the Trustees, and 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. Prepare the Information Statement and such other documents as
may be used by the Trust in connection with seeking and obtaining
additional Participants;
D. Furnish the Trust, at the sole expense of the Administrator,
with the services of such persons competent to perform such
administrative and clerical functions as maybe necessary from time to
time in order to provide effective administration of the Trust and
maintain or provide for the maintenance of such accounts, books and
records as are required by the Declaration, Bylaws, the current
Information Statement, and as requested by the Trustees of the Trust;
E. Provide necessary data for the preparation by the Trust of
any and all required tax returns of the Trust;
F. Prepare monthly statements to the Trust*s Participants;
G. Prepare periodic updates of the Information Statement;
H. Maintain accounts and records for the Trustees as required by
the Declaration of Trust;
I. Determine the per-Unit net asset value of each Participant*s
account in the Trust as required by the Declaration of Trust and in
accordance with generally accepted money market fund accounting
standards, and provide reports as required by this Agreement;
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J. Provide written confirmation of each investment and
withdrawal of moneys as directed by a Participant, and of each sale or
purchase of a fixed term security;
K. Hold itself available, receive, and process, on behalf of the
Trust, applications and registrations from entities desiring to become
Participants of the Trust;
L. Service all Participant accounts in the Trust by, inter alia,
answering inquiries during normal business hours from Participants
concerning the status of their respective accounts in the Trust and the
Trust*s investment program;
M. Advise the Trustees regarding the methods of seeking and
obtaining additional Participants of the Trust;
N. At least once each quarter, provide the Trustees with a
detailed evaluation of the performance of the Trust based upon such
factors as the Administrator shall deem appropriate in light of its
knowledge and experience.
O. Provide and maintain the computerized recordkeeping system
(i.e., IPAS Software) for use in facilitating Participant investments
and withdrawals into and out of the appropriate Participant account of
the Trust.
P. Provide daily rate information for each portfolio and Fixed
Term Automated investment alternatives for distribution to Participants.
Q. Prepare, provide and maintain all records of the Trust,
including all meetings of the Trustees or the sponsoring associations,
including agendas and minutes, in accordance with state and federal laws
and policies of the Trust.
R. The Administrator will serve as the primary contact for
Participant interaction with the Trust and will facilitate all
investment transactions and related money movement services. The
Administrator agrees to maintain a minimum of two program
representatives available to assist Participants and to maintain a
multi-line, audio recorded 1-800 toll free telephone service for the
exclusive use by Participants.
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1. The Administrator shall perform the following administrative
service in its capacity as primary contact for Participants:
a. Assist with the opening of new Participant accounts including
verification that each Participant is eligible to be a member of the
Trust and to participate in Trust programs and that required opening
procedures have been followed.
b. Take telephonic, electronic, oral and/or written investment
orders from authorized representatives of the Participants, including
verification that each authorized representative is properly documented
in accordance with Trust procedures. All telephonic investment
instructions shall be audio recorded.
c. Enter all investment transactions for proper recordation and
credit into the web-based participant recordkeeping system ("IPAS
Software").
d. Receive and respond to all electronic, written or telephonic
inquiries received by the Administrator on behalf of the Trust including
quotation of investment rates, verification of account balances, audit
verification responses, transaction history or other aspects relating to
the Trust or the Participant's accounts.
e. Facilitate and process all movement of moneys between the
Trust and the Participant's account at the Participant's local financial
institution. Money movement methods shall include automated clearing
house (ACH), Federal Reserve Bank Wire (wire), or check. Such money
movement methods established by the Administrator shall require that all
Trust or Participant funds be moved only within a "closed system"
between the Participant's preauthorized local account and their Trust
account. The Administrator shall assure that no Participant
disbursements are made to persons or locations outside this
preauthorized "closed system". The cost of money movement shall be borne
by the Administrator under the terms of this Agreement.
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f. Utilizing standard banking and trust procedures, assure that
all moneys received from or on behalf of Participants are fully
collected and available to the Trust prior to crediting such moneys to
the Participant's account or investing such moneys in Trust investment
securities.
g. Independently verify and reconcile daily with the Advisor, by
information provided through the IPAS System, all Participant
transactions made, and provide notification to the Custodian of the
total amount of funds to be deposited or withdrawn from the Custody
account/s representing such Participant transactions. The Administrator
shall have sole authority to direct the withdrawal of funds from the
Custody Account/s, with the exception of the Trust having such authority
by giving written instruction to the Custodian pursuant to Section
3.2(d) of the Custodian Agreement.
h. Receive and verify on behalf of the Trust all withdrawal
requests representing authorized payment of fees and expenses of the
Trust, and direct such payment from the appropriate Trust custody
account/s in accordance with authorizations given by the Trust.
I. 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.
Section 2.3. Credit of Deposits. Upon receiving an investment request by
or on behalf of a Participant, the Administrator shall enter the transaction
into the IPAS Software for recordation and proper credit to be given to the
Participant by the Advisor including credit for Trust Units or individual
securities purchased through the Fixed Term Automated Investment Program. The
Administrator shall facilitate the movement of money related to all investment
transactions and shall, upon giving notice to the
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Custodian, credit such money to the appropriate account of the Trust. An
investment request made by a Participant in the form of a telephonic or
electronic authorization shall be deemed to constitute the presentation of an
investment request. The Administrator shall forward a transaction confirmation
evidencing each investment and a monthly account summary evidencing all
investments within a month for each Participant account.
Section 2.4. Redemption and Payment of Units. Upon receiving a
withdrawal request by or on behalf of a Participant for the redemption of Trust
units or the sale of securities held through the Fixed Term Automated Investment
Program, the Administrator shall enter the transaction into the IPAS Software
for recordation and for the proper redemption of Trust units or sales of Fixed
Term Securities by the Advisor. The Advisor shall advise the Administrator of
the amount to be withdrawn from the appropriate account held by the Custodian
for the Units to be redeemed or the amount to be withdrawn for investments
redeemed or sold pursuant to the Fixed Term Automated Investment Program. A
withdrawal request made by a Participant in the form of a telephonic or
electronic authorization shall be deemed to constitute the presentation of a
withdrawal request. Upon processing a withdrawal request, the Administrator
shall, upon first giving notice to the Custodian, make payment of the requested
amount to the applicable Participant by facilitating the movement of money to
the Participant's account at its local financial institution out of the moneys
held in the applicable Trust portfolio account or Fixed Term Securities account;
provided however, that if the amount being withdrawn by a Participant exceeds
the amount in the Participant's account, payment shall not be made in whole or
in part. The Administrator shall forward a transaction confirmation evidencing
each withdrawal and a monthly account summary evidencing all withdrawals within
a month for each Participant account.
Section 2.5. Suspension of Redemptions. The Administrator shall not
honor any requests for redemption during any period with respect to which the
right of withdrawals and redemptions by Participants have suspended temporarily
pursuant to the terms of the Declaration.
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Section 2.6. Determination and Reporting of Fixed Term Automated
Investment Yields. Written confirmations of investments issued and mailed to
Participants will include a complete description of the instrument, including
the par amount, the interest or coupon rate of the instrument and its maturity
date. The actual purchase price will be shown including the premium or discount
paid, the amount of accrued interest, if any (which will be recovered on the
next interest payment date), and the yield on the instrument (calculated as
described in the Information Statement, net of all expenses).
Yields quoted on investments are the net return to the Participant after
deducting annual expenses. In the event an investment is sold or redeemed prior
to maturity the return will be reduced by the amount of any unamortized
expenses.
Because market rates on longer-term investments fluctuate daily, rates
quoted by the Administrator may change during the course of the day. However, no
transactions will be consummated at a rate more than one quarter of a percent
below the quoted rate without the transaction first being reconfirmed with the
Participant.
Section 2.7 Daily Valuations. The Administrator shall value the
investment portfolio of each series once each day, as of the close of the New
York Stock Exchange (currently 3:00 p.m. Des Moines time). Valuations will be
made on an amortized cash basis. Except for Federal holidays and other holidays
that are officially observed by commercial banks in Iowa, the Trust is required
to compute the net asset value of each series on each day the New York Stock
Exchange is open for trading or during which there is a sufficient degree of
trading in its portfolio securities that its net asset value may be materially
affected. Valuations shall be recorded by the Administrator. Reports shall be
confirmed in writing, at the end of each month.
Section 2.8. Weekly Valuations. The Administrator shall value the
investment portfolio of the Trust on a market value basis once each week on
Wednesday (or, if Wednesday is a Federal holiday or a holiday officially
observed by commercial banks in Iowa, on the next succeeding non-holiday
business day) by 3:00 p.m. Des Moines time.
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The market value shall be as of the close of business on Wednesday; provided,
however, that if such Wednesday was a Federal holiday or a holiday officially
observed by commercial banks in Iowa, the valuation shall be performed as of the
preceding nonholiday business day. Such value shall be recorded and shall be
confirmed in writing at the end of each month.
Section 2.9. Asset Valuation and Monitoring Compliance.
1. The Advisor shall monitor the deviation between valuing the
portfolio securities using the amortized cost method and using
market values by
a. Determining as frequently as necessary, but no less
frequently than once a month, the percentage change in
interest rates which could occur without the net asset
value per share being impacted by more than 1/2 of 1
percent;
b. Reviewing the change in interest rates daily; and
c. Verifying at least monthly the accuracy of the method
used to monitor daily the deviation by valuing the
assets at market using either:
(1) Actual quotations, or
(2) Calculations of market values done by an
independent broker or pricing service based upon
yield data derived from market quotations for
sufficient numbers and types of instruments to
be a representative sample of each class of
instrument held by the Fund, both in terms of
the types of instruments, as well as the
differing quality of the instruments.
Section 2.10. Monthly Reports. The Administrator shall prepare and
furnish to the Trustees no later than the fifteenth (15th) Iowa banking day of
each month: (I) a list of the
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Trust assets of each series as of the last day of the preceding month, (ii) a
list of all outstanding Fixed Term Automated Investment Program investments, and
(iii) the confirmation of the daily and weekly valuations of each series of the
investment portfolio of the Trust.
Section 2.11. Reports to Trustees
1. The Administrator shall report promptly to the Trustees:
a. A change in interest rates or any other factor which
causes the deviation to become $.997 or $1.003 and a
recommendation as to the steps to be followed to avoid
any change in net asset value.
b. A rating down grade from a rating service being used by
the Advisor on a security owned by the Fund with
information necessary to reassess whether the security
presents minimal credit risks and a recommendation of
the action it believes is in the best interest of the
Fund and its shareholders.
c. Whenever the Administrator becomes aware any rating
service has rated a security owned by the Fund below its
second highest rating with information necessary to
reassess whether the security presents minimal credit
risks and a recommendation of the action it believes is
in the best interest of the Fund and its shareholders or
advise the Fund the security has been sold within five
business days of the Administrator becoming aware of the
new rating.
d. Any security owned by the Fund which defaults, has
ceased to be an Eligible Security, or presents more than
a minimal credit risk with information necessary to
determine whether,
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in the best interest of the Fund, to dispose of the
security or to advise the Board that the security has
been disposed of in an orderly fashion.
2. The Administrator shall report on each Fund as promptly as
possible following the end of each quarter the result of the
verifications of the daily monitoring, the method or independent
source used to value assets at market, and the range of
deviations during the quarter.
3. The Administrator shall report on each Fund annually that the
written procedures have been followed, that they continue to be
appropriate, that all systems used to compute net asset values
and monitor deviation have been tested during the year and
provide information in a manner consistent with the requirements
of the written procedures and in conformity with the provisions
of Rule 2a- 7.
4. The Administrator will present the following information at each
quarterly meeting of the Board of Trustees:
a. Current financial condition and changes since last
meeting.
b. Current Portfolio and Approval of Investments since last
meeting.
c. Review 12b-1 Expenditures.
d. A statement of the Trust*s transactions during the
preceding month for each series. Section 2.12. Record
Keeping.
1. The Administrator shall maintain current information evidencing
an evaluation of the creditworthiness of the issue for all
securities owned by the Funds.
2. The Administrator shall maintain a record for a period of six
years
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evidencing the evaluation of the creditworthiness of the issuer of any
security that was a subject of a report to the Board.
3. The Administrator may maintain all records in a manner most
convenient to it.
Section 2.13. Filing of Forms with Secretary.
1. File Form NSAR with SEC by March 1 and August 29 in each year.
2. File Post-Effective Amendment to Form -1 Registration Statement
with SEC by October 29 in each year.
Section 2.14. Technology.
1. Definitions
a. "IPAIT Data" means Trust participant names and
accountrelated information.
b. "IPAIT Content" means all materials provided by
Administrator hereunder, including but not limited to
text, graphics, or materials generated in any form or
media.
c. "IPAIT Site" means the Universal Resource Locator
xxx.xxxxx.xxx.
d. "IPAS Software" means web-based participant
recordkeeping system under the domain name
xxx.XXXXxxxxxx.xxx.
e. "Work" means the work performed under this section 2.14.
2. Web Xxxx-xxx.xxxxx.xxx
a. Administrator shall post IPAIT Content and maintain and
modify the IPAIT Site or other Work as otherwise
mutually agreed to in writing by the parties. All Work
performed shall be done within a mutually agreeable time
frame.
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b. Trust shall own the IPAIT Site and Administrator shall
register or renew the Trust's Site with all appropriate
agencies in IPAIT's name. Administrator shall renew the
registration of the IPAIT Site as required, shall act as
the Administrative, Technical, Zone and Billing Contact
when registering or renewing the IPAIT Site, and provide
annually to Trust proof of registration or renewal of
the IPAIT Site. Upon termination or expiration of this
Agreement, Administrator shall also notify all URL
agencies of the successor Administrative, Technical,
Zone and Billing Contact when registering or renewing
the IPAIT Site and shall provide written evidence of
such notification to Trust prior to the date this
Agreement terminates or expires.
c. Unless otherwise specified in this Agreement, all
graphics and other visuals designed for Trust, content
written for Trust, and all intellectual property rights
therein shall be deemed to be the sole and exclusive
property of Trust and shall be deemed to be a "work made
for hire" and made in the course of the services
rendered under this Agreement. To the extent that any
title to any such content, graphics and other visuals
may not, by operation of law, vest in Trust or such
works may not be considered works made for hire, all
right, title and interest therein shall be irrevocably
assigned to Trust. All such content, graphics and other
visuals shall belong exclusively to Trust with Trust
having the right to obtain and to hold in its name
copyrights, registrations or such other protection as
may be appropriate to the subject matter, any extensions
and
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renewals. Although registering of any copyrights or
other intellectual property rights shall be the sole
responsibility of Trust, Administrator agrees to provide
reasonable assistance and cooperation to Trust to
acquire, transfer, maintain, perfect, and enforce the
intellectual property rights in the content, graphics
and other visuals, including but not limited to
execution of assignment of ownership or other documents
as may be reasonably required by Trust.
d. Administrator shall provide to Trust all source codes
for any programming or Work performed under Section
2.14(2), if any.
e. Administrator shall be responsible for obtaining any
rights, licenses, clearances, releases, or other
permissions necessary to place IPAIT Content on the
IPAIT Site.
f. Trust shall be responsible for obtaining any rights,
licenses, clearances, releases, or other permissions
necessary to place content written by Trust on the IPAIT
Site.
g. Trust shall own all IPAIT Data and Administrator shall
provide all necessary assistance to Trust or third
parties authorized by Trust to allow IPAIT access to use
or transfer of the IPAIT Data.
3. IPAS Xxxxxxxx-xxx.XXXXxxxxxx.xxx
a. For a period of three (3) years after a termination of
this Agreement or change in relationship between Trust
and Administrator ("Time Period"), such that
Administrator no longer provides administrative services
to Trust through the IPAS Software, Administrator grants
Trust a license to use the
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IPAS Software and all related materials and products
developed or prepared for Trust and Administrator shall
allow Trust access to and use of all source code(s) for
the IPAS Software and IPAIT Data for the sole purpose of
providing administrative services to Trust participants
during the Time Period.
b. During the Time Period, Trust shall pay Administrator a
license fee of $1,000 per month. Trust may terminate the
license and the license fee during the Time Period by
providing a thirty (30) day written notice to
Administrator.
c. At the commencement of the Time Period, Administrator
shall, at no additional cost, provide all necessary
assistance to Trust and third parties authorized by
Trust to transfer IPAIT Data to a location designated by
Trust. Any costs associated with conversion or transfer
of IPAIT Data shall be the sole responsibility of Trust.
4. Warranties and Representations
a. Administrator represents and warrants that it is the
owner of or otherwise has the right to use, distribute,
and license or sublicense all materials and
methodologies used in connection with providing the
services and products which are the subject of this
Section 2.2(N), that such materials and methodologies
(other than information or materials supplied by Trust
and accurately reproduced in the Work) shall not
infringe any copyright or other proprietary right of a
third party, and that Administrator will comply with all
applicable laws and regulations in performance of its
obligations hereunder.
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Administrator represents and warrants that (1) the Work
to be performed and services to be provided by it under
this Section 2.14 will be rendered using sound,
professional practices and in a competent and
professional manner by knowledgeable, trained and
qualified personnel; (2) the Work will be configured
using commercially reasonable technical specifications;
(3) the Work will operate in conformance with the terms
of this Section 2.14; (4) the Work to be performed by it
under this Section 2.14 will not violate any law,
statute, ordinance or regulation (including without
limitation the laws and regulations governing export
control, unfair competition, anti-discrimination or
false advertising; (5) the Work to be performed by it
under this Section 2.14 will not be defamatory, trade
libelous, unlawfully threatening or unlawfully
harassing; (6) the Work to be performed by it under this
Section 2.14 will not be obscene, child pornographic, or
indecent; and (7) the Work to be performed by it under
this Section 2.14 will be free of any software disabling
devices, internal controls, or computer programming
routines that are intended to damage, detrimentally
interfere with, surreptitiously intercept or expropriate
any system, data or personal information.
b. Administrator agrees to defend at its own cost and
expense any claim or action against Trust, its
subsidiaries and/or affiliated companies, for actual or
alleged infringement of any patent, copyright or other
property right (including, but not limited to,
misappropriation of trade secrets) based on any Work
furnished to Trust by Administrator under this Section
2.14 or the use thereof by Trust.
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Section 2.15. Compensation. For the services to be rendered and the
obligations assumed by the Administrator pursuant to this Agreement, the Trust
will pay to the Administrator as full compensation a fee as provided in
attachment Exhibit A. The Administrator shall pay all expenses associated with
the performance of this Agreement.
ARTICLE III. EXPENSES
Section 3.1. Expenses Paid by Administrator. The Administrator shall pay
the following expenses, in addition to the expenses to be paid by it pursuant to
Article 2 above:
A. Employment of a minimum of two full-time service
representatives, including office space, supplies and incidental support
necessary for the performance of this Agreement.
B. Cost of administering the Administrator Agreement and
participating in the planning and organizational development and general
support of the Trust and its programs, including cost of Administrator's
legal counsel.
C. Cost of providing Participant money movement, whether by
Federal Reserve Bank Wire, automated clearing house, or other bank
transfer methods.
D. All expenses associated with the development, installation,
maintenance, updating and use of the IPAS Software.
Section 3.2. Expenses Paid by the Trust. All expenses of the Trust not
allocated to the Administrator pursuant to Section 3.1 hereof shall be paid by
the Trust, including, but not limited to the following:
(I) Interest and taxes, if any;
(ii) Brokerage commissions;
(iii) Compensation (if any) and expenses of Trustees;
(iv) Legal, audit and accounting expenses of the Trust; (v)
Fees and expenses of the Custodian and the Advisor;
(vi) Costs of appropriate insurance written by reputable
insurers for the Trust and its interests;
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(vii) Expenses incidental to holding meetings of the Trustees
or its Participants;
(viii) 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
(ix) 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
Administrator. 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 Administrator 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 Administrator will indemnify, hold
harmless, and protect the Trust against any damages, claims, liability, and
costs, including attorneys' fees, proximately caused by the Administrator's
negligent error or omission in the performance of any professional services
within the responsibility of the Administrator or to any breach of duty or
obligation assumed by or required by the Administrator under the terms of this
Agreement.
Section 4.3. Administrator's Liability Limitation. The Administrator
assumes only those duties and obligations expressly identified herein. It
specifically assumes no
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responsibility for the management, investment or reinvestment of the assets of
the Trust. The responsibility for the proper and timely management, investment
and reinvestment of those assets shall be that of the Trust and the Advisor.
The Administrator shall not be liable for any action taken or neglected
to be taken by it in good faith in the exercise of reasonable care and believed
by it to be within the discretion or power conferred upon it by this agreement,
nor shall the Administrator be responsible for the consequences of any error of
judgment unless negligent or lacking in good faith; and the Administrator shall
not be answerable except for its own action, neglect or default, nor for any
loss unless the same shall have been through the negligence or want of good
faith by the Administrator. To the extent authorized by law, the Trust will
indemnify the Administrator for, and hold it harmless against, any liability
incurred by the Administrator for which it is not answerable pursuant to this
paragraph including costs and expenses incurred (including attorneys fees) as a
result of any claim of liability.
ARTICLE V. INSURANCE REQUIREMENTS
5.1 The Administrator shall purchase and maintain such insurance as will
protect the Administrator from Claims set forth below which may arise out of or
result from the Administrator's operations under this Agreement, whether such
operations be by the Administrator 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 Administrator's employee.
C. Claims for damages because of bodily injury, sickness or
disease, or death of any person other than Administrator's
employee.
Section 5.2 The insurance to be maintained by Administrator shall be
written as follows:
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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.
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 providers.
21
4. Contractual Liability coverage.
5. Coverage for property damage underground or damage by
explosion or collapse (XCU).
6. Umbrella/Excess Insurance - At Administrator's option,
the limits specified in the contract may be satisfied
with a combination of primary and Umbrella/Excess
Insurance.
7. Additional Insured - The Administrator 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.
E. Subrogation. To the extent that such insurance is in force and
collectible and to the extent permitted by law, the Trust and
Administrator 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 Administrator's
equipment, tools, and other personal property as well as
automobiles. A Waiver of Subrogation is also required as
respects the Administrator's Workers Compensation insurance.
22
ARTICLE VI. DURATION AND TERMINATION
Section 6.1. Term of Agreement. This Agreement, unless sooner terminated
as provided in Section 5.2 or 5.3 hereof, shall continue until midnight,
December 31, 2006.
Section 6.2. Early Termination. Notwithstanding the provisions of the
preceding Section 5.1, 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.
Section 6.3. Termination on Assignment, This Agreement automatically and
immediately terminates without notice or penalty in the event of its assignment
by any party hereto without the giving of prior written consent to such
assignment.
ARTICLE VII. CONSULTATION AND RELIANCE
Section 7.1. Consultation with Counsel. The Administrator 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 Administrator in good faith and in
accordance with such opinion.
Section 7.2. Reliance on Certificates. The Administrator is not liable
and is fully protected in relying upon any notice, instrument, direction or
other communication that the Administrator reasonably believes (based on the
most recent certificate of the Secretary of the Trust that has been received by
the Administrator) to have been given by an individual authorized to act on
behalf of the Trust.
ARTICLE VIII. MISCELLANEOUS
Section 8.1. Amendments. This Agreement shall not be modified or amended
without the consent of each party hereto, which consent must be evidenced by an
instrument in writing executed by each party hereto, or by their respective
successors or permitted assigns.
Section 8.2. 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.
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Section 8.3. 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 8.4. Binding Effect. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
Section 8.5. 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 Xxxxx X. Xxxxxx
Xxxxxx & Xxxxxx, P.C.
000 Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxx, Xxxx 00000
If to the Administrator:
Investors Management Group, Ltd.
0000 00xx Xxxxxx, Xxxxx 000
Xxxx Xxx Xxxxxx, Xxxx 00000
Attention: Xxxx XxXxxxx
If to the Custodian:
Xxxxx Fargo Bank Iowa, N.A.
Investment Management and Trust Department
000 Xxxxxx
X.X. Xxx 000 Xxx Xxxxxx, XX 00000
Attention: Vice President Custody Services
24
or at such other address or to the attention of such other individual specified
by written notice.
Section 8.6. Entire Agreement. This Agreement, and the documents
delivered pursuant to Section 1.1 constitute the entire agreement between the
parties.
Section 8.7. 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 8.8. 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 the 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 8.9. 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 8.10. Compliance with Laws, Rules and Regulations. Anything in
this Agreement to the contrary notwithstanding, the Administrator shall refrain
from any action which, in its reasonable judgment, or in the judgment of the
Trustees of which the Bank 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.
Section 8.11. Opinions and Reports. The Administrator shall provide such
opinions and reports of legal counsel and certified public accountants as may be
requested regarding the Administrator Agreement and relationship with the Trust
and the adequacy
25
and sufficiency of accounting, record keeping, and reporting obligations
pursuant to this Agreement.
Section 8.12. Effectiveness. This Agreement shall take effect January 1,
2004.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their officers designated below as of the ______ day of
____________, 2003.
IOWA PUBLIC AGENCY INVESTMENT TRUST
By__________________________________
Chair
Attest:
--------------------------
Secretary
INVESTORS MANAGEMENT GROUP, LTD.
By___________________________________
Attest:
--------------------------
26
EXHIBIT A
The Administrator shall receive a program support and development fee
payable monthly and computed at an annual rate equal to .08% of the Trust's
average daily assets of the Diversified Portfolio and the DGO Portfolio.
The annual administrator fee shall be payable monthly and computed at an
annual rate equal to .140% of the Trust's average daily assets up to $150
million for that Portfolio.
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 .12% 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 .10% of the Trust
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 44.90% 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 fee shall be computed daily and paid
monthly.
The fee may be modified upon the mutual agreement of the parties to this
Agreement in writing.
