Exhibit (9)(b)
Consulting Services Agreement between the Trust and PaineWebber
Incorporated
PRIME Asset Consulting
PaineWebber Incorporated
CONSULTING SERVICES AGREEMENT
This Consulting Services Agreement ("Agreement") is effective as
of January 1, 1996 by and between the Alameda-Contra Costa
Medical Association Collective Investment Trustees for Retirement
Plans (the "Client" or "Trustees") and PaineWebber Incorporated
("PaineWebber" or "Consultant").
WHEREAS, the Client has been established to provide a
satisfactory diversification of investments for various
Participating Trusts which are IRAs that are exempt from taxation
under Section 408(a) of the Internal Revenue Code of 1986, as
amended (the "Code"), and that are maintained in conformity with
Section 408(a) of the Code, or trusts described in Section 401(a)
of the Code that are exempt from taxation under Section 501(a) of
the Code and form parts of stock bonus, pension or profit-sharing
plans; and
WHEREAS, the Client serves as trustees to a trust which is
registered with the Securities and Exchange Commission as an
open-end diversified management investment company under the
Investment Company Act (the "Trust"); and
WHEREAS, the Client desires the Consultant to perform certain
advisory, consulting and reporting services and the Consultant is
willing to render such services;
NOW THEREFORE, in consideration of the mutual covenants and
agreements herein, the parties hereto hereby agree as follows:
1. Defined Terms
Unless otherwise defined in the Agreement, capitalized terms used
in the Agreement have the meanings defined in the Declaration of
Trust, dated February 9, 1990, establishing the Trust (the
"Declaration of Trust").
2. Services
PaineWebber will provide the following service(s) as reasonably
requested by Client:
- Quarterly monitoring of the performance of Client's investment
managers for up to eight (8) portfolios.
- Preparation of an asset allocation study and/or investment
policy statement(s).
- Assistance in the search for investment managers.
- Additional services; including
(i) assist Client in educating prospective and current
participants generally as to the investment objective and
policies of Client and the mechanics of investing in the Trust
and specifically in relation to the investment objectives and
goals of individual participants with respect to investment of
retirement assets;
(ii) assist Client in educating other medical associations as
Client and PaineWebber agree to the investment objectives and
policies of Client and the mechanics of investing in the Trust;
and
(iii) such other and additional investment consulting and
advisory services as may be reasonably requested.
3. Client Information
Client will provide PaineWebber with all pertinent information
regarding investment objectives, risk tolerance, asset
allocation, historical performance, income and liquidity
requirements of Client and prospective and current individual
participants as well as any other relevant matters that may from
time to time be requested. PaineWebber may rely on the
information so provided without further verification. If
Client's xxxxx or objectives change so that the information
previously provided is no longer accurate or complete, client
agrees to notify PaineWebber promptly about such change and to
provide the updated information.
4. Selection and Implementation
Client acknowledges that it has retained, and will exercise,
final decision-making authority and responsibility both for the
selection of any investment manager(s) as well as for the
implementation of any investment plan or strategy resulting from
the services provided under this agreement.
5. Information Provided
Any information provided by PaineWebber which has been obtained,
computed, formatted or displayed by outside sources is believed
accurate by may not have been independently verified by
PaineWebber and is not guaranteed or warranted. Of course,
information regarding past performance is not a guarantee of
future results. Any non-public information provided by either
party to the other will be considered confidential.
6. Fees
Client shall pay PaineWebber $72,000 per annum, payable annually
after the close of the calendar year by invoice from PaineWebber.
Invoices for fees shall be payable within thirty (30) days of
receipt. Any dollar amount paid by Client, as specifically
directed by Client's investment managers as "soft dollars" for
brokerage and execution services in accordance with a letter of
direction from Client, a copy of which shall be provided to
PaineWebber during the calendar year, shall be credited against
PaineWebber's fees at a rate of 50%. Such brokerage and
execution services shall be charged generally at six cents
($0.06) per share. The minimum commission for any equity
transaction shall not be less than $75. If Client uses directed
brokerage commissions to pay Consultant, Consultant may receive
commissions in excess of the amount needed to pay Consultant's
fee hereunder. Any excess amount generated for one calendar year
shall not be carried forward to apply to future years.
7. Representations
PaineWebber represents that it is a registered investment adviser
under the Investment Advisers Act of 1940 and that it is
authorized and empowered to enter into this agreement.
Client represents that it is authorized and empowered to enter
into this agreement. If this agreement in being signed on behalf
of a corporation, trust, partnership or other business or legal
entity, it is represented that applicable law and/or governing
documents both authorize and permit this agreement and provide
for the authority of the person signing this agreement.
8. Termination
Client may terminate this agreement within five business days of
its signing and receive a full refund of all fees paid to by
PaineWebber. Thereafter, Client or PaineWebber may terminate
this agreement by notifying the other in writing and termination
will become effective sixty (60) day after receipt of such
notice. However, termination will not affect Client
responsibilities under this agreement for fees owed as a result
of services rendered or cost incurred by PaineWebber. Upon
termination, PaineWebber will have no further obligation under
this agreement to act or advise Client with respect to its
assets.
9. Additional Contractual Matters
This agreement represents the entire understanding with regard to
the matters specified here, and any changes must be in writing.
If any part of this agreement is found to be invalid or
unenforceable, it will not affect the validity or enforceability
of the remainder of the agreement. This agreement is made and
will be interpreted under the laws of the State of California
provided that there is no inconsistency with the federal
securities laws. PaineWebber may not assign this agreement
without Client consent.
All written communication from client regarding the matters
covered by this agreement shall be sent to Client's Investment
Executive unless Client is specifically directed otherwise. All
such written communication to Client shall be sent to the address
contained in the records at PaineWebber.
This agreement only governs the services and fees specified
herein, and it shall not affect or be applicable to any other
services provided to Client or any related person or entity by
PaineWebber pursuant to separate agreement or understanding. Any
other services provided to Client will be subject to separate
fees or charges.
10. Arbitration
- Arbitration is final and binding on the parties.
- The parties are waiving their right to seek remedies in court
including the right to jury trial.
- Pre-arbitration discovery is generally more limited than and
different from court proceedings.
- The arbitrator's award is not required to include factual
findings or legal reasoning and any party's right to appeal or to
seek modification of rulings by the arbitrators is strictly
limited.
- The panel of arbitrators will typically include a minority of
arbitrators who were or are affiliated with the securities
industry.
Client agrees, and by carrying an account for you PaineWebber
agrees, that any and all controversies which may arise between
Client and PaineWebber concerning any account, transaction,
dispute or the construction, performance, or breach of this or
any other agreement, whether entered into prior, on or subsequent
to the date hereof, shall be determined by arbitration. Any
arbitration under this agreement shall be held under and pursuant
to and be governed by the Federal Arbitration Act, and shall be
conducted before an arbitration panel convened by the New York
Stock Exchange, Inc. or the National Association of Securities
Dealers, Inc. Client may also select any other national security
exchange's arbitration forum upon which PaineWebber is legally
required to arbitrate the controversy with Client, including,
where applicable, the Municipal Securities Rulemaking Board.
Such arbitration shall be governed by the rules of the
organization convening the panel. Client may elect in the first
instance the arbitration forum, but if Client fails to make such
election, by registered letter or telegram addressed to
PaineWebber at PaineWebber's main office, before the expiration
of five (5) days after receipt of a written request from
PaineWebber to make such election then PaineWebber may make such
election. The award of the arbitrators, or of the majority of
them, shall be final, and judgment upon the award rendered may be
entered in any court of competent jurisdiction.
No person shall bring a putative or certified class action to
arbitration, nor seek to enforce any pre-dispute arbitration
agreement against any person who has initiated in court a
putative class action; who is a member of a putative class who
has opted out of the class with respect to any claims encompassed
by the putative class action until:(I) the class certification is
denied; (II) the class is discertified; or (III) the customer is
excluded from the class by the court. Such forbearance to
enforce an agreement to arbitrate shall not constitute a waiver
of any rights under this agreement except to the extent stated
herein.
Client expressly agrees that service of process in any action
shall be sufficient if served by certified mail, return receipt
requested, at Client's last address known to PaineWebber. Client
expressly waives any defense to service of process set forth
above.
By signing this Agreement, Client hereby agrees to be bound by
the terms and conditions herein, including the arbitration clause
in section 10, and acknowledges receipt of both a copy of the
agreement and a copy of PRIME's investment advisory disclosure
document.
Agreed to the 22nd day of February 1996
AGREED TO:
Name of Client: Alameda-Contra Costa Medical Association
Collective Investment Trust for Retirement Plans
BY: (If more than one, all principals must sign. If any
signatory is a fiduciary, the capacity in which he/she is acting
should be indicated.)
(Signature) Xxxxxx X. Xxxxx Date: 2-22-96 Title: Chairman,
Supervisory Committee
(Signature) Xxxxxxx X. Xxxxxxx Date: 2-22-96 Title: Executive
Director
(Signature) Xxxxxxxx X. Xxxxx Date: 2-22-96 Title: Administrator
AGREED TO:
PRIME Asset Consulting
PaineWebber Incorporated
BY:
(Signature) Xxx Xxxxxxx Date: 2-20-96 Title: Senior Vice
President
