HomeMy WebLinkAboutR-16-08 FL Local Government Investment TrustRESOLUTION NO. R-16-08
A RESOLUTION OF THE CITY OF SEBASTIAN,
INDIAN RIVER COUNTY, FLORIDA, AUTHORIZING
AND DIRECTING EXECUTION AND DELIVERY OF
A JOINDER TO AGREEMENT AND DECLARATION
OF TRUST CREATING AND ESTABLISHING THE
FLORIDA LOCAL GOVERNMENT INVESTMENT
TRUST; AND PROVIDING AN EFFECTIVE DATE.
NOW THEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF SEBASTIAN, FLORIDA:
SECTION 1. DEFINITIONS. Unless the context of use clearly indicates
another meaning or intent, the following words and terms as used in this Resolution shall
have the following meanings.
"City" shall mean the City of Sebastian, a municipal corporation organized under
the laws of the State of Florida.
"Clerk" shall mean the City Clerk or such other person as may be duly authorized
to act on his or her behalf.
"Council" shall mean the City Council of the City of Sebastian.
"Florida Trust" shall mean the Florida Local Government Investment Trust.
"Investment Fund" or "Investment Funds" shall mean one or more trust funds
established pursuant to the Trust Agreement to enable public entities to pool their surplus
funds for joint investment.
"Joinder Agreement" shall mean the Joinder to Agreement and Declaration of
Trust between the City and the Florida Trust, in substantially the form appended hereto as
Exhibit A.
"Mayor" shall mean the Mayor of the City of Sebastian, or such other person as
may be duly authorized to act on his or her behalf.
"Resolution" shall mean this Resolution, as the same may from time to time be
amended, modified or supplemented.
"Trust Agreement" shall mean the Agreement and Declaration of Trust, dated as
of December 1, 1991, creating and establishing the Florida Trust, as amended, a
composite of which is attached to the Joinder Agreement as Appendix A thereto.
SECTION 2. FINDINGS. It is hereby determined that:
(A) It furthers the public interest for the City to invest any monies not
immediately required to be disbursed and to maximize the net earnings on such funds.
(B) The Florida Local Government Investment Trust has been established
pursuant to the Trust Agreement for the purpose of establishing one or more Investment
Funds for pooling surplus funds of public entities for joint investment.
(C) The City desires to have the Investment Funds available if they become an
advantageous investment for the City's surplus funds; the investment policy adopted
pursuant to Section 218.415, Florida Statutes, permits investment in the Investment
Funds established by the Florida Local Government Investment Trust.
(D) The City is required to become a party to the Trust Agreement as a
condition precedent to participation in any Investment Fund.
(E) The City Clerk has approved the City's participation in the Florida Trust,
which is a condition precedent to participation in the Florida Trust.
SECTION 3. AUTHORIZATION OF TRUST AGREEMENT. The
City Council hereby authorizes and directs the Mayor to execute, and the City Clerk to
attest under the seal of the City, the Joinder Agreement for the purpose of becoming a
party to the Trust Agreement and evidencing the City's agreement to become bound by
the terms thereof. The Mayor is further directed to deliver the Joinder Agreement to the
Florida Trust for execution by its appropriate officers. Upon execution and delivery of
the Joinder Agreement by the City and the Florida Trust, all of the terms and provisions
of the Joinder Agreement and the Trust Agreement shall be deemed to be a part of this
Resolution as fully and to the same extent as if incorporated verbatim herein. The
Joinder Agreement shall be in substantially the form attached hereto as Exhibit A, with
such. changes, amendments, modifications, omissions and additions as may be approved
by the Mayor. Execution of the Joinder Agreement by the Mayor shall be deemed to be
conclusive evidence of approval of such changes.
SECTION 4. EFFECTIVE DATE. This Resolution shall take effect
immediately upon its adoption.
The foregoing Resolution was moved for adoption by Councilmember
Hili The motion was seconded by Councilmember
Gilimor and, upon being put to a vote, the vote was as follows:
Mayor Bob McPartlan
Vice Mayor Jerome Adams
Councilmember Andrea Coy
Councilmember Jim Hill
Councilmember Richard Gillmor
aye
aye
aye
The Mayor thereupon declared this Resolution duly passed and adopted this 13'h day of
April, 2016.
ATTEST:
WJ
Pette--," lniams, MMC
City Clerk
CITY OF SEBASTJ4N, F ORIDA
i
BOB MCPARTLAN
Mayor
ral �,1- �
Obert A. Ginsburg, City Attorney
EXHIBIT A
JOINDER TO AGREEMENT AND DECLARATION OF TRUST
JOINDER TO
AGREEMENT AND DECLARATION OF TRUST
THIS JOINDER TO AGREEMENT AND DECLARATION OF TRUST is
made and entered into as of t% (3 , 2016, by and between City of Sebastian, Florida
(the "City") and the Florida Local Government Investment Trust ("Florida Trust").
WHEREAS, it furthers the public interest for the City to invest any monies not
immediately required to be disbursed and to maximize the net earnings on such funds;
and
WHEREAS, the Florida Trust has been established for the purpose of establishing
one or more investment funds (each referred to herein as an "Investment Fund") for
pooling the surplus funds of participating public entities for joint investment in order to
seek a higher rate of return without compromising the safety of such funds; and
WHEREAS, the City desires to have the Investment Funds available should they
be determined, at any time, to be an advantageous investment for the City's surplus
funds; and
WHEREAS, the Investment Funds are only available to public entities that have
become parties to the Agreement and Declaration of Trust creating the Florida Local
Government Investment Trust, dated as of December 1, 1991 (the "Trust Agreement"), as
amended; and
WHEREAS, the City Clerk has previously approved the City's participation in
the Florida Trust.
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements herein contained, the City and the Florida Trust hereby agree as follows:
SECTION 1. JOINDER IN TRUST AGREEMENT. Upon execution and
delivery of this Joinder Agreement and adoption of the requisite Resolution, the City
shall become a full party to the Trust Agreement, the form of which is attached hereto as
Appendix A and incorporated herein by reference, pursuant to Section 2.03 thereof.
SECTION 2. COUNTERPARTS. This Joinder Agreement may be
simultaneously executed in two or more counterparts, each of which shall be an original
and all of which shall constitute but one and the same instrument. The signatures of
parties appearing on one or more counterparts shall bind them as fully as though all such
parties had signed the same counterpart.
IN WITNESS WHEREOF, the Florida Local Government Investment Trust and
the City Council of the City of Sebastian, Florida, have caused this Joinder Agreement to
be executed and attested by its duly authorized officers, all as of the date first above
written.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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ATTEST:
Secretary of e Board of Trustees
ATTEST:
*nette t.'lillC1, k
[(SEAL)]
FLORIDA LOCAL GOVERNMENT
INVESTMENT RUST
By:
airman of thWToard of
Trustees
CITY COUNCIL OF THE
CITY OF SEBASTIAN
By: - / j
; 9d
BOB MCPARTLAN
Mayor
Robert A. Ginsburg
City Attorney
APPENDIX A
FORM OF
AGREEMENT AND DECLARATION OF TRUST
FORM OF
AGREEMENT AND DECLARATION OF TRUST
Creating and Establishing the
FLORIDA LOCAL GOVERNMENT INVESTMENT TRUST
Reflecting Amendments as of March 23, 2012
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND CONSTRUCTION
SECTION 1.01. DEFINITIONS................................................................................... 3
SECTION 1.02. SECTION HEADINGS......................................................................6
ARTICLE II
CREATION AND PURPOSE OF TRUST
SECTION 2.01. CREATION OF TRUST.................................................................... 7
SECTION 2.02. PURPOSE AND NATURE OF TRUST............................................7
SECTION 2.03. PARTICIPANT REQUIREMENTS.................................................. 8
SECTION 2.04. PRINCIPAL OFFICE........................................................................ 8
ARTICLE III
BOARD OF TRUSTEES
SECTION 3.01.
APPOINTMENT OF TRUSTEES.....................................................9
SECTION 3.02.
RESIGNATIONS...............................................................................
9
SECTION 3.03.
BOARD MEETINGS.......................................................................10
SECTION 3.04.
QUORUM AND VOTING..............................................................10
SECTION 3.05.
CONFLICTS OF INTEREST..........................................................11
SECTION 3.06.
BOOKS AND RECORDS...............................................................11
SECTION 3.07.
OFFICERS OF THE BOARD.........................................................11
SECTION 3.08.
COMPENSATION...........................................................................11
SECTION 3.09.
STANDARD OF CARE..................................................................12
SECTION 3.10.
LIABILITY......................................................................................12
SECTION 3.11.
INDEMNIFICATION......................................................................12
SECTION 3.12.
LEGAL TITLE TO TRUST PROPERTY.......................................13
SECTION 3.13.
EXECUTION OF DOCUMENTS...................................................13
SECTION3.14.
BY-LAWS........................................................................................13
SECTION3.15.
SEAL................................................................................................13
SECTION 3.16.
SURETY BONDS............................................................................13
SECTION 3.17.
RECITALS.......................................................................................14
SECTION 3.18.
RELIANCE ON EXPERTS.............................................................14
ARTICLE IV
POWERS OF TRUSTEES
SECTION 4.01. GENERAL.......................................................................................15
SECTION 4.02. INVESTMENT FUNDS..................................................................15
SECTION 4.03.
ACQUISITION AND DISPOSITION OF ASSETS .......................18
SECTION 4.04.
DELEGATION................................................................................19
SECTION 4.05.
COLLECTION.................................................................................19
SECTION 4.06.
PAYMENT OF EXPENSES............................................................20
SECTION 4.07.
BORROWING AND INDEBTEDNESS.........................................20
SECTION 4.08.
DEPOSITS.......................................................................................20
SECTION 4.09.
VALUATION..................................................................................
20
SECTION 4.10.
FISCAL YEAR AND CHART OF ACCOUNTS ...........................
20
SECTION 4.11.
CONCERNING THE TRUST AND AFFILIATES ........................
20
SECTION 4.12.
INVESTMENT POLICY.................................................................
21
SECTION 4.13.
AGENTS AND EMPLOYEES........................................................
21
SECTION 4.14.
INSURANCE...................................................................................
21
SECTION 4.15.
ANNUAL REPORTS......................................................................
21
SECTION 4.16.
PURSUIT OF REMEDIES..............................................................
22
SECTION 4.17.
INFORMATION STATEMENT.....................................................
22
SECTION4.18.
TAXES.............................................................................................
22
SECTION 4.19.
RIGHTS AS HOLDERS OF TRUST PROPERTY ........................
22
SECTION 4.20.
EDUCATION AND TECHNICAL ASSISTANCE ........................
22
SECTION 4.21.
FURTHER POWERS......................................................................
23
ARTICLE V
INVESTMENT ADVISOR, ADMINISTRATOR AND
TRUST COUNSEL
SECTION 5.01. APPOINTMENT..............................................................................24
SECTION 5.02. DUTIES OF THE INVESTMENT ADVISOR ............................... 24
SECTION 5.03. DUTIES OF THE ADMINISTRATOR...........................................24
SECTION 5.04. DUTIES OF THE TRUST COUNSEL ............................................ 25
SECTION 5.05. SUCCESSORS................................................................................. 25
ARTICLE VI
CUSTODIAN
SECTION 6.01. QUALIFICATIONS.........................................................................26
SECTION 6.02. SUCCESSORS.................................................................................26
SECTION 6.03. PROHIBITED TRANSACTIONS...................................................26
ARTICLE VII
INTEREST OF PARTICIPANTS
SECTION7.01. GENERAL....................................................................................... 27
11
SECTION 7.02.
INVESTMENTS..............................................................................
27
SECTION 7.03.
EVIDENCE OF PARTICIPANT SHARES....................................27
SECTION 7.04.
REDEMPTIONS..............................................................................
27
SECTION 7.05.
SUSPENSION OF REDEMPTION OR PAYMENT......................28
SECTION 7.06.
MINIMUM INVESTMENT............................................................
29
SECTION 7.07.
MINIMUM REDEMPTION............................................................
29
SECTION 7.08.
DEFECTIVE REDEMPTION REQUESTS ....................................
29
ARTICLE VIII
RECORD OF SHARES
SECTION 8.01. SHARE REGISTER.........................................................................30
SECTION 8.02. REGISTRAR....................................................................................30
SECTION 8.03. OWNER OF RECORD.................................................................... 30
SECTION 8.04. NO TRANSFER OF SHARES........................................................ 30
SECTION 8.05. LIMITATION OF FIDUCIARY RESPONSIBILITY .................... 31
SECTION8.06. NOTICES......................................................................................... 31
ARTICLE IX
VALUATION OF INVESTMENT FUNDS
SECTION 9.01. ASSET VALUATION..................................................................... 32
SECTION 9.02. COMPUTATION OF NET ASSET VALUE .................................. 33
SECTION 9.03. COMPUTATION .OF SHARE VALUE .......................................... 34
SECTION 9.04. EXPENSES, RETAINED EARNINGS AND RESERVES ............ 34
ARTICLE X
AMENDMENT OR TERMINATION OF TRUST;
DURATION OF TRUST
SECTION 10.01. AMENDMENTS..............................................................................35
SECTION 10.02. TERMINATION.............................................................................. 35
SECTION 10.03. DURATION..................................................................................... 36
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. GOVERNING LAW........................................................................ 37
SECTION 11.02. COUNTERPARTS...........................................................................37
SECTION 11.03. RELIANCE BY THIRD PARTIES ................................................. 37
SECTION 11.04. PROVISIONS IN CONFLICT WITH LAW...................................37
111
AGREEMENT AND DECLARATION OF TRUST
THIS AGREEMENT AND DECLARATION OF TRUST is made and entered
into as of December 1, 1991, by and among Brevard County, Hernando County, Manatee
County and Orange County, as the initial participants of the Florida Local Government
Investment Trust (the "Initial Participants") and Robert L. Anderson, Scott I. Cowan,
Martha O. Haynie, Karen Nicolai, Richard B. Shore and Terry R. Wood, as the initial
Trustees of the Florida Local Government Investment Trust (the "Initial Trustees")
WITNESSETH:
WHEREAS, it furthers the public interest for public entities to invest any monies
not immediately required to be disbursed and to maximize the net earnings on such funds;
and
WHEREAS, the Initial Participants each desire to enter into a trust agreement and
thereby establish one or more investment funds (each referred to herein as an "Investment
Fund") for pooling their surplus funds for joint investment in accordance with the
provisions of this Agreement and Declaration of Trust (the "Agreement"); and
WHEREAS, each of the Initial Participants has duly taken all official action
necessary and appropriate to become a party to this Agreement; and
WHEREAS, it is the desire and intent of the Initial Trustees to serve in the
capacity of trustees of the Florida Local Government Investment Trust for the purpose of
operating, managing and maintaining the assets and liabilities thereof; and
WHEREAS, it is the intent and purpose of this Agreement to invest the pooled
funds only in the manner authorized by applicable law; and
WHEREAS, it is proposed that the beneficial interest of any Participant hereunder
in the assets of any Investment Fund created pursuant to the provisions of this Agreement
shall be divided into non -transferable shares of beneficial interest, which shall be
evidenced by share registers maintained by or on behalf of the Trustees; and
WHEREAS, the Initial Participants anticipate that other public entities may wish
to become Participants hereunder by becoming parties to this Agreement;
NOW THEREFORE, in consideration of the mutual promises, covenants and
agreements contained herein, the Initial Participants and Participants hereafter added
pursuant to the provisions hereof, mutually undertake, promise and agree for themselves,
their respective representatives, successors and assigns that all monies, assets, securities,
funds and property now or hereafter acquired by the Trustees, their successors or assigns
under this Agreement, shall be held and managed in trust for the mutual and
1
proportionate benefit of the holders of record from time to time of shares of beneficial
interest in one or more Investment Funds established pursuant to this Agreement, without
privilege, priority or distinction among such holders, and subject to the terms, covenants,
conditions, purposes and provisions hereof as follows:
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ARTICLE I
DEFINITIONS AND CONSTRUCTION
SECTION 1.01. DEFINITIONS. As used in this Agreement and Declaration
of Trust, the following terms shall have the following meanings unless the context hereof
otherwise requires. Words importing the singular number shall include the plural in each
case and vice versa, and words importing persons shall include firms and corporations.
"Administrator" shall mean the person or persons appointed, engaged by the
Trustees in accordance with the applicable provisions of Section 5.01 hereof, to perform
the duties described in Section 5.03 hereof.
"Affiliate" shall mean, with respect to any person, another person directly or
indirectly controlled by or under common control with such person, or any officer,
director, partner or employee of such person.
"Agreement" shall mean this Agreement and Declaration of Trust, including any
amendments, supplements or joinders hereto executed and delivered in accordance with
the terms hereof.
"Annual Report" shall mean the annual report required by Section 4.15 hereof.
"Board" shall mean the Board of Trustees responsible for the operation and
administration of the Trust.
"Business Day" shall mean any day upon which banks in the State are open to
transact regular business.
"Clerk's Association" shall mean the Florida Association of Court Clerks and
County Comptrollers.
"County Association" shall mean the Florida Association of Counties, Inc.
"Custodian" shall mean the bank or trust company engaged by the Trustees in
accordance with the applicable provisions of Section 6.01 hereof.
"Custodian Agreement" shall mean the agreement between the Trust and the
Custodian referred to in Section 6.01 hereof, as the same may be amended from time to
time.
"Development Expenses" means any charges or expenses associated with the
initial formation of the Trust, including legal fees and amounts advanced by the County
Association and the Clerk's Association.
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"Education Expenses" means any charges or expenses associated with education
and technical assistance, as set forth in Section 4.20 hereof.
"Fiscal Year" shall mean the annual period beginning October 1 of each year and
ending September 30 of the following year unless modified by the Trustees pursuant to
Section 4.10 hereof.
"Information Statement" shall mean the information statement or other
descriptive document or documents adopted as such by the Trustees and distributed by
the Trust to Participants and potential Participants of the Trust as the same may be
amended by the Trustees from time to time.
"Initial Participants" shall mean Brevard County, Hernando County, Manatee
County and Orange County, which are Public Entities of the State and which, acting with
respect to the surplus funds of their respective treasuries, formed this Trust by the
execution and adoption of this Agreement.
"Initial Trustees" shall mean Robert L. Anderson, Scott I. Cowan, Martha O.
Haynie, Karen Nicolai, Richard B. Shore and Terry R. Wood, as the initial Trustees of
the Florida Local Government Investment Trust.
"Investment Advisor" shall mean the person or persons engaged by the Trustees
in accordance with the applicable provisions of Section 5.01 hereof to perform the duties
described in Section 5.02 hereof.
"Investment Advisory Agreement" shall mean the agreement with the
Investment Advisor referred to in Section 5.02 hereof as the same may be amended from
time to time.
"Investment Fund" shall mean a trust fund established by the Trustees pursuant
to Section 4.02 hereof, to enable the Participants to pool their surplus funds for joint
investment in accordance with the provisions of this Agreement.
"Net Asset Value" shall mean the aggregate value of Shares in an Investment
Fund, determined in accordance with Section 9.02 hereof.
"Operating Expenses" means any charges or expenses which, in the opinion of
the Trustees, are necessary or incidental to or proper for carrying out any of the purposes
of this Agreement, including appropriate compensation or fees to persons with whom the
Trust has contracted or transacted business.
"Participant" shall mean the Initial Participants and the Public Entities which
comply hereafter with the provisions of Section 2.03 hereof.
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"Permitted Investments" shall mean the investments authorized by the Trustees
for any specific Investment Fund, as authorized by Section 4.02 hereof.
"Public Entity" shall mean any municipality, county, public utility, or other
political subdivision of the State, or any department, agency, or instrumentality thereof,
or any political or public corporation thereof, existing as a local government entity under
the Constitution and laws of the State, which is authorized to invest in the Trust. The
term "Public Entity" shall be limited to those types of public entities that are political
subdivisions of the State of Florida within the meaning of the Internal Revenue Code of
1986, as amended, integral parts of the State of Florida, or entities whose income
qualifies for exclusion from gross income pursuant to Section 115 of the Internal
Revenue Code of 1986, as amended.
"Share" shall mean the unit used to denominate and measure the respective pro
rata beneficial interest of the Participants in the Trust Property, as described in Article
VII.
"Share Register" shall mean the register of Shares maintained pursuant to Article
VIII hereof.
"Share Value" shall mean the value of each Share in an Investment Fund,
determined in accordance with Section 9.03 hereof.
"State" shall mean the State of Florida.
"Transaction Execution Date" means the Business Day on which a Participant's
investment in or redemption from an Investment Fund is executed in accordance with the
terms hereof.
"Transaction Valuation Date" means (A) with respect to investments, each
Transaction Execution Date, and (B) with respect to redemptions, the Business Day
immediately preceding each Transaction Execution Date.
"Trust" shall mean the "Florida Local Government Investment Trust" as
established and governed by this Agreement.
"Trust Counsel" shall mean the attorney or firm of attorneys, experienced in
matter of local government law and duly admitted to practice law in the State, as may be
engaged or employed by the Board pursuant to Section 5.04 of this Agreement.
"Trust Property" shall mean, as of any particular time, any and all property, real,
personal, or otherwise, tangible or intangible, which is transferred, conveyed or paid to
the Trust or Trustees, and all assets, income, profits and gains therefrom and which, at
such time, is owned or held by or for the account of the Trust or the Trustees, including
but not limited to Permitted Investments.
5
"Trustees" shall mean the Initial Trustees of the Florida Local Government
Investment Trust designated in Section 3.01 of this Agreement or any successors
appointed thereafter as provided in said Section 3.01.
SECTION 1.02. SECTION HEADINGS. Any headings preceding the texts
of the several Articles and Sections of the Agreement and any table of contents or
marginal notes appended to copies hereof, shall be solely for convenience of reference
and shall neither constitute a part of this Agreement nor affect its meaning, construction
or effect.
rel
ARTICLE II
CREATION AND PURPOSE OF TRUST
SECTION 2.01. CREATION OF TRUST. There is hereby created and
established an investment trust for surplus public funds to be known as the "Florida Local
Government Investment Trust," the operation and administration of which shall be the
responsibility of the Trustees. The Trustees shall conduct the Trust's activities, hold
property, execute all documents and sue or be sued as the "Florida Local Government
Investment Trust" and such name (and the name "Trust", wherever used in this
Agreement or related documents, except where the context otherwise requires) shall refer
to the Board of Trustees in their capacity as Trustees, and not individually or personally,
and shall not refer to the officers, agents, employees, counsel, advisors, consultants,
accountants, or Participants of the Trust or of such Trustees. Should the Trustees
determine that the use of such name is not practicable, legal or convenient, they may use
such other designation or adopt such other name for the Trust as they deem proper, and
the Trust may hold property and conduct its activities under such designation or name.
The Trustees shall take such action as they deem necessary or appropriate to file or
register such name in accordance with the laws of the State or the United States of
America so as to protect and reserve the right of the Trust in and to such name.
SECTION 2.02. PURPOSE AND NATURE OF TRUST.
(A) The purpose of the Trust is to provide Investment Funds through which
Public Entities may pool funds which are not immediately required to be disbursed in
order to take advantage of Permitted Investments and maximize net earnings, subject to
and in accordance with the provisions of the laws of the State, from time to time in effect,
governing the investment of funds by such Public Entities.
(B) The Trust is created pursuant to and shall be subject to and governed by all
applicable laws of the State. The Trust is not intended to be, shall not be deemed to be,
and shall not be treated as a general partnership, limited partnership, joint venture,
corporation, investment company, joint stock company, or any other entity or
organization other than a local government surplus funds trust fund. The Participants
shall be the beneficiaries of the Trust and their relationship to the Trustees shall be solely
in their capacity as Participants and beneficiaries in accordance with the rights conferred
upon them hereunder.
(C) This Agreement is an agreement of indefinite term regarding the deposit,
redeposit, investment, reinvestment and withdrawal of local government funds within the
meaning of the laws of the State. The Trust Property shall be invested in compliance
with the laws of the State and the provisions hereof.
7
SECTION 2.03. PARTICIPANT REQUIREMENTS. A Public Entity may
become a Participant by (A) agreeing by written instrument to be bound by the terms of
this Agreement, and (B) providing written evidence to the Trust that the Clerk of the
Circuit Court, County Comptroller or other comparable officer of such Public Entity has
approved participation in the Trust, each in form and substance acceptable to the Trust
Counsel. Each Public Entity, once having become a Participant as set forth above, shall
continue as a Participant until a subsequent written instrument withdrawing from the
Trust is adopted and delivered to the Trustees and Administrator stating that Public
Entity's intent to withdraw from participation in the Trust.
SECTION 2.04. PRINCIPAL OFFICE. The Trust shall maintain an office
of record in the State and may maintain such other offices or places of business as the
Trustees may from time to time determine. The initial office of record of the Trust shall
be 3544 Maclay Boulevard, Tallahassee, Florida 32312. The office of record may be
changed from time to time by resolution of the Trustees, and notice of such change of the
office of record shall be given to each Participant.
ARTICLE III
BOARD OF TRUSTEES
SECTION 3.01. APPOINTMENT OF TRUSTEES. The Trust shall be
operated and administered by a Board of Trustees consisting of six members. Three
Trustees shall be appointed by and serve at the pleasure of the County Association and
three Trustees shall be appointed by and serve at the pleasure of the Clerk's Association.
Upon appointment, each Trustee shall execute, acknowledge and deliver to the Board and
the organization responsible for such Trustee's appointment an instrument in writing
accepting such appointment hereunder, and thereupon such Trustee, without any further
act, shall become fully vested with all the estates, properties, rights, powers, trusts, duties
and obligations of a Trustee. Each Trustee shall be appointed for a term of one year or
until his or her successor is appointed and qualified as provided herein. There shall be no
limit upon the number of successive terms to be served by any Trustee. Trustees' terms
shall commence on July 1. Notwithstanding the foregoing, the term of the initial Trustees
shall commence on the effective date of this Agreement and expire on June 30, 1992.
The initial Trustees of the Trust are as follows:
Name
Robert L. Anderson
Scott I. Cowan
Martha O. Haynie
Karen Nicolai
Richard B. Shore
Terry R. Wood
Appointing Organization
County Association
County Association
Clerk's Association
Clerk's Association
Clerk's Association
County Association
SECTION 3.02. RESIGNATIONS. Any Trustee may resign by delivering,
either by mail or in person, his or her written resignation to the Chairman of the Board
and the organization responsible for such Trustee's appointment. Any person appointed
to serve as a Trustee while serving as a County Commissioner, Clerk of the Circuit Court
or County Comptroller shall be deemed to resign as a Trustee on the date such person (A)
ceases to hold such office or (B) is suspended from such office, notwithstanding any
subsequent reinstatement. Any person who ceases being a Trustee for whatever reason
shall forthwith turn over to the remaining Trustees, at the principal office of the Trust,
any and all records, books, documents, property or other assets in his or her possession
owned by the Trust or by the Board incident to the fulfillment of this Agreement and the
administration of the Trust. The Trust shall immediately notify the County Association
and the Clerks Association in writing of the resignation of any Trustee appointed by such
0
association. The powers of the Board to act shall not be impaired or limited in any way
pending the appointment of a successor Trustee to fill any vacancy.
SECTION 3.03. BOARD MEETINGS.
(A) Notwithstanding any other provisions of this Agreement to the contrary,
meetings of the Board of Trustees shall be governed by the substantive provisions of
Section 286.011, Florida Statutes, as the same may hereafter be amended and
supplemented, and any subsequently enacted statute succeeding to the functions of
Section 286.011. The Trustees hereby individually and collectively agree to comply with
the provisions thereof.
(B) The annual meeting of the Board shall be held at such times and at such
places as determined periodically by the Board.
(C) Special meetings of the Board may be called by the Chairman and in his or
her absence by the Vice -Chairman, or by any three Trustees. By unanimous consent of
all of the Trustees, special meetings of the Board may be held without written notice at
any time and place; otherwise, notice of all special meetings of the Board shall be mailed
to each Trustee at least ten days prior to the time fixed for the meeting. The
Administrator shall receive notice of all meetings. All notices of special meetings of the
Board shall state the purpose thereof.
(D) To the extent permitted by Section 286.011, Florida Statutes, telephonic
regular or special meetings by conference call or other method of electronic voice
transmission which permits each participant to hear every other participant and join in the
discussion are specifically authorized.
(E) To the extent permitted by Section 286.011, Florida Statutes, in the event
all of the Trustees shall severally or collectively consent in writing to any action taken or
to be taken by the Trust, such action is a valid action as though it had been authorized at a
formal meeting.
(F) The Board shall meet not less than semiannually.
(G) Absence of any Trustee for three consecutive meetings in a year without
justification, excuse or good cause shall be deemed a resignation by such Trustee and the
organization responsible for such Trustee's appointment may declare vacant the position,
which shall be filled in the manner indicated above.
SECTION 3.04. QUORUM AND VOTING. A quorum for the transaction of
business at any regular or special meeting of the Board shall consist of a majority of the
Trustees then in office, but shall never be less than four Trustees; provided however, that
a majority of the Trustees present may act to continue the meeting to any time and date
specified in such action. Each Trustee shall be entitled to one vote at any meeting of the
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Board. No vote by proxy shall be permitted. The affirmative vote of not less than four
Trustees shall be required for any action of the Board.
SECTION 3.05. CONFLICTS OF INTEREST. No Trustee shall vote on
any matter which inures to his or her special private gain, or the special gain of any
principal, other than a Participant, by whom he or she is retained. Such Trustee shall,
prior to a vote being taken, disclose the nature of his or her interest in the matter from
which he or she is abstaining from voting.
SECTION 3.06. BOOKS AND RECORDS. The books and records
pertaining to the Trust shall be "public records" within the meaning of Section 119.01(1),
Florida Statutes, and any subsequently enacted statute defining the term "public records."
The Trustees hereby individually and collectively agree to comply with all provisions of
law applicable to "public records."
SECTION 3.07. OFFICERS OF THE BOARD. Officers of the Board
required by this Agreement shall be elected at the annual meeting held in accordance with
Section 3.03(A) of this Agreement. In addition, the Board may elect such other officers
from their number as it deems advisable. Notwithstanding their stated terms, all officers
shall serve at the pleasure of the Board.
(A) The Board shall elect a Chairman from their number, who shall serve for a
period of one year, or until a successor shall have been duly elected and qualified,
whichever is later and may be elected to an unlimited number of consecutive terms. The
Chairman shall be the chief executive officer of the Trust, shall preside at all meetings of
the Board, shall have general supervision over the affairs of the Trust and over the other
officers, and shall perform all such other acts and duties as are incident to the Chairman's
responsibilities as chief executive officer.
(B) The Board shall elect a Vice -Chairman from their number, who shall serve
for a period of one year, or until a successor shall have been duly elected and qualified,
whichever is later and may be elected to an unlimited number of consecutive terms. In
case of the absence or disability of the Chairman, the Chairman's duties shall be
performed by the Vice -Chairman. The Vice -Chairman shall perform such additional
duties as are authorized by the Board.
(C) The Board shall elect a Secretary from their number, who shall serve for a
period of one year, or until a successor shall have been duly elected and qualified,
whichever is later and may be elected to an unlimited number of consecutive terms. The
Secretary shall record and circulate the minutes of all meetings, shall prepare agendas and
records, and perform such additional duties as are authorized by the Board.
SECTION 3.08. COMPENSATION. No Trustee shall be compensated for
service as a Trustee. A Trustee may be reimbursed for out-of-pocket expenses in
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attending meetings or for other authorized travel on behalf of the Trust. No Trustee shall
be employed or engaged by the Board to provide professional or other services to the
Trust.
SECTION 3.09. STANDARD OF CARE. The Trustees shall use ordinary
care and reasonable diligence in the administration of the Trust. Nothing contained in
this Agreement, either expressly or by implication, shall be deemed to impose any duties
or responsibilities on the Trustees other than those expressly set forth in this Agreement.
SECTION 3.10. LIABILITY. A Trustee shall not be personally liable for
monetary damages to any person for any statement, vote decision, or failure to act,
regarding the management or policy of the Trust unless:
(A) the Trustee breached or failed to perform his or her duties as a Trustee; and
(B) the Trustee's breach of, or failure to perform, his or her duties constitutes:
(1) A violation of the criminal law, unless the Trustee had reasonable
cause to believe such conduct was lawful or had no reasonable cause to believe
such conduct was unlawful. A judgment or other final adjudication against a
Trustee in any criminal proceeding for violation of the criminal law shall estop
that Trustee from contesting the fact that such breach, or failure to perform,
constitutes a violation of the criminal law; but does not estop the Trustee from
establishing that such Trustee had reasonable cause to believe that such conduct
was lawful or had no reasonable cause to believe that such conduct was unlawful;
(2) A transaction from which the Trustee derived an improper personal
benefit, either directly or indirectly; or
(3) Recklessness or an act or omission which was committed in bad
faith or with malicious purpose or in a manner exhibiting wanton and willful
disregard of human rights, safety, or property.
For the purposes of this Section 3.10, the term "recklessness" means the
acting or omission to act, in conscious disregard of a risk: (i) known, or so
obvious that it should have been known to the Trustee; and (ii) known to the
Trustee, or so obvious that it should have been known, to be so great as to make it
highly probable that harm would follow from such action or omission.
SECTION 3.11. INDEMNIFICATION.
(A) The Trust shall, to the extent permitted by law, indemnify any person who
was or is a party (other than an action by, or in the right of, the Trust), by reason of the
fact that such person is or was a Trustee, officer or direct employee of the Trust against
liability incurred in connection with such proceedings on behalf of the Trust, including
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any approval of such proceedings, if such person acted in good faith and in a manner
reasonably believed to be in, or not opposed to, the best interest of the Trust and, with
respect to any criminal action or proceedings, had no reasonable cause to believe such
conduct was unlawful. The termination of any proceedings by judgment, order,
settlement, or conviction or upon a plea of nolo contendere or its equivalent shall not, of
itself, create a presumption that the person did not act in good faith and in a manner
which he or she reasonably believed to be in, or not opposed to, the best interest of the
Trust, or, with respect to any criminal action or proceeding, had reasonable cause to
believe that his or her conduct was unlawful.
(B) In case any claim shall be made or action brought against any person in
respect of which indemnity may be sought against the Trust, such indemnified person
shall promptly notify the Trust in writing setting forth the particulars of such claim or
action. The indemnified person shall be entitled to select and retain counsel of his or her
choice. The Trust shall be responsible for the payment or immediate reimbursement for
all reasonable fees and expenses incurred in the defense of such claim or action.
SECTION 3.12. LEGAL TITLE TO TRUST PROPERTY. Title to all
Trust Property shall be vested in the Trust on behalf of the Participants who shall be the
beneficial owners. The Trustees shall have full and complete power to cause legal title to
any Trust Property to be held, on behalf of the Participants, by or in the name of any
other entity or person as nominee, on such terms, in such manner, and with such powers
as the Trustees may determine; provided that the interests of the Trust are adequately
protected as a consequence thereof.
SECTION 3.13. EXECUTION OF DOCUMENTS. All documents or
instruments which require the signature of the Trustees shall be signed by the Chairman
of the Board of Trustees (as Trustee) or by such other person as designated by resolution
of the Trustees.
SECTION 3.14. BY-LAWS. The Trustees may adopt and from time to time,
amend or repeal by-laws for the conduct of the business of the Trust. The by-laws,
among other things, may define the duties of the respective officers, agents, employees
and representatives of the Trust.
SECTION 3.15. SEAL. The Trustees shall have full and complete power to
adopt and use a seal for the Trust, but unless otherwise required by the Trustees, it shall
not be necessary for the seal to be placed on, and its absence shall not impair the validity
of any document, instrument or other paper executed and delivered by or on behalf of the
Trust.
SECTION 3.16. SURETY BONDS. No Trustee shall be obligated to give
any bond, surety or other security for the performance of any of his or her duties as
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Trustee, except as otherwise determined by the Board of Trustees if necessary to protect
the Trust.
SECTION 3.17. RECITALS. Any written instrument duly creating an
obligation of the Trust shall be conclusively taken to have been executed by the Trustees,
a Trustee or an officer, employee or agent of the Trust only in his or her capacity as a
Trustee under this Agreement or in his or her capacity as an officer, employee or agent of
the Trust. Any written instrument duly creating an obligation of the Trust shall refer to
this Agreement and contain a recital to the effect that the obligations thereunder are not
personally binding upon, nor shall resort be had to the property of, any of the Trustees,
Participants, Treasurers, officers, employees or agents of the Trust; that only the Trust
Property or a specific portion thereof shall be bound; and that such written instrument
may contain any similar recital which may be deemed appropriate; provided that the
omission of any recital pursuant hereto shall not operate to impose personal liability on
any of the Trustees, Participants, Treasurers, officers, employees or agents of the Trust.
SECTION 3.18. RELIANCE ON EXPERTS. Each Trustee and officer of
the Trust shall, in the performance of his or her duties, be fully and completely justified
and protected with regard to any act or any failure to act resulting from reliance in good
faith upon the books of account or other official records of the Trust, upon an opinion of
Trust Counsel, or upon official reports made to the Trust by any of its officers or
employees or by the Investment Advisor, Administrator, Custodian, accountants,
appraisers or other experts or consultants selected with reasonable care by the Trustees or
officers of the Trust.
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ARTICLE IV
POWERS OF TRUSTEES
SECTION 4.01. GENERAL. The Trustees shall have, without other or
further authorization, full, exclusive, and absolute power, control and authority over the
Trust Property and over the affairs of the Trust to the same extent as if the Trustees were
the sole and absolute owners of the Trust Property in their own right, and with such
powers of delegation as may be permitted by this Agreement. The Trustees may do and
perform such acts and things as in their sole judgment and discretion are necessary and
proper for conducting the affairs of the Trust or promoting the interests of the Trust and
the Participants in accordance with the objectives of this Trust as set forth in this
Agreement. The Trustees shall invest the Trust Property with that degree of judgment
and care, under circumstances then prevailing, which persons of prudence, discretion and
intelligence exercise in the management of their own affairs, not for speculation but for
investment, considering the probable safety of the capital, the need for liquidity, and the
probable income to derived from such investment. The enumeration of any specific
power or authority herein shall not be construed as limiting the aforesaid general power
or authority or any other specific power or authority provided by law. The Trustees may
exercise any power authorized and granted to them by this Agreement. Such powers of
the Trustees may be exercised without any further consent of the Participants, unless
otherwise provided herein, or the necessity of any order of, or resort to, any court.
Notwithstanding any other provision hereof, the Trustees are authorized to establish more
than one Investment Fund in which the assets of the Trust are held and to establish
separate investment criteria for each Investment Fund.
SECTION 4.02. INVESTMENT FUNDS.
(A) Government Fund
(1) The initial Investment Fund established pursuant to this Agreement
shall be known as the "Government Fund." Participants shall be entitled to
redeem funds from the Government Fund upon provision of notice to the Trust not
later than the second Business Day prior to the date of redemption.
(2) The following instruments shall comprise the Permitted Investments
for the Government Fund; provided however, that Government Fund assets shall
not be invested in any instrument or instruments rated lower than A- by Standard
and Poor's and one other nationally recognized rating agency, provided that the
overall rating of the Government Fund must always be maintained at the highest
rating category (AAA or equivalent) by at least one of the three nationally
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recognized rating agencies. In the event that the two rating agencies assigned
separate ratings to a particular security, the lower of the two ratings prevail:
(a) direct obligations of the United States Treasury, Federal
agencies and instrumentalities of the United States;
(b) repurchase agreements with a term of 30 days or less that are
fully collateralized by obligations described in Section 4.02(A)(2)(a),
provided that the institution or broker transacting the repurchase agreement
shall (a) execute and perform as stated in a master repurchase agreement
and (b) take delivery of such collateral either directly or through an
authorized custodian;
(c) commercial paper rated "prime -1" by Moody's Investors
Service and "A-1" or "A-1+" by Standard and Poor's Corporation, provided
that the Government Fund shall not purchase more than 10 percent of the
outstanding principal amount of any specific issue of commercial paper;
(d) Securities and Exchange Commission registered money
market funds with the highest credit quality rating from a nationally
recognized rating agency; provided however, that the investment of
Government Fund assets in a money market mutual fund shall not exceed
one percent of the Government Fund assets unless such investment is made
(a) on an overnight basis pending investment on the next Business Day, (b)
in amounts required to pay the purchase price of an investment previously
purchased, the purchase price of which has not been paid, or (c) at the
express direction of the Investment Advisor;
(e) Asset-backed securities in fully -registered form;
(f) domestic corporate debt obligations and bonds denominated
in US Dollars and issued in the United States by foreign banks and
corporations (yankee bonds), provided that not more 2 percent of the
Government Fund shall be invested in the debt obligations of any specific
issuer.
No Permitted Investment shall mature later than five years following
its purchase; provided however, that if a Permitted Investment has a put or
reset date or trades on its average maturity, the applicable put date, reset
date, or date of average maturity or duration shall be used in lieu of the
actual maturity date; and
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(g) Taxable and non-taxable municipal securities, provided that,
on a per issue basis, the minimum issue size is $50 million and the portfolio
cannot own more than 10% of the issue.
(3) To be classified as Permitted Investments for the Government Fund,
collateralized mortgage obligations shall be part of a tranche structured to have a
projected stable average life over a wide range of interest rate movement and rate
of prepayment, as evidenced by compliance with the average life test, average life
sensitivity test and price sensitivity test promulgated by the Federal Financial
Institutional Examination Council.
Collateralized mortgage obligations shall not be classified as Permitted
Investments if they are secured by principal or interest only, or if they bear interest
at an inverse floating rate.
(4) Not less than 30 percent of the Government Fund assets shall be
invested in direct obligations of the United States Treasury, federal agencies and
instrumentalities.
(B) Short Term Liquidity Fund
(1) There is hereby established the Short Term Liquidity Fund.
Participants shall be entitled to redeem funds from the Short Term Liquidity Fund
upon provision of notice to the Trust as provided in Section 7.04 hereof.
(2) The objectives of the Short Term Liquidity Fund are a stable share
price and as high a level of current income as is consistent with preservation of
principal and liquidity.
(3) Except as otherwise provided in this Section 4.02(B), all Permitted
Investments for the Short Term Liquidity Fund must satisfy the following criteria:
(a) Such Permitted Investments must be securities eligible to be
held in an investment fund regulated and controlled by Securities and
Exchange Commission Rule 2a-7;
(b) Such Permitted Investments must have a maturity of not more
than 397 days, except for government issued and FDIC -backed floating rate
notes which must have a maturity of not more than 762 days;
(c) A minimum of 50% of such Permitted Investments must have
an A-1 + rating from Standard & Poor's Corporation and a maximum of
50% of such Permitted Investments must have an A-1 rating from Standard
& Poor's Corporation;
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(d) Except for government or agency securities, no more than 5%
of the Short Term Liquidity Fund's market value will be invested in
securities of any single issuer; and
(e) The instruments must be Fixed -Income securities.
(4) Subject to Section 4.02(B)(3) above, the following Fixed -Income
instruments shall comprise the Permitted Investments for the Short Term Liquidity
Fund:
(a) Obligations of U.S. or foreign Governments or their agencies
payable in U.S. Dollars;
(b) U.S. Dollar-denominated Corporate securities;
(c) Money-market instruments including repurchase agreements
with minimum 102% collateral of US Treasury and Agency securities only;
and
(d) Obligations of U.S. state and local entities.
(e) Notwithstanding anything to the contrary in this Section
4.02(B), investments in asset-backed and mortgage-backed securities shall
be limited to a combined maximum of 5% of the Short Term Liquidity
Fund's market value, and each asset-backed and mortgage-backed security
must have a maximum "final" maturity of 397 days and minimum credit
rating of A-1 or equivalent."
(C) Additional Investment Funds may be established by the Board. The action
creating any additional Investment Fund shall specify the applicable Permitted
Investments and redemption requirements. The Trustees shall not modify the list of
Permitted Investments or the period of advance notice required for the redemption of
Shares for any Investment Fund without (1) providing 30 day's written notice to each
Participant holding Shares in such Investment Fund and (2) permitting each Participant to
redeem its Shares in such Investment Fund
SECTION 4.03. ACQUISITION AND DISPOSITION OF ASSETS.
(A) The Trustees shall have full and complete power to establish and maintain
Investment Funds for Participants. For such consideration as they may deem proper and
as may be required by law, the Trustees shall be authorized to purchase, subscribe for,
invest in, sell, assign, transfer, exchange, distribute and otherwise deal in or dispose of
Permitted Investments and to contract for and enter into agreements with respect to the
purchase and sale of Permitted Investments.
V
(B) The Trustees shall have full and complete power to sell, exchange or
otherwise dispose of any and all Trust Property free and clear of any and all trusts and
restrictions, at public or private sale, with or without advertisement, for cash or on terms,
and subject to such restrictions, stipulations, agreements and reservations as they shall
deem proper, and to execute and deliver any deed, power, assignment, bill of sale or other
instrument in connection with the foregoing, including giving consents and making
contracts relating to Trust Property or its investment, use or disposition.
SECTION 4.04. DELEGATION. The Trustees shall have full and complete
power (consistent with their continuing exclusive authority over the management and
administration of the Trust and their duties and obligations as Trustees) to delegate from
time to time to one or more Trustees (who may be designated as a Committee of the
Trustees) or to officers, employees or agents of the Trust (including the Investment
Advisor, the Administrator, the Custodian and the Trust Counsel) such authorities, the
performance of such acts and things, the execution of such instruments either in the name
of the Trust or as their attorney or attorneys, and such other responsibilities as the
Trustees may from time to time deem expedient and appropriate in the furtherance of the
business affairs and purposes of the Trust. The provisions of this Section 4.04 shall be
deemed to permit the delegation of administrative, ministerial and operational matters,
but shall not be deemed to permit the delegation of the authority to determine policies
and procedures of the Trust.
SECTION 4.05. COLLECTION. The Trustees shall have full and complete
power: (A) to collect, sue for, receive and receipt for all sums of money or other property
due to the Trust; (B) to consent to extensions of time for payment or the renewal of any
securities, investments or obligations; (C) to engage or intervene in, prosecute, defend,
compromise, abandon, or adjust by arbitration or otherwise any actions, suits,
proceedings, disputes, claims, demands or things relating to the Trust Property; (D) to
foreclose any collateral, security or instrument securing any investment, note, bill, bond,
obligation or contract by virtue for which any sums of money are owed to the Trust; (E)
to exercise any power of sale held by them and to convey good title thereunder free of
any and all trusts, and in connection with any such foreclosure or sale, to purchase or
otherwise acquire title to any property; (F) to be parties to any reorganization and to
transfer to and deposit with any corporation, committee, voting trustee or other person
any securities, investments, or obligations of any person which form a part of the Trust
Property, for the purpose of such reorganization or otherwise; (G) to participate in any
arrangement for enforcing or protecting the interests of the Trustees as the owners or
holders of such securities, investments or obligations and to pay any assessment levied in
connection with such reorganization or arrangement; (H) to extend the time (with or
without security) for payment or delivery of any debts or property and to execute and
enter into releases, agreements, and other instruments; and (I) to pay or satisfy any debts
or claims upon any evidence that the Trustees shall deem sufficient.
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SECTION 4.06. PAYMENT OF EXPENSES. The Trustees shall have full
and complete power (A) to incur and pay Operating Expenses, Development Expenses
and Education Expenses and (B) to reimburse others for the payment thereof. The
Trustees shall fix the compensation, if any, of all officers and employees of the Trust.
The Trustees shall not be paid compensation for their general services as Trustees
hereunder but may be reimbursed for their authorized travel and other out-of-pocket
expenses reasonably incurred on behalf of the Trust. Except as set forth in Section 7.08
hereof relative to any expenses associated with defective redemption requests, Operating
Expenses, Development Expenses and Education Expenses shall be paid from earnings of
the Trust.
SECTION 4.07. BORROWING AND INDEBTEDNESS. The Trustees
shall not have the power to borrow money or incur indebtedness whether or not the
proceeds thereof are intended to be used to purchase Permitted Investments, except as a
temporary measure to facilitate withdrawal requests which might otherwise require
unscheduled dispositions of portfolio investments and only as and to the extent permitted
by law. No such indebtedness shall have a maturity later than that necessary to avoid the
unscheduled disposition of portfolio investments.
SECTION 4.08. DEPOSITS. The Trustees shall have full and complete
power to deposit, in accordance with the law, any monies or funds included in the Trust
Property and intended to be used for the payment of expenses of the Trust, with one or
more entities in the State which are eligible under the laws of the State to be a depository
for public funds, whether or not such deposits will draw interest. Such deposits are to be
sub j ect to withdrawal in such manner as the Trustees may determine, and the Trustees
shall have no responsibility for any loss which may occur by reason of the failure thereof.
With respect to such deposit, each such entity shall comply with all applicable
requirements of law.
SECTION 4.09. VALUATION. The . Trustees shall have full and complete
power to determine conclusively, in good faith, the value of any Trust Property and to
revalue the Trust Property as more specifically set forth in Article IX herein.
SECTION 4.10. FISCAL YEAR AND CHART OF ACCOUNTS. The
Trustees shall have full and complete power to determine the fiscal year of the Trust and
the method or form in which its accounts shall be kept, and from time to time to change
the fiscal year or method or form of accounts. Unless otherwise determined by the
Trustees, the fiscal year of the Trust shall commence on October 1 of each year and
terminate on September 30 of the following calendar year.
SECTION 4.11. CONCERNING THE TRUST AND AFFILIATES. The
Trust shall not enter into separate transactions with or make investments in any Affiliate
of the Trust or of any Trustee, Investment Advisor (except as otherwise permitted by
written agreement), Administrator, officer, employee or agent of the Trust; provided that
Qi
the Trust may purchase and sell Permitted Investments from and to the Custodian or and
Affiliate of the Custodian.
SECTION 4.12. INVESTMENT POLICY. The Trustees shall use their best
efforts to obtain, through the Investment Advisor or other qualified persons, a continuing
and suitable general investment policy for each Investment Fund, consistent with the
investment objectives of the Trust set forth herein. The Trustees shall be responsible for
reviewing and approving or rejecting all investment policies presented by the Investment
Advisor or such other persons.
SECTION 4.13. AGENTS AND EMPLOYEES. The Trustees shall have full
and complete power to appoint, employ, retain or contract with any person of suitable
qualification (including any corporation, partnership, trust or other entity) as the Trustees
may deem necessary or desirable for the transaction of the affairs of the Trust, including
any person or persons who, under the supervision of the Trustees, may among other
things: (A) serve as the Investment Advisor and consultant in connection with policy
decisions made by the Trustees; (B) serve as the Administrator; (C) serve as Trust
Counsel; (D) furnish reports to the Trustees and provide research, economic and
statistical data in connection with the Trust's investments; (E) act as consultants,
accountants, technical advisors, brokers, corporate fiduciaries, escrow agents,
depositories, custodians, agents for collection, insurers or insurance agents, registrars for
Shares, or in any other capacity deemed by the Trustees to be necessary or desirable; (F)
act as attorney-in-fact or agent in the purchase, sale or other disposition of investments
and in the handling, prosecution or other enforcement of any lien or security securing
investments; and (G) assist in the performance of such ministerial functions necessary in
the management of the Trust as may be agreed upon with the Trustees.
SECTION 4.14. INSURANCE. The Trustees shall have full and complete
power to purchase and pay for insurance policies or bonds insuring the Trust and the
Trustees, officers and direct employees of the Trust individually against all claims and
liabilities of every nature arising by reason of holding or having held any such office or
position or by reason of any action alleged to have been taken or omitted by the Trust or
any such person as Trustee, officer or employee, including any action taken or omitted
that may be determined to constitute negligence, whether or not the Trust would have the
power to indemnify such person against such liability.
SECTION 4.15. ANNUAL REPORTS. The Trustees, through the
Administrator, shall cause to be prepared annual financial reports of the details of the
operations of the Trust. Such Annual Report shall include: (A) a report of financial
conditions containing a statement of assets and liabilities and statements of operations
and of changes in net assets of the Trust prepared in conformity with generally accepted
accounting principles; (B) an opinion of an independent certified public accountant on
such financial statements based on an examination of the books and records of the Trust
made in accordance with generally accepted auditing standards; and (C) sufficient
21
information to establish compliance with the investment policy established pursuant to
this Agreement. A signed copy of such report and opinion shall be filed with the
Trustees within 60 days after the close of the period covered thereby. Copies of such
reports shall be mailed to all Participants. In addition, the Trustees shall furnish to the
Participants a quarterly report containing an unaudited statement of assets and liabilities
for such accounting period and statements of operations and of changes in net assets of
the Trust for the period from the beginning of the then current Fiscal Year to the end of
such current accounting period.
SECTION 4.16. PURSUIT OF REMEDIES. Notwithstanding any provision
in this Agreement, when the Trustees deem that there is a significant risk that an obligor
to the Trust may default or is in default under the terms of any obligation to the Trust, the
Trustees shall have full and complete power to pursue any remedies permitted by law
which, in their sole judgment, are in the interests of the Trust. The Trustees shall have
full and complete power to enter into any investment, settlement, compromise,
commitment or obligation on behalf of the Trust resulting from the pursuit of such
remedies as are necessary or desirable to dispose of property acquired as a result thereof.
SECTION 4.17. INFORMATION STATEMENT. The Trustees shall have
full and complete power to prepare, publish and distribute an Information Statement
regarding the Trust and to amend or supplement the same from time to time.
SECTION 4.18. TAXES. The Trustees shall have full and complete power:
(A) to pay all taxes or assessments, of whatever kind or nature, validly and lawfully
imposed upon or against the Trust or the Trustees in connection with the Trust Property,
or upon or against the Trust Property or income or any part thereof; (B) to settle and
compromise disputed tax liabilities; and (C) for the foregoing purposes to make such
returns and do all such other acts and things as may be deemed by the Trustees to be
necessary or desirable.
SECTION 4.19. RIGHTS AS HOLDERS OF TRUST PROPERTY. The
Trustees shall have full and complete power to exercise on behalf of the Participants all
of the rights, powers and privileges pertaining to the ownership of all or any Permitted
Investments or other Trust Property to the same extent that any individual might and,
without limiting the generality of the foregoing, to vote or give any consent, request or
notice, or waive any notice either in person or by proxy or power of attorney, with or
without the power of substitution, to one or more persons, whose proxies and powers of
attorney may be for meetings or actions generally, or for any particular meeting or action,
and may include the exercise of discretionary powers.
SECTION 4.20. EDUCATION AND TECHNICAL ASSISTANCE.
Pursuant to Section 9.44 hereof, the Trustees shall retain the following amounts to be
used for education and technical assistance: (A) prior to March 1, 19982 0.6666 basis
points per month on the total Trust Property in the Government Fund; (B) between March
22
1, 1998 and October 31, 1998, both dates inclusive, 0.5833 basis points per month on the
total Trust Property in the Government Fund; and (C) beginning November 1, 1998,
0.5000 basis points per month on the total Trust Property in the Government Fund,
Notwithstanding anything to the contrary herein, the Trustees shall be authorized to
modify the amounts to be retained to be used for education and technical assistance for
the Government Fund and may establish amounts to be retained to be used for education
and technical assistance for the Short Term Liquidity Fund and any other Investment
Funds established pursuant to this Agreement. The Trustees may contract only with the
County Association and the Clerk's Association for utilization of these funds, which shall
be restricted to programs related to local government education and training.
SECTION 4.21. FURTHER POWERS. To the extent permitted by law, the
Trustees shall have full and complete power to take all actions, do all matters and things,
and execute all instruments as they deem necessary, proper or desirable in order to carry
out, promote or advance the interests and purposes of the Trust, although such actions,
matters or things are not herein specifically mentioned. Any determination as to what is
in the best interest of the Trust made by the Trustees in good faith shall be conclusive. In
construing the provisions of this Agreement, the presumption shall be in favor of a grant
of power to the Trustees. The Trustees shall not be required to obtain any fin-ther consent
of the Participants, unless otherwise provided herein, or any court order to deal with the
Trust Property.
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ARTICLE V
INVESTMENT ADVISOR, ADMINISTRATOR AND
TRUST COUNSEL
SECTION 5.01. APPOINTMENT. The Trustees are responsible for the
general investment policy and program of the Trust and for the general supervision and
administration of the business and affairs of the Trust conducted by the officers, agents,
employees, investment advisors, administrators, distributors or independent contractors
of the Trust, consistent with the investment policy established in this Agreement.
However, the Trustees are not required personally to conduct all of the routine business
of the Trust and, consistent with their responsibility as stated herein, the Trustees may
appoint, employ or contract on behalf of the Trust with an Investment Advisor, an
Administrator and a Trust Counsel and may grant or delegate such authority to the
Investment Advisor, the Administrator, the Trust Counsel or to any other person as the
Trustees may, in their sole discretion, deem to be necessary or desirable for the efficient
management of the Trust.
SECTION 5.02. DUTIES OF THE INVESTMENT ADVISOR. The duties
of the Investment Advisor shall be those set forth in the Investment Advisory Agreement
to be entered into between the Trustees, on behalf of the Trust, and the Investment
Advisor. Such duties may be modified by the Trustees, from time to time, by the
amendment of the Investment Advisory Agreement. The Trustees may authorize the
Investment Advisor to effect purchases, sales or exchange of Trust Property or may
authorize any officer, employee, agent or Trustee to effect such purchases, sales or
exchanges pursuant to recommendations of the Investment Advisor, all without further
action by the Trustees subject to the Trustee's right of disapproval. Purchases, sales and
exchanges of Trust Property shall be deemed to be authorized by all the Trustees in
accordance with the provisions of this Agreement unless the Investment Advisor is
notified in writing by the Trustees to the contrary. The Investment Advisory Agreement
may authorize the Investment Advisor to employ other persons to assist it in the
performance of its duties. The Investment Advisor shall be prohibited from accepting
direct or indirect monetary or in-kind compensation from any person other than the Trust
in connection with the services provided under the Investment Advisory Agreement,
unless such compensation is immediately paid or transferred to the Trust.
SECTION 5.03. DUTIES OF THE ADMINISTRATOR. The duties of the
Administrator shall be those set forth in a agreement between the Administrator and the
Trustees, on behalf of the Trust and shall include supervision of all investment activity,
provision of accounting services, and performance of such other duties and
responsibilities as may be from time to time declared by the Trustees.
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SECTION 5.04. DUTIES OF THE TRUST COUNSEL. The duties of the
Trust Counsel shall be: (A) to construe the terms and provisions of this Agreement and
advise the Board with respect to its powers and duties thereunder; (B) review and
approve the ordinances and joinder agreements of Public Entities desiring to become
Participants; (C) attend all meetings of the Board and provide legal advise and
consultation as requested; and (D) bring, prosecute, appear in, or defend, all on behalf of
the Trust and in the name of the Trust any suit or administrative proceeding, for the
enforcement of or arising out of or with respect to this Agreement.
SECTION 5.05. SUCCESSORS. If, at any time, the position of Investment
Advisor, Administrator or Trust Counsel shall become vacant for any reason, the Trustees
may appoint, employ or contract with a successor. Nothing herein shall be construed to
prohibit the Trust from performing the duties of the Administrator through its own direct
employees.
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ARTICLE VI
CUSTODIAN
SECTION 6.01. QUALIFICATIONS. The Trustees, on behalf of the Trust,
shall employ a bank or trust company organized under the laws of the United States of
America as Custodian with authority as its agent, but subject to such restrictions,
limitations and other requirements, if any, as may be established by the Trustees to
perform to duties set forth in the Custodian Agreement to be entered into between the
Trust and the Custodian. Such Custodian shall be a qualified "depository" as defined by
Chapter 280, Florida Statutes, and shall invest all Trust Property in accordance therewith
and in accordance with the objectives of this Trust.
SECTION 6.02. SUCCESSORS. In the event that, at any time, the Custodian
shall resign or shall be terminated pursuant to the provisions of the Custodian Agreement,
the Trustees shall appoint a successor thereto.
SECTION 6.03. PROHIBITED TRANSACTIONS. With respect to
transactions involving Trust Property, the Custodian shall act strictly as agent for the
Trust. The Trustees shall not purchase Permitted Investments from the Custodian or sell
Permitted Investments to the Custodian.
ARTICLE VII
INTEREST OF PARTICIPANTS
SECTION 7.01. GENERAL. The beneficial interest of the Participants in any
Investment Fund and the earnings thereon shall, for convenience of reference, be divided
into Shares which shall be used as units to measure the proportionate allocation to the
respective Participants. The number of Shares that may be used to measure and represent
the proportionate allocation of beneficial interest among the Participants in any
Investment Fund is unlimited. All Shares in an Investment Fund shall be of one class
representing equal distribution, liquidation and other rights. The beneficial interest
hereunder measured by the Shares shall not entitle a Participant to preference,
preemptive, appraisal, conversion or exchange rights of any kind with respect to the Trust
or the Trust Property. Title to the Trust Property of every description and the right to
conduct all affairs of the Trust are vested in the Trustees on behalf, and for the beneficial
interest of, the Participants. The Participants shall have no interest therein other than the
beneficial interest conferred hereby and measured by their Shares, and they shall have no
right to call for any partition or division of any property, profits, rights or interests of the
Trust.
SECTION 7.02. INVESTMENTS. Upon compliance with the procedures
established by the Administrator and the Custodian, a Public Entity who has become a
Participant in accordance with Section 2.03 hereof shall be entitled to invest in any
Investment Fund. Participants may invest in more than one Investment Fund and may
establish more than one account within a single Investment Fund. With respect to the
Government Fund, the Participant shall notify the Trust of its intention to make an
investment in an Investment Fund not less than one Business Day prior to the Transaction
Execution Date. With respect to the Short Term Liquidity Fund, investment funds
received before 11:00 am Eastern Time on a Business Day shall be invested on the same
Business Day and investment funds received after 11:00 am Eastern Time may be
invested on the next Business Day. With respect to any investment, Shares shall be
allocated to the investing Participant by dividing the amount invested by the Share Value
for the Investment Fund as of the Transaction Valuation Date. Investments may be made
in fractional Shares.
SECTION 7.03. EVIDENCE OF PARTICIPANT SHARES. Evidence of
the number of each Participant's Shares shall be reflected in the Share Register for each
Investment Fund maintained by or on behalf of the Trust pursuant to Section 8.01 hereof.
The Trust shall not issue certificates as evidence of Shares held.
SECTION 7.04. REDEMPTIONS. Payments by the Trust to Participants and
the reduction of Shares resulting therefrom are, for convenience, referred to in this
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Agreement as "redemptions". Any and all allocated Shares may be redeemed at the
option of the Participant whose beneficial interest hereunder is measured by such Shares,
upon and subject to the terms, conditions and advance notice requirements promulgated
by the Trustees upon the establishment of each Investment Fund. The Trust shall, upon
application of any Participant and in accordance with the redemption requirements
established by the Trustees, redeem Shares from any Investment Fund. The Participant
shall notify the Trust of its intention to make a redemption from an Investment Fund in
accordance with the redemption requirements established by the Trustees. With respect
to the Government Fund, such notice shall in no event be less than two Business Days
prior to the Transaction Execution Date. With respect to the Short Term Liquidity Fund,
such notice received before 11:00 am Eastern Time on a Business Day shall be fulfilled
on the same Business Day and notices of redemption received after 11:00 am Eastern
Time on a Business Day may be fulfilled on the next Business Day. On the Transaction
Execution Date, Shares shall be redeemed at the Share Value for the Investment Fund as
of the Transaction Valuation Date. The procedures for effecting redemption shall be as
adopted by the Trustees. The Trustees may establish (A) penalties for early redemption
of Shares; (B) procedures for resolving other contingencies which may jeopardize the
earnings potential of the Trust; and (C) procedures for the prompt payment of the
principal of any account at any time. Redemptions may be made in fractional Shares.
SECTION 7.05. SUSPENSION OF REDEMPTION OR PAYMENT. Each
Participant, by its adoption of this Agreement, agrees that the Trustees may, without the
necessity of a formal meeting of the Trustees, temporarily suspend the right of
redemption or postpone the date of payment for redeemed Shares for the whole or any
part of any period (A) during which there shall have occurred any state of war, national
emergency, banking moratorium or suspension of payments by banks in the State or any
general suspension of payments by banks in the State or any general suspension of
trading or limitation of prices on the New York or American Stock Exchange (other than
customary weekend and holiday closing); or (B) during which any situation exists as a
result of which disposal by the Trust of Trust Property is not reasonably practicable
because of the substantial losses which might be incurred or if it is not reasonably
practicable for the Trust at any time to determine fairly the Share Value. Such
suspension or postponement shall not alter or affect a Participant's beneficial interest
hereunder as measured by its Shares or the accrued interest and earnings thereon. Such
suspension or payment shall take effect at such time as the Trustees shall specify but not
later than the close of business on the Business Day next following the declaration of
suspension, and thereafter there shall be no right of redemption or payment until the
Trustees shall declare the suspension or postponement at an end, except that the
suspension or postponement shall terminate in any event on the first day on which the
period specified in the clauses (A) or (B) above shall have expires (as to which the
determination of the Trustees shall be conclusive). In the case of a suspension of the
right of redemption or a postponement of payment for redeemed Shares, a Participant
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may either withdraw its request for redemption or receive payment based on the Share
Value existing after the termination of the suspension.
SECTION 7.06. MINIMUM INVESTMENT. Initially, and until changed by
action of the Trustees, there shall be a five thousand dollar ($5,000.00) minimum total
investment for each Participant. If the Trustees create a minimum total investment in an
amount greater than the investment of any Participant at the time that such change
becomes effective, the investment of such Participant shall not be redeemed without such
Participant's consent.
SECTION 7.07. MINIMUM REDEMPTION. There shall be a minimum of
one share which may be redeemed at any one time at the option of a Participant.
SECTION 7.08. DEFECTIVE REDEMPTION REQUESTS. If a
Participant submits a request for the redemption of a greater number of Shares than are
then allocated to such Participant, such requests shall not be honored. Each Participant,
by its adoption of this Agreement, agrees that the Trustees shall have full and complete
power to redeem an amount of the Shares allocated to such Participant at a redemption
price determined in accordance with Section 7.04 hereof sufficient to reimburse the Trust
for any fees, expenses, costs or penalties actually incurred by the Trust as a result of such
defective redemption request.
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ARTICLE VIII
RECORD OF SHARES
SECTION 8.01. SHARE REGISTER. A Share Register for each Investment
Fund shall be kept by or on behalf of the Trustees, under the direction of the Trustees,
and shall contain (A) the names and addresses of the Participants, (B) the number of
Shares representing their respective beneficial interests hereunder, and (C) a record of all
allocations and redemptions thereof. Such Share Registers shall be conclusive as to the
identity of the Participants to which the Shares are allocated. Only Participants whose
allocation of Shares is recorded on such Share Registers shall be entitled to receive
distributions with respect to Shares or otherwise to exercise or enjoy the rights and
benefits related to the beneficial interest hereunder represented by the Shares. No
Participant shall be entitled to receive any distribution, nor to have notices given to it as
herein provided, until it has given its appropriate address to such officer or agent of the
Trust as designated to keep the Share Registers.
SECTION 8.02. REGISTRAR. The Trustees shall have full and complete
power to employ a registrar. Unless otherwise determined by the Trustees, the Share
Registers shall be kept by the Administrator. The registrar shall record the original
allocations of Shares in the Share Registers and shall perform the duties usually
performed by registrars of certificates and shares of stock in a corporation except as such
duties may be modified by the Trustees from time to time.
SECTION 8.03. OWNER OF RECORD. No person becoming entitled to
any Shares as a consequence of the merger, reorganization, consolidation, bankruptcy or
insolvency of any Participant or otherwise by operation of law shall be recorded as the
Participant to which such Shares are allocated, unless such person is an entity qualified to
participate in the Trust, in which event such person shall be substituted for the previous
person upon proper application. Such person shall become entitled to the redemption
value of such Shares. Such qualified person may then be designated as the Participant of
record to which such Shares are allocated. Persons not qualified as Participants who
become entitled to Shares and do not promptly request redemption thereof may be
requested by the Trustees to present proof of entitlement and shall be required to redeem
such Shares. The Trust shall not be bound by any notice of merger, reorganization,
consolidation, bankruptcy, insolvency, or other such event, unless the Shares are
transferred in accordance with the provisions of the Trust.
SECTION 8.04. NO TRANSFER OF SHARES. Except as provided for in
Section 8.03 hereof, the beneficial interests measured by the Shares shall not be
transferable, in whole or in part, other than to the Trust itself for purposes of redemption;
provided that Shares may be redeemed from one Participant's account and the proceeds
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deposited directly into another Participant's account upon instructions from the
authorized representatives of the respective Participants.
SECTION 8.05. LIMITATION OF FIDUCIARY RESPONSIBILITY.
The Trustees shall not, nor shall the Participants or any officer, registrar or other agent of
the Trust, be bound to determine the existence of any trust, express, implied, or
constructive, or of any charge, pledge or equity to which any of the Shares or any interest
therein are subject, or to ascertain or inquire whether any redemption of any such Shares
by any Participant or its representatives is authorized by such trust, charge, pledge or
equity, or to recognize any person as having any interest therein, except the Participant
recorded as the Participant to which such Shares are allocated. The receipt of monies by
the Participant in whose name any Share is recorded or by the duly authorized agent of
such Participant shall be a sufficient discharge for all monies payable or deliverable in
respect of such Shares and from all responsibility to see to the proper application thereof.
SECTION 8.06. NOTICES. Any and all notices to which any Participant
hereunder may be entitled and any and all communications shall be deemed duly served
or given if delivered, transmitted or mailed, postage prepaid, addressed to such
Participant of record at its address or facsimile transmission telephone number as
recorded on the Share Register. Any notice shall be deemed given on the date such
notice is delivered by hand or facsimile transmission or three days after the date mailed.
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ARTICLE IX
VALUATION OF INVESTMENT FUNDS
SECTION 9.01. ASSET VALUATION.
(A) As of the close of business on each Business Day, the investments of the
Government Fund shall be valued by the Trustees, using such consistent method or basis
of valuation and based upon such sources of information as will, in the Trustees' opinion,
result in the fair and equitable valuation of the Government Fund and its assets. The
investments of the Short Term Liquidity Fund shall be valued by the Trustees weekly,
using such consistent method or basis of valuation and based upon such sources of
information as will, in the Trustees' opinion, result in the fair and equitable valuation of
the Short Term Liquidity Fund and its assets. The Trustees, insofar as practicable, shall
utilize the following basic guidelines:
(1) The value of each security listed on generally recognized securities
exchanges shall be the last sales price as reported by such exchanges on the date of
valuation. Where a security is traded on more than one securities exchange, the
Trustees may designate that one exchange will be used as the basis of valuations.
If no sale has been so reported, the average of the bid and asked price for the date
of valuation shall be used, unless in the Trustees' opinion, use of the last reported
sale or the last reported bid as reported by such exchanges, whichever is more
recent, would more truly reflect the value of such security. If neither a sale nor a
bid and asked price has been reported for the date of valuation, then the most
recent sales price shall be used.
(2) Non -listed securities shall be valued by taking the most recent
published bid as of the date of valuation obtained with the Trustees' approval, from
one or more reputable brokers, dealers, investment bankers or pricing or quotation
services that regularly deal in or that determine and quote the value of the security
being valued or by reference to a valuation supplied by a generally accepted
pricing or quotation service. Alternatively, if the Trustees determine that the
average of the reported bid and asked prices, if such are reported for the date of
valuation, would more truly reflect the value of such security, then such average
shall be used. Should no bid and asked prices have been reported for the date of
valuation, the last reported sale value shall be used unless, in the Trustees'
judgment, the most recent bid price would more truly reflect the value of such
security.
(3) The value of marketable United States Government or government
agency obligations shall be the most recent published bid as of the date of
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valuation obtained from one or more recognized dealers regularly dealing in such
securities.
(4) The value of any other investment shall be the market value thereof
as determined by the Trustees as of the date of valuation. In determining such
market value, the Trustees may obtain and consider: quotations furnished by
reputable sources, such as pricing or quotation services, security dealers, brokers
or investment bankers; values of comparable property; appraisals; or such other
information as the Trustees deem pertinent.
(5) An investment purchased, the purchase price of which has not been
paid, shall be included for valuation purposes as a security held, and the cash or
any cash equivalents shall be adjusted by deducting the purchase price, including
brokers' commissions and other expenses. Brokers' commissions and other
expenses which may be incurred on future sales shall not be considered in valuing
an Investment Fund.
(6) If, in the opinion of the Trustees, the valuations obtained by the
foregoing methods do not fairly indicate the actual market value of an investment,
or no reliable data is available, the Trustees shall obtain and use quotations
furnished by one or more reputable brokers or investment bankers or, as a basis for
such valuation, such other pertinent information, or such other method of
valuation, as may, in their judgment, be necessary to determine the value as of the
date of valuation. For the purposes of this Section 9.01(B)(6), information
reported (a) in newspapers of general circulation, or in New York City, (b) in
standard financial publications or periodicals, (c) in the records of any recognized
security exchange, (d) statistical or valuation services, or (e) any one or more of
such sources may be selected by the Trustees, noted in the records of the Trust,
and shall be accepted as evidence thereof.
(B) Valuation of the investments in any Investment Fund may be delegated by
the Trustees to the Investment Advisor, the Administrator, the Custodian or such other
person as the Trustees may designate by resolution or agreement.
SECTION 9.02. COMPUTATION OF NET ASSET VALUE.
(A) To the aggregate value of investments determined in the manner required
by Section 9.01, there shall be added (1) any cash or cash equivalents, adjusted as
required by Section 9.01(A)(5) and (2) any other amounts properly allocable to the
Investment Fund. From the total so obtained there shall be deducted all charges, reserves
and liabilities due, accrued or anticipated, as described in Section 9.04, which are
properly chargeable to the Investment Fund. The net amount remaining shall be deemed
to be the Net Asset Value of the Investment Fund as of the date of valuation.
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(B) Computation of the Net Asset Value of any Investment Fund may be
delegated by the Trustees to the Investment Advisor, the Administrator, the Custodian or
such other person as the Trustees may designate by resolution or agreement.
SECTION 9.03. COMPUTATION OF SHARE VALUE.
(A) At the inception of any Investment Fund, the Share Value shall be deemed
to be ten dollars ($10.00), unless the Trustees shall, in the records of the Trust, specify a
different value therefor. The Share Value on any date of valuation shall be computed by
dividing the Net Asset Value of the Investment Fund by the number of Shares into which
the Investment Fund is then divided; provided however, that fractions of a cent per Share
may be omitted.
(B) Computation of the Share Value of any Investment Fund may be delegated
by the Trustees to the Investment Advisor, the Administrator, the Custodian or such other
person as the Trustees may designate by resolution or agreement.
SECTION 9.04. EXPENSES, RETAINED EARNINGS AND RESERVES.
The Trustees shall retain first from earnings and profits of the each Investment Fund and,
to the extent those funds are not sufficient, from the assets of each Investment Fund, such
amount as they may deem necessary (A) to pay any debts of the Trust properly allocable
to such Investment Fund and (B) to pay that portion of the Operating Expenses of the
Trust properly allocable to such Investment Fund. In addition, the Trustees shall retain
for the payment of Development Expenses and Education Expenses the amounts
described in Section 4.20 herein. The Trustees shall also have the power to establish
from earnings and profits such reasonable reserves as they believe may be required to
protect the Trust and the Participants against contingent liabilities.
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ARTICLE X
AMENDMENT OR TERMINATION OF TRUST;
DURATION OF TRUST
SECTION 10.01. AMENDMENTS. The provisions of this Agreement may be
amended or altered at any meeting of the Board of Trustees or pursuant to any vote of the
Board called for that purpose. No such amendment shall become effective prior to (1)
providing 30 day's written notice to each Participant holding Shares in any Investment
Fund and (2) permitting each Participant to redeem its Shares in such Investment Fund.
SECTION 10.02. TERMINATION.
(A) The Trust or any Investment Fund may be terminated at any meeting of the
Board of Trustees. The Trust shall also be terminated if either the County Association or
the Clerks Association (1) notifies the Trust in writing that it will no longer appoint
Trustees or (2) fails to appoint a replacement Trustee within 90 days after notification of
any vacancy.
(B) The termination of the Trust or any Investment Fund shall not (1) change
any rights with respect to any allocated Shares of a terminated Investment Fund by
reducing the amount payable thereon upon liquidation, except with the vote or written
consent of 100 percent of the Participants in such Investment Fund; (2) change the
limitations on personal liability of the Participants and the Trustees; and (3) change the
prohibition of assessments against Participants.
(C) Upon the termination of the Trust: (1) the Trust shall carry on no business,
except for the purpose of winding up its affairs; (2) the Trustees shall proceed to wind up
the affairs of the Trust, and pursuant thereto all of the powers of the Trustees under this
Agreement shall continue until the affairs of the Trust shall have been concluded,
including but not limited to the power to fulfill or discharge the contracts of the Trust, to
collect Trust assets, sell, convey, assign, exchange, transfer or otherwise dispose of all or
any part of the remaining Trust Property to one or more persons at public or private sale
for consideration which may consist in whole or in part of cash, securities or other
property of any kind, to discharge or pay Trust liabilities, and to do all other acts
appropriate to liquidate Trust affairs; and (3) after paying or adequately providing for the
payment of all liabilities, and upon receipt of such releases, indemnities and refunding
agreement as they deem necessary for the Trust's protection, the Trustees may distribute
the remaining Trust Property, in cash or in kind or partly in each, among the Participants
according to their respective proportionate allocation of Shares.
35
(D) Upon termination of the Trust and distribution to the Participants as herein
provided, a majority of the Trustees shall execute and lodge among the records of the
Trust an instrument in writing setting forth the fact of such termination, and the Trustees
shall thereupon be discharged from all further liabilities and duties hereunder, and the
right, title and interest of all Participants shall cease and be canceled and discharged.
SECTION 10.03. DURATION. The Trust shall continue in existence in
perpetuity, subject in all respects to the provisions of this Article X.
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ARTICLE XI
MISCELLANEOUS
SECTION 11.01. GOVERNING LAW. This Agreement is executed by the
Initial Participants and delivered in the State and with reference to the laws thereof, and
the rights of all parties and the validity, construction and effect of every provision hereof
shall be subject to and construed according to the laws of the State.
SECTION 11.02. COUNTERPARTS. This Agreement may be executed in
several counterparts, each of which when so executed shall be deemed to be an original,
and such counterparts shall constitute but one and the same instrument, which shall be
sufficiently evidenced by any such original counterpart.
SECTION 11.03. RELIANCE BY THIRD PARTIES. Any certificate by an
individual who, according to the records of the Trust, or of any official or public body or
office in which this Agreement may be recorded, appears to be a Trustee hereunder or the
Chairman of the Trust, certifying to: (A) the number or identity of Trustees or
Participants; (B) the due authorization of the execution of any instrument or writing; (C)
the form of any vote passed at a meeting of the Trustees; (D) the fact that the number of
Trustees or Participants present at any meeting or executing any written instrument
satisfies the requirements of this Agreement; (E) the form of any by-laws adopted by or
the identity of any officers elected by the Trustees; or (F) existence of any fact or facts
which in any manner relate to the affairs of the Trust, shall be conclusive evidence as to
the matters so certified in favor of any person dealing with the Trustees or any of them or
the Trust and the successors of such person.
SECTION 11.04. PROVISIONS IN CONFLICT WITH LAW. The
provisions of this Agreement are severable. If the Trustees shall determine, with the
advise of its counsel, that any one or more of such provisions (the "conflicting
provisions") are in conflict with applicable federal or State laws, the conflicting
provisions shall be deemed never to have constituted a part of this Agreement; provided
that such determination by the Trustees shall not affect or impair any of the remaining
provisions of this Agreement or render invalid or improper any action taken or omitted
(including but not limited to the election of Trustees) prior to such determination.
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