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2019 CON Phase II Systems DBA Public Agency Retirement Services - Comprehensive Trust Administration Services
FIRST AMENDMENT TO THE AGREEMENT BETWEEN THE CITY OF NATIONAL CITY AND PHASE II SYSTEMS D.B.A. "PUBLIC AGENCY RETIREMENT SERVICES" This First Amendment to the Agreement is entered into this 17th day of September, 2019 between the City of National City, a municipal corporation (the "CITY"), and PHASE II SYSTEMS, a California corporation, d.b.a. "Public Agency Retirement Services" (the "CONSULTANT"). RECITALS WHEREAS, the CITY and CONSULTANT entered into an agreement on December 20, 2017 (the "Agreement") wherein the CONSULTANT agreed to provide comprehensive trust administration services for the CITY'S irrevocable supplemental pension trust (the "Pension Trust"); and WHEREAS, the parties desire to amend the Agreement to increase the scope of work to include comprehensive trust administration services for the CITY'S irrevocable other post - employment benefits trust (the "OPEB Trust"), as set forth in attached Exhibit "A." NOW, THEREFORE, the parties hereto agree that the Agreement entered into on December 20, 2017 shall be amended as follows: 1. The Scope of Services, described in Section 3 of the Agreement, shall be increased to include comprehensive trust administration services for the "OPEB Trust," as set forth in attached Exhibit "A." 2. CONSULTANT shall be compensated for performance on the increased Scope of Services as set forth in attached Exhibit "B." 3. CONSULTANT shall perform those increased Scope of Services after receiving from CITY the requested Data Requirement Information set forth in attached Exhibit "C." 4. The parties further agree that, except for item 1 above, each and every term and provision of the Agreement dated December 20, 2017 shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to the Agreement on the date and year first above written. [Signature Page to Follow] CITY OF NATIONAL CITY By: APPROVED AS TO FORM: Angil P. Morris -Jones Citrney By: Roberto M. Contreras Deputy City Attorney PHASE II SYSTEMS, A CALIFORNIA CORPORATION D.B.A. "PUBLIC AGENCY RETIREMENT SERVICES" By: Daniel C. Jo By: n, President Tod Hammeras, Chief Financial Officer First Amendment to Dec. 2017 Agreement Page 2 of 2 City of National City and September 17, 2019 Phase II Systems d.b.a. "PARS" EXHIBIT A PUBLIC AGENCY RETIREMENT SERVICES SCOPE OF SERVICES The CONSULTANT will provide the following services for the City of National City's irrevocable supplemental pension trust plan ("Pension Trust Plan") and irrevocable other post - employment benefits trust plan ("OPEB Trust Plan"): 1. Plan Installation Services: A. Meeting with appropriate CITY personnel to discuss Pension Trust Plan and OPEB Trust Plan provisions, implementation timelines, the actuarial valuation process, funding strategies, benefit communication strategies, data reporting, and submission requirements for contributions, reimbursements, and distributions; B. Providing necessary analysis and advisory services to finalize the elements of Paragraph 1(A) of this Exhibit A; C. Providing all documents needed to create the Pension Trust Plan and OPEB Trust Plan for review and approval by the City Attorney. Resulting final Pension Trust Plan and OPEB Trust Plan documents must be approved by the CITY before the commencement of Plan Administration Services outlined in Paragraph 2 below. 2. Plan Administration Services: A. Monitoring the receipt of Pension Trust Plan and OPEB Trust Plan contributions made by the CITY to the trustee of the Pension Trust and the OPEB Trust ("Trustee"), based upon information received from the CITY and the Trustee; B. Performing periodic accounting of Pension Trust Plan and OPEB Trust Plan assets, reimbursements/distributions, and investment activities, based upon information received from the CITY and/or Trustee; C. Coordinating the processing of distribution payments pursuant to authorized direction by the CITY, and the provisions of the Pension Trust Plan and the OPEB Trust Plan, and, to the extent possible, based upon CITY -provided Data; D. Coordinating actions with the Trustee as directed by the Plan Administrator within the scope the Agreement; E. Preparing and submitting monthly reports of Pension Trust Plan and OPEB Trust Plan activities to the CITY, unless directed by the CITY otherwise; F. Conducting annual in -person client reviews to provide full administrative and investment reviews of the Pension Trust Plan and the OPEB Trust Plan and to ensure the CITY'S ongoing satisfaction with its participation in the Pension Trust Plan and the OPEB Trust Plan. G. Conducting in -person or over -the -phone meetings more frequently, if requested by the Page 1 of 2 CITY. H. Providing annual updates of the Pension Trust Plan and the OPEB Trust Plan to the City Council during one of its public meetings, if requested by the CITY. I. Preparing and submitting annual reports of Pension Trust Plan and OPEB Trust Plan activities to the CITY; J. Facilitating actuarial valuation updates and funding modifications for compliance with GASB 45/75 and other GASB Statements, as applicable, for OPEB obligations; K. Coordinating periodic audits of the Pension Trust Plan and the OPEB Trust Plan, as requested by CITY; L. Monitoring Pension Trust Plan, Pension Trust, OPEB Trust Plan, and OPEB Trust compliance with federal and state laws. 3. The CITY acknowledges that PARS is not licensed to provide, and does not offer tax, accounting, legal, investment, or actuarial advice. Page 2 of 2 EXHIBIT B PUBLIC AGENCY RETIREMENT SERVICES RATES TO PERFORM POST -EMPLOYMENT BENEFITS TRUST ADMINISTRATION SERVICES CONSULTANT will be compensated for performance of Services, as described in Exhibit "A" based upon the following schedule: ANNUAL ASSET FEE For Total Plan Asset Balances from $0 to $10,000,000 $10,000,001 to $15,000,000 $15,000,001 to $50,000,000 $50,000,001 and above Annual Rate 0.25% 0.20% 0.15% 0.10% Annual Rates are prorated and paid monthly. The annual asset fee shall be calculated by the following formula: Annual Rate divided by 12 (months of the year) multiplied by the combined asset balances of the post -employment benefits trust plans at the end of the month. TRUSTEE & INVESTMENT MANAGEMENT FEES Trustee and investment management fees are not included in the annual asset fees stated above. Trustee and investment management services are provided under a separate agreement with US Bank, and trustee and investment management fees are paid to US Bank. These fees include investment policy development, asset allocation recommendations, asset management, and all custodial services and are based upon the following schedule: For Total Plan Asset Balances from $0 to $5,000,000 $5,000,001 to $10,000,000 $10,000,001 to $15,000,000 $15,000,001 to $50,000,000 $50,000,001 and above Annual Rate 0.35% 0.25% 0.20% 0.15% 0.10% Annual Rates are prorated and paid monthly. Annual trustee and investment management fees shall be calculated by the following formula: Annual Rate divided by 12 (months of the year) multiplied by the combined asset balances of the post -employment benefits trust plans at the end of the month. Both the annual asset fees and trustee and investment management fees shall be deducted from post -employment benefits trust plans' assets. Page 1 of 1 EXHIBIT C PUBLIC AGENCY RETIREMENT SERVICES DATA REQUIREMENTS CONSULTANT will provide all services required under the Agreement, and the increased Scope of Services described in Exhibit "A", upon receiving the following information: 1. Executed legal documents: A. certified resolutions B. adoption agreements to the Plan C. trustee investment forms 2. Contribution — completed Contribution Transmittal Form signed by the Plan Administrator (or authorized designee) which contains the following information: A. agency name B. contribution amounts C. contribution dates D. contribution method (check, ACH, wire) 3. Distribution — completed Transfer/Payment/Reimbursement Form signed by the Plan Administrator (or authorized designee) which contains the following information: A. agency name B. payment reimbursement/distribution amounts C. applicable statement dates D. copy of applicable premium, claim, statement, warrant, and/or administrative expense evidencing payments E. signed certifications of reimbursements/distributions from the Plan Administrator (or authorized designee) 4. Other information pertinent to the CONSULTANT'S services as reasonably requested by the CONSULTANT and the CITY'S actuarial provider. Page 1 of 1 ACORO® CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) 7/29/2019 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER Risk Strategies Company 2040 Main Street, Suite 450 Irvine, CA 92614 www.risk-strategies.com CA DOI License No. 0F06675 CONTACT NAME: PHONE (A/C. No. Ext): E-MAIL ADDRESS: Risk Strategies Company 949 242-9240 syoung@risk-strategies.com INSURER(S) AFFORDING COVERAGE INSURER A : Sentinel Insurance Co. INSURED Phase II Systems dba: PARS 4350 Von Karman Ave., Ste 100 Newport Beach CA 92660 INSURER B : INSURER C : INSURER D : FAX (A/C, No): Travelers Property Casualty Co of America Indian Harbor Insurance Company INSURER E : INSURER F : NAIC # 11000 25674 36940 COVERAGES CERTIFICATE NUMBER: 50219030 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE ADDL INSD SUBR WVD POLICY NUMBER POLICY EFF (MM/DD/YYYY) POLICY EXP IMM/DD/YYYY) LIMITS A / COMMERCIAL GENERAL LIABILITY WI OCCUR 1 1 72SBAAC2429 5/8/2019 5/8/2020 EACH OCCURRENCE $ $2,000,000 CLAIMS -MADE DAMAGE TO RETE PREMISES (Ea occur ence) $ $1,000,000 MED EXP (Any one person) $ $10,000 GEM_ PERSONAL 8 ADV INJURY $ $2,000,000 AGGREGATE LIMIT APPLIES -- PER: GENERAL AGGREGATE $ $4,000,000 LOC PRODUCTS - COMP/OP AGG $ $4,000,000 S OTHER: A AUTOMOBILE ✓ LIABILITY ANY AUTO OWNED ✓ SCHEDULED AUTOS NON -OWNED AUTOS ONLY 72SBAAC2429 5/8/2019 5/8/2020 1Ea B INEDtSINGLE LIMIT S $2,000.000 S S BODILY INJURY (Per person) BODILY INJURY (Per acddent) PROPERTY DAMAGE (Per accident) S S UMBRELLA LIAB EXCESS LIAB DED I RETENTION$ OCCUR CLAIMS -MADE EACH OCCURRENCE S AGGREGATE 5 S B WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANYPROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? (Mandatory in NH) If yes, describe under DESCRIPTION OF OPERATIONS Y / N NIA 1 UB2J193983 6/1/2019 6/1/2020 PER OTH- / STATUTE I ER E.L. EACH ACCIDENT $ $1 ,000,000 E.L. DISEASE - EA EMPLOYEE $ $1 .000.000 below E.L. DISEASE - POLICY LIMIT $ $1 ,000,000 C Professional Liability MPP9039279 7/30/2019 7/30/2020 Per Claim: $2,000,000 Aggregate: $2,000,000 DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) Projects as on file with the insured including but not limited to: Trust administration services related to the Public Agencies Post -Employment Benefits Trust. The City of National City, its officers, employees, volunteers and agents are named as additional insureds and primary/non-contributory clause applies to the general liability policy and a waiver of subrogation applies to the general liability and work comp policies -see attached endorsements. CERTIFICATE HOLDER CANCELLATION City of National City c/o Risk Manager 1243 National City Blvd. National City CA 91950-4397 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE Michael Christian ACORD 25 (2016/03) © 1988-2015 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD 50219030 119-20 CA GL-HNOA-WC-PL 1 Sherry Young 17/29/2019 11.37:02 AM (PDT) I Page 1 of 13 72SBAAC2429 BUSINESS LIABILITY COVERAGE FORM 2. Applicable To Medical Expenses Coverage We will not pay expenses for "bodily injury": a. Any Insured To any insured, except "volunteer workers". b. Hired Person To a person hired to do work for or on behalf of any insured or a tenant of any insured. c. Injury On Normally Occupied Premises To a person injured on that part of premises you own or rent that the person normally occupies. d. Workers' Compensation And Similar Laws To a person, whether or not an "employee" of any insured, if benefits for the "bodily injury" are payable or must be provided under a workers' compensation or disability benefits law or a similar law. e. Athletics Activities To a person injured while practicing, instructing or participating in any physical exercises or games, sports or athletic contests. f. Products -Completed Operations Hazard Included with the "products -completed operations hazard". Business Liability Exclusions Excluded under Business Liability Coverage. C. WHO IS AN INSURED 1. If you are designated in the Declarations as: a. An individual, you and your spouse are insureds, but only with respect to the conduct of a business of which you are the sole owner. b. A partnership or joint venture, you are an insured. Your members, your partners, and their spouses are also insureds, but only with respect to the conduct of your business. c. A limited liability company, you are an insured. Your members are also insureds, but only with respect to the conduct of your business. Your managers are insureds, but only with respect to their duties as your managers. d. An organization other than a partnership, joint venture or limited liability company, you are an insured. Your "executive officers" and directors are insureds, but only with respect to their duties as your officers or directors. Your stockholders are also insureds, but only with respect to their liability as stockholders. g. e. A trust, you are an insured. Your trustees are also insureds, but only with respect to their duties as trustees. 2. Each of the following is also an insured: a. Employees And Volunteer Workers Your "volunteer workers" only while performing duties related to the conduct of your business, or your "employees", other than either your "executive officers" (if you are an organization other than a partnership, joint venture or limited liability company) or your managers (if you are a limited liability company), but only for acts within the scope of their employment by you or while performing duties related to the conduct of your business. However, none of these "employees" or "volunteer workers" are insureds for: (1) "Bodily injury" or "personal and advertising injury": (a) To you, to your partners or members (if you are a partnership or joint venture), to your members (if you are a limited liability company), or to a co -"employee" while in the course of his or her employment or performing duties related to the conduct of your business, or to your other "volunteer workers" while performing duties related to the conduct of your business; (b) To the spouse, child, parent, brother or sister of that co - "employee" or that "volunteer worker" as a consequence of Paragraph (1)(a) above; (c) For which there is any obligation to share damages with or repay someone else who must pay damages because of the injury described in Paragraphs (1)(a) or (b) above; or (d) Arising out of his or her providing or failing to provide professional health care services. If you are not in the business of providing professional health care services, Paragraph (d) does not apply to any nurse, emergency medical technician or paramedic employed by you to provide such services. (2) "Property damage" to property: (a) Owned, occupied or used by, Page 10 of 24 50219030 119-20 CA GL-HNOA-WC-PL I Sherry Young 17/29/2019 11:37:02 AM (PDT) I Page 2 of 13 Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM (b) Rented to, in the care, custody or control of, or over which physical control is being exercised for any purpose by you, any of your "employees", "volunteer workers", any partner or member (if you are a partnership or joint venture), or any member (if you are a limited liability company). b. Real Estate Manager Any person (other than your "employee" or "volunteer worker"), or any organization while acting as your real estate manager. c. Temporary Custodians Of Your Property Any person or organization having proper temporary custody of your property if you die, but only: (1) With respect to liability arising out of the maintenance or use of that property; and (2) Until your legal representative has been appointed. d. Legal Representative If You Die Your legal representative if you die, but only with respect to duties as such. That representative will have all your rights and duties under this insurance. e. Unnamed Subsidiary Any subsidiary and subsidiary thereof, of yours which is a legally incorporated entity of which you own a financial interest of more than 50% of the voting stock on the effective date of this Coverage Part. The insurance afforded herein for any subsidiary not shown in the Declarations as a named insured does not apply to injury or damage with respect to which an insured under this insurance is also an insured under another policy or would be an insured under such policy but for its termination or upon the exhaustion of its limits of insurance. 3. Newly Acquired Or Formed Organization Any organization you newly acquire or form, other than a partnership, joint venture or limited liability company, and over which you maintain financial interest of more than 50D/D of the voting stock, will qualify as a Named Insured if there is no other similar insurance available to that organization. However: a. Coverage under this provision is afforded only until the 180th day after you acquire or form the organization or the end of the policy period, whichever is earlier; and b. Coverage under this provision does not apply to: (1) "Bodily injury" or "property damage" that occurred; or (2) "Personal and advertising injury" arising out of an offense committed before you acquired or formed the organization. 4. Operator Of Mobile Equipment With respect to "mobile equipment" registered in your name under any motor vehicle registration law, any person is an insured while driving such equipment along a public highway with your permission. Any other person or organization responsible for the conduct of such person is also an insured, but only with respect to liability arising out of the operation of the equipment, and only if no other insurance of any kind is available to that person or organization for this liability. However, no person or organization is an insured with respect to: a. "Bodily injury" to a co -"employee" of the person driving the equipment; or b. "Property damage" to property owned by, rented to, in the charge of or occupied by you or the employer of any person who is an insured under this provision. 5. Operator of Nonowned Watercraft With respect to watercraft you do not own that is less than 51 feet long and is not being used to carry persons for a charge, any person is an insured while operating such watercraft with your permission. Any other person or organization responsible for the conduct of such person is also an insured, but only with respect to liability arising out of the operation of the watercraft, and only if no other insurance of any kind is available to that person or organization for this liability. However, no person or organization is an insured with respect to: a. "Bodily injury" to a co -"employee" of the person operating the watercraft; or b. "Property damage" to property owned by, rented to, in the charge of or occupied by you or the employer of any person who is an insured under this provision. 6. Additional Insureds When Required By Written Contract, Written Agreement Or Permit The person(s) or organization(s) identified in Paragraphs a. through f. below are additional insureds when you have agreed, in a written Form SS 00 08 04 05 50219030 1 19-20 CA GL-HNOA-WC-PL I Sherry Young 17/29/2019 11:37:02 AM (PDT) I Page 3 of 13 Page 11 of 24 BUSINESS LIABILITY COVERAGE FORM contract, written agreement or because of a permit issued by a state or political subdivision, that such person or organization be added as an additional insured on your policy, provided the injury or damage occurs subsequent to the execution of the contract or agreement, or the issuance of the permit. A person or organization is an additional insured under this provision only for that period of time required by the contract, agreement or permit. However, no such person or organization is an additional insured under this provision if such person or organization is included as an additional insured by an endorsement issued by us and made a part of this Coverage Part, including all persons or organizations added as additional insureds under the specific additional insured coverage grants in Section F. — Optional Additional Insured Coverages. a. Vendors Any person(s) or organization(s) (referred to below as vendor), but only with respect to "bodily injury' or "property damage" arising out of "your products" which are distributed or sold in the regular course of the vendor's business and only if this Coverage Part provides coverage for "bodily injury" or "property damage" included within the "products -completed operations hazard". (1) The insurance afforded to the vendor is subject to the following additional exclusions: This insurance does not apply to: (a) "Bodily injury" or "property damage" for which the vendor is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages that the vendor would have in the absence of the contract or agreement; (b) Any express warranty unauthorized by you; (c) Any physical or chemical change in the product made intentionally by the vendor; (d) Repackaging, except when unpacked solely for the purpose of inspection, demonstration, testing, or the substitution of parts under instructions from the manufacturer, and then repackaged in the original container; (e) Any failure to make such inspections, adjustments, tests or servicing as the vendor has agreed to make or normally undertakes to make in the usual course of business, in connection with the distribution or sale of the products; (f) Demonstration, installation, servicing or repair operations, except such operations performed at the vendor's premises in connection with the sale of the product; Products which, after distribution or sale by you, have been labeled or relabeled or used as a container, part or ingredient of any other thing or substance by or for the vendor; or (h) "Bodily injury" or "property damage" arising out of the sole negligence of the vendor for its own acts or omissions or those of its employees or anyone else acting on its behalf. However, this exclusion does not apply to: (g) The exceptions contained in Subparagraphs (d) or (f); or (ii) Such inspections, adjustments, tests or servicing as the vendor has agreed to make or normally undertakes to make in the usual course of business, in connection with the distribution or sale of the products. (2) This insurance does not apply to any insured person or organization from whom you have acquired such products, or any ingredient, part or container, entering into, accompanying or containing such products. b. Lessors Of Equipment (1) (i) Any person or organization from whom you lease equipment; but only with respect to their liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by your maintenance, operation or use of equipment leased to you by such person or organization. Page 12 of 24 50219030 1 19-20 CA GL-HNOA-WC-PL 1 Sherry Young 1 7/29/2019 11,37:02 AM (PDT) 1 Page 4 of 13 Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM (2) With respect to the insurance afforded to these additional insureds, this insurance does not apply to any "occurrence" which takes place after you cease to lease that equipment. c. Lessors Of Land Or Premises (1) Any person or organization from whom you lease land or premises, but only with respect to liability arising out of the ownership, maintenance or use of that part of the land or premises leased to you. (2) With respect to the insurance afforded to these additional insureds, this insurance does not apply to: (a) Any "occurrence" which takes place after you cease to lease that land or be a tenant in that premises; or (b) Structural alterations, new construction or demolition operations performed by or on behalf of such person or organization. d. Architects, Engineers Or Surveyors (1) Any architect, engineer, or surveyor, but only with respect to liability for "bodily injury', "property damage" or "personal and advertising injury" caused, in whole or in part, by your acts or omissions or the acts or omissions of those acting on your behalf: (a) In connection with your premises; or (b) In the performance of your ongoing operations performed by you or on your behalf. (2) With respect to the insurance afforded to these additional insureds, the following additional exclusion applies: This insurance does not apply to "bodily injury", "property damage" or "personal and advertising injury" arising out of the rendering of or the failure to render any professional services by or for you, including: (a) The preparing, approving, or failure to prepare or approve, maps, shop drawings, opinions, reports, surveys, field orders, change orders, designs or drawings and specifications; or (b) Supervisory, inspection, architectural or engineering activities. e. Permits Issued By State Or Political Subdivisions (1) Any state or political subdivision, but only with respect to operations performed by you or on your behalf for which the state or political subdivision has issued a permit. (2) With respect to the insurance afforded to these additional insureds, this insurance does not apply to: (a) "Bodily injury", "property damage" or "personal and advertising injury" arising out of operations performed for the state or municipality; or (b) "Bodily injury" or "property damage" included within the "products - completed operations hazard". f. Any Other Party Any other person or organization who is not an insured under Paragraphs a. through e. above, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by your acts or omissions or the acts or omissions of those acting on your behalf: (a) In the performance of your ongoing operations; (b) In connection with your premises owned by or rented to you; or (c) In connection with "your work" and included within the "products - completed operations hazard", but only if (i) The written contract or written agreement requires you to provide such coverage to such additional insured; and (ii) This Coverage Part provides coverage for "bodily injury" or "property damage" included within the "products - completed operations hazard". (2) With respect to the insurance afforded to these additional insureds, this insurance does not apply to: "Bodily injury", "property damage" or "personal and advertising injury" arising out of the rendering of, or the failure to render, any professional architectural, engineering or surveying services, including: (1) 50219030 Form SS 00 08 04 05 Page 13 of 24 19-20 CA GL-HNOA-WC-PL I Sherry Young 17/29/2019 11:37:02 AM (PDT) I Page 5 of 13 BUSINESS LIABILITY COVERAGE FORM (a) The preparing, approving, or failure to prepare or approve, maps, shop drawings, opinions, reports, surveys, field orders, change orders, designs or drawings and specifications; or (b) Supervisory, architectural activities. inspection, or engineering The limits of insurance that apply to additional insureds are described in Section D. — Limits Of Insurance. How this insurance applies when other insurance is available to an additional insured is described in the Other Insurance Condition in Section E. — Liability And Medical Expenses General Conditions. No person or organization is an insured with respect to the conduct of any current or past partnership, joint venture or limited liability company that is not shown as a Named Insured in the Declarations. D. LIABILITY AND MEDICAL EXPENSES LIMITS OF INSURANCE 1. The Most We Will Pay The Limits of Insurance shown in the Declarations and the rules below fix the most we will pay regardless of the number of: a. Insureds; b. Claims made or "suits" brought; or c. Persons or organizations making claims or bringing "suits". 2. Aggregate Limits The most we will pay for: a. Damages because of "bodily injury" and "property damage" included in the "products -completed operations hazard" is the Products -Completed Operations Aggregate Limit shown in the Declarations. b. Damages because of all other "bodily injury", "property damage" or "personal and advertising injury", including medical expenses, is the General Aggregate Limit shown in the Declarations. This General Aggregate Limit applies separately to each of your "locations" owned by or rented to you. "Location" means premises involving the same or connecting lots, or premises whose connection is interrupted only by a street, roadway or right-of-way of a railroad. This General Aggregate limit does not apply to "property damage" to premises while rented to you or temporarily occupied by you with permission of the owner, arising out of fire, lightning or explosion. 3. Each Occurrence Limit Subject to 2.a. or 2.b above, whichever applies, the most we will pay for the sum of all damages because of all "bodily injury", "property damage" and medical expenses arising out of any one "occurrence" is the Liability and Medical Expenses Limit shown in the Declarations. The most we will pay for all medical expenses because of "bodily injury" sustained by any one person is the Medical Expenses Limit shown in the Declarations. 4. Personal And Advertising Injury Limit Subject to 2.b. above, the most we will pay for the sum of all damages because of all "personal and advertising injury" sustained by any one person or organization is the Personal and Advertising Injury Limit shown in the Declarations. 5. Damage To Premises Rented To You Limit The Damage To Premises Rented To You Limit is the most we will pay under Business Liability Coverage for damages because of "property damage" to any one premises, while rented to you, or in the case of damage by fire, lightning or explosion, while rented to you or temporarily occupied by you with permission of the owner. In the case of damage by fire, lightning or explosion, the Damage to Premises Rented To You Limit applies to all damage proximately caused by the same event, whether such damage results from fire, lightning or explosion or any combination of these. 6. How Limits Apply To Additional Insureds The most we will pay on behalf of a person or organization who is an additional insured under this Coverage Part is the lesser of: a. The limits of insurance specified in a written contract, written agreement or permit issued by a state or political subdivision; or b. The Limits of Insurance shown in the Declarations. Such amount shall be a part of and not in addition to the Limits of Insurance shown in the Declarations and described in this Section. Page 14 of 24 50219030 19-20 CA GL-HNOA-WC-PL 1 Sherry Young 1 7/29/2019 11:37:02 AM (PDT) 1 Page 6 of 13 Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM If more than one limit of insurance under this policy and any endorsements attached thereto applies to any claim or "suit", the most we will pay under this policy and the endorsements is the single highest limit of liability of all coverages applicable to such claim or "suit". However, this paragraph does not apply to the Medical Expenses limit set forth in Paragraph 3. above. The Limits of Insurance of this Coverage Part apply separately to each consecutive annual period and to any remaining period of less than 12 months, starting with the beginning of the policy period shown in the Declarations, unless the policy period is extended after issuance for an additional period of less than 12 months. In that case, the additional period will be deemed part of the last preceding period for purposes of determining the Limits of Insurance. E. LIABILITY AND MEDICAL EXPENSES GENERAL CONDITIONS 1. Bankruptcy Bankruptcy or insolvency of the insured or of the insured's estate will not relieve us of our obligations under this Coverage Part. 2. Duties In The Event Of Occurrence, Offense, Claim Or Suit a. Notice Of Occurrence Or Offense You or any additional insured must see to it that we are notified as soon as practicable of an "occurrence" or an offense which may result in a claim. To the extent possible, notice should include: (1) How, when and where the "occurrence" or offense took place; (2) The names and addresses of any injured persons and witnesses; and The nature and location of any injury or damage arising out of the "occurrence" or offense. b. Notice Of Claim If a claim is made or "suit" is brought against any insured, you or any additional insured must: (1) Immediately record the specifics of the claim or "suit" and the date received; and (2) Notify us as soon as practicable. You or any additional insured must see to it that we receive a written notice of the claim or "suit" as soon as practicable. c. Assistance And Cooperation Of The Insured (3) You and any other involved insured must: Immediately send us copies of any demands, notices, summonses or legal papers received in connection with the claim or "suit"; (2) Authorize us to obtain records and other information; Cooperate with us in the investigation, settlement of the claim or defense against the "suit"; and (4) Assist us, upon our request, in the enforcement of any right against any person or organization that may be liable to the insured because of injury or damage to which this insurance may also apply. d. Obligations At The Insured's Own Cost No insured will, except at that insured's own cost, voluntarily make a payment, assume any obligation, or incur any expense, other than for first aid, without our consent. e. Additional Insured's Other Insurance If we cover a claim or "suit" under this Coverage Part that may also be covered by other insurance available to an additional insured, such additional insured must submit such claim or "suit" to the other insurer for defense and indemnity. However, this provision does not apply to the extent that you have agreed in a written contract, written agreement or permit that this insurance is primary and non-contributory with the additional insured's own insurance. (1) (3) f. Knowledge Of An Occurrence, Offense, Claim Or Suit Paragraphs a. and b. apply to you or to any additional insured only when such "occurrence", offense, claim or "suit" is known to: (1) You or any additional insured that is an individual; (2) Any partner, if you or an additional insured is a partnership; Any manager, if you or an additional insured is a limited liability company; (4) Any "executive officer" or insurance manager, if you or an additional insured is a corporation; Any trustee, if you or an additional insured is a trust; or (6) Any elected or appointed official, if you or an additional insured is a political subdivision or public entity. (3) (5) Form SS 00 08 04 05 Page 15 of 24 50219030 119-20 CA Gb-HNOA-WC-PL 1 Sherry Young 17/29/2019 11:37,02 AM (PDT) I Page 7 of 13 BUSINESS LIABILITY COVERAGE FORM This Paragraph f. applies separately to you and any additional insured. 3. Financial Responsibility Laws a. When this policy is certified as proof of financial responsibility for the future under the provisions of any motor vehicle financial responsibility law, the insurance provided by the policy for "bodily injury" liability and "property damage" liability will comply with the provisions of the law to the extent of the coverage and limits of insurance required by that law. b. With respect to "mobile equipment" to which this insurance applies, we will provide any liability, uninsured motorists, underinsured motorists, no-fault or other coverage required by any motor vehicle law. We will provide the required limits for those coverages. 4. Legal Action Against Us No person or organization has a right under this Coverage Form: a. To join us as a party or otherwise bring us into a "suit" asking for damages from an insured; or b. To sue us on this Coverage Form unless all of its terms have been fully complied with. A person or organization may sue us to recover on an agreed settlement or on a final judgment against an insured; but we will not be liable for damages that are not payable under the terms of this insurance or that are in excess of the applicable limit of insurance. An agreed settlement means a settlement and release of liability signed by us, the insured and the claimant or the claimant's legal representative. 5. Separation Of Insureds Except with respect to the Limits of Insurance, and any rights or duties specifically assigned in this policy to the first Named Insured, this insurance applies: a. As if each Named Insured were the only Named Insured; and b. Separately to each insured against whom a claim is made or "suit" is brought. 6. Representations a. When You Accept This Policy By accepting this policy, you agree: (1) The statements in the Declarations are accurate and complete; (2) Those statements are based upon representations you made to us; and (3) We have issued this policy in reliance upon your representations. b. Unintentional Failure To Disclose Hazards If unintentionally you should fail to disclose all hazards relating to the conduct of your business at the inception date of this Coverage Part, we shall not deny any coverage under this Coverage Part because of such failure. 7. Other Insurance If other valid and collectible insurance is available for a loss we cover under this Coverage Part, our obligations are limited as follows: a. Primary Insurance This insurance is primary except when b. below applies. If other insurance is also primary, we will share with all that other insurance by the method described in c. below. b. Excess Insurance This insurance is excess over any of the other insurance, whether primary, excess, contingent or on any other basis: (1) Your Work That is Fire, Extended Coverage, Builder's Risk, Installation Risk or similar coverage for "your work"; (2) Premises Rented To You That is fire, lightning or explosion insurance for premises rented to you or temporarily occupied by you with permission of the owner; Tenant Liability That is insurance purchased by you to cover your liability as a tenant for "property damage" to premises rented to you or temporarily occupied by you with permission of the owner; (4) Aircraft, Auto Or Watercraft If the loss arises out of the maintenance or use of aircraft, "autos" or watercraft to the extent not subject to Exclusion g. of Section A. — Coverages. Property Damage To Borrowed Equipment Or Use Of Elevators If the loss arises out of "property damage" to borrowed equipment or the use of elevators to the extent not subject to Exclusion k. of Section A. — Coverages. (3) (5) Page 16 of 24 50219030 119-20 CA GL-HNOA-WC-PL I Sherry Young 1 7/29/2019 11:37:02 AM (PDT) i Page 0 of 13 Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM (7) (6) When You Are Added As An Additional Insured To Other Insurance That is other insurance available to you covering liability for damages arising out of the premises or operations, or products and completed operations, for which you have been added as an additional insured by that insurance; or When You Add Others As An Additional Insured To This Insurance That is other insurance available to an additional insured. However, the following provisions apply to other insurance available to any person or organization who is an additional insured under this Coverage Part: (a) Primary Insurance When Required By Contract This insurance is primary if you have agreed in a written contract, written agreement or permit that this insurance be primary. If other insurance is also primary, we will share with all that other insurance by the method described in c. below. (b) Primary And Non -Contributory To Other Insurance When Required By Contract If you have agreed in a written contract, written agreement or permit that this insurance is primary and non-contributory with the additional insured's own insurance, this insurance is primary and we will not seek contribution from that other insurance. Paragraphs (a) and (b) do not apply to other insurance to which the additional insured has been added as an additional insured. When this insurance is excess, we will have no duty under this Coverage Part to defend the insured against any "suit" if any other insurer has a duty to defend the insured against that "suit". If no other insurer defends, we will undertake to do so, but we will be entitled to the insured's rights against all those other insurers. When this insurance is excess over other insurance, we will pay only our share of the amount of the loss, if any, that exceeds the sum of: (1) The total amount that all such other insurance would pay for the loss in the absence of this insurance; and (2) The total of all deductible and self - insured amounts under all that other insurance. We will share the remaining loss, if any, with any other insurance that is not described in this Excess Insurance provision and was not bought specifically to apply in excess of the Limits of Insurance shown in the Declarations of this Coverage Part. c. Method Of Sharing If all the other insurance permits contribution by equal shares, we will follow this method also. Under this approach, each insurer contributes equal amounts until it has paid its applicable limit of insurance or none of the loss remains, whichever comes first. If any of the other insurance does not permit contribution by equal shares, we will contribute by limits. Under this method, each insurer's share is based on the ratio of its applicable limit of insurance to the total applicable limits of insurance of all insurers. 8. Transfer Of Rights Of Recovery Against Others To Us a. Transfer Of Rights Of Recovery If the insured has rights to recover all or part of any payment, including Supplementary Payments, we have made under this Coverage Part, those rights are transferred to us. The insured must do nothing after loss to impair them. At our request, the insured will bring "suit" or transfer those rights to us and help us enforce them. This condition does not apply to Medical Expenses Coverage. b. Waiver Of Rights Of Recovery (Waiver Of Subrogation) If the insured has waived any rights of recovery against any person or organization for all or part of any payment, including Supplementary Payments, we have made under this Coverage Part, we also waive that right, provided the insured waived their rights of recovery against such person or organization in a contract, agreement or permit that was executed prior to the injury or damage. Form SS 00 08 04 05 Page 17 of 24 50219030 119-20 CA GL-HNOA-WC-PL I Sherry Young l 7/29/2019 11:37.02 AM (PDT) I Page 9 of 13 BUSINESS LIABILITY COVERAGE FORM F. OPTIONAL ADDITIONAL INSURED COVERAGES If listed or shown as applicable in the Declarations, one or more of the following Optional Additional Insured Coverages also apply. When any of these Optional Additional Insured Coverages apply, Paragraph 6. (Additional Insureds When Required by Written Contract, Written Agreement or Permit) of Section C., Who Is An Insured, does not apply to the person or organization shown in the Declarations. These coverages are subject to the terms and conditions applicable to Business Liability Coverage in this policy, except as provided below: 1. Additional Insured - Designated Person Or Organization WHO IS AN INSURED under Section C. is amended to include as an additional insured the person(s) or organization(s) shown in the Declarations, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by your acts or omissions or the acts or omissions of those acting on your behalf: a. In the performance of your ongoing operations; or b. In connection with your premises owned by or rented to you. 2. Additional Insured - Managers Or Lessors Of Premises a. WHO IS AN INSURED under Section C. is amended to include as an additional insured the person(s) or organization(s) shown in the Declarations as an Additional Insured - Designated Person Or Organization; but only with respect to liability arising out of the ownership, maintenance or use of that part of the premises leased to you and shown in the Declarations. b. With respect to the insurance afforded to these additional insureds, the following additional exclusions apply: This insurance does not apply to: (1) Any "occurrence" which takes place after you cease to be a tenant in that premises; or (2) Structural alterations, new construction or demolition operations performed by or on behalf of such person or organization. 3. Additional Insured - Grantor Of Franchise WHO IS AN INSURED under Section C. is amended to include as an additional insured the person(s) or organization(s) shown in the Declarations as an Additional Insured - Grantor Of Franchise, but only with respect to their liability as grantor of franchise to you. 4. Additional Insured - Lessor Of Leased Equipment a. WHO IS AN INSURED under Section C. is amended to include as an additional insured the person(s) or organization(s) shown in the Declarations as an Additional Insured — Lessor of Leased Equipment, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by your maintenance, operation or use of equipment leased to you by such person(s) or organization(s). b. With respect to the insurance afforded to these additional insureds, this insurance does not apply to any "occurrence" which takes place after you cease to lease that equipment. 5. Additional Insured - Owners Or Other Interests From Whom Land Has Been Leased a. WHO IS AN INSURED under Section C. is amended to include as an additional insured the person(s) or organization(s) shown in the Declarations as an Additional Insured — Owners Or Other Interests From Whom Land Has Been Leased, but only with respect to liability arising out of the ownership, maintenance or use of that part of the land leased to you and shown in the Declarations. b. With respect to the insurance afforded to these additional insureds, the following additional exclusions apply: This insurance does not apply to: (1) Any "occurrence" that takes place after you cease to lease that land; or (2) Structural alterations, new construction or demolition operations performed by or on behalf of such person or organization. 6. Additional Insured - State Or Political Subdivision — Permits a. WHO IS AN INSURED under Section C. is amended to include as an additional insured the state or political subdivision shown in the Declarations as an Additional Page 18 of 24 50219030 119-20 CA GL-HNOA-WC-PL I Sherry Young 1 7/29/2019 11:37:02 AM (PDT) I Page 10 of 13 Form SS 00 08 04 05 BUSINESS LIABILITY COVERAGE FORM Insured — State Or Political Subdivision - Permits, but only with respect to operations performed by you or on your behalf for which the state or political subdivision has issued a permit. b. With respect to the insurance afforded to these additional insureds, the following additional exclusions apply: This insurance does not apply to: (1) "Bodily injury", "property damage" or "personal and advertising injury" arising out of operations performed for the state or municipality; or (2) "Bodily injury" or "property damage" included in the "product -completed operations" hazard. 7. Additional Insured — Vendors a. WHO IS AN INSURED under Section C. is amended to include as an additional insured the person(s) or organization(s) (referred to below as vendor) shown in the Declarations as an Additional Insured - Vendor, but only with respect to "bodily injury" or "property damage" arising out of "your products" which are distributed or sold in the regular course of the vendor's business and only if this Coverage Part provides coverage for "bodily injury" or "property damage" included within the "products -completed operations hazard". b. The insurance afforded to the vendor is subject to the following additional exclusions: (1) This insurance does not apply to: (a) "Bodily injury" or "property damage" for which the vendor is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages that the vendor would have in the absence of the contract or agreement; (b) Any express warranty unauthorized by you; (c) Any physical or chemical change in the product made intentionally by the vendor; (d) Repackaging, unless unpacked solely for the purpose of inspection, demonstration, testing, or the substitution of parts under instructions from the manufacturer, and then repackaged in the original container; (e) Any failure to make such inspections, adjustments, tests or servicing as the vendor has agreed to make or normally undertakes to make in the usual course of business, in connection with the distribution or sale of the products; (f) Demonstration, installation, servicing or repair operations, except such operations performed at the vendor's premises in connection with the sale of the product; Products which, after distribution or sale by you, have been labeled or relabeled or used as a container, part or ingredient of any other thing or substance by or for the vendor; or (h) "Bodily injury" or "property damage" arising out of the sole negligence of the vendor for its own acts or omissions or those of its employees or anyone else acting on its behalf. However, this exclusion does not apply to: (i) The exceptions contained in Subparagraphs (d) or (f); or (ii) Such inspections, adjustments, tests or servicing as the vendor has agreed to make or normally undertakes to make in the usual course of business, in connection with the distribution or sale of the products. (2) This insurance does not apply to any insured person or organization from whom you have acquired such products, or any ingredient, part or container, entering into, accompanying or containing such products. 8. Additional Insured — Controlling Interest WHO IS AN INSURED under Section C. is amended to include as an additional insured the person(s) or organization(s) shown in the Declarations as an Additional Insured — Controlling Interest, but only with respect to their liability arising out of: a. Their financial control of you; or b. Premises they own, maintain or control while you lease or occupy these premises. (g) Form SS 00 08 04 05 50219030 119-20 CA GL-HNOA-WC-PL I Sherry Young 17/29/2019 11:37:02 AM (PDT) I Page 11 of 13 Page 19 of 24 BUSINESS LIABILITY COVERAGE FORM This insurance does not apply to structural alterations. new construction and demolition operations performed by or for that person or organization. 9. Additional Insured — Owners, Lessees Or Contractors — Scheduled Person Or Organization a. WHO IS AN INSURED under Section C. is amended to include as an additional insured the person(s) or organization(s) shown in the Declarations as an Additional Insured — Owner, Lessees Or Contractors, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by your acts or omissions or the acts or omissions of those acting on your behalf: (1) In the performance of your ongoing operations for the additional insured(s); or (2) In connection with "your work" performed for that additional insured and included within the "products - completed operations hazard", but only if this Coverage Part provides coverage for "bodily injury" or "property damage" included within the "products -completed operations hazard". b. With respect to the insurance afforded to these additional insureds, this insurance does not apply to "bodily injury", "property damage" or "personal an advertising injury" arising out of the rendering of, or the failure to render, any professional architectural, engineering or surveying services, including: (1) The preparing, approving, or failure to prepare or approve, maps, shop drawings, opinions, reports, surveys, field orders, change orders, designs or drawings and specifications; or (2) Supervisory, inspection, architectural or engineering activities. 10. Additional Insured — Co -Owner Of Insured Premises WHO IS AN INSURED under Section C. is amended to include as an additional insured the person(s) or Organization(s) shown in the Declarations as an Additional Insured — Co - Owner Of Insured Premises, but only with respect to their liability as co-owner of the premises shown in the Declarations. The limits of insurance that apply to additional insureds are described in Section D. — Limits Of Insurance. How this insurance applies when other insurance is available to an additional insured is described in the Other Insurance Condition in Section E. — Liability And Medical Expenses General Conditions. G. LIABILITY AND MEDICAL EXPENSES DEFINITIONS 1. "Advertisement" means the widespread public dissemination of information or images that has the purpose of inducing the sale of goods, products or services through: a. (1) Radio; (2) Television; (3) Billboard; (4) Magazine; (5) Newspaper; b. The Internet, but only that part of a web site that is about goods, products or services for the purposes of inducing the sale of goods, products or services; or c. Any other publication that is given widespread public distribution. However, "advertisement" does not include: a. The design, printed material, information or images contained in, on or upon the packaging or labeling of any goods or products; or b. An interactive conversation between or among persons through a computer network. 2. "Advertising idea" means any idea for an "advertisement". 3. "Asbestos hazard" means an exposure or threat of exposure to the actual or alleged properties of asbestos and includes the mere presence of asbestos in any form. 4. "Auto" means a land motor vehicle, trailer or semi -trailer designed for travel on public roads, including any attached machinery or equipment. But "auto" does not include "mobile equipment". 5. "Bodily injury" means physical: a. b. c. Injury; Sickness; or Disease sustained by a person and, if arising out of the above, mental anguish or death at any time. 6. "Coverage territory" means: Page 20 of 24 Form SS 00 08 04 05 50219030 119-20 CA GL-HNOA-WC-PL I Sherry Young 17/29/2019 11:37:02 AM (PDT) I Page 12 of 13 TRAVELERS Insured: Phase II Systems Policy No.: UB2J193983 Effective Date: 6/1/2019 WORKERS COMPENSATION AND EMPLOYERS LIABILITY ENDORSEMENT WC 99 03 76 (00) dba: PARS WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT — CALIFORNIA (BLANKET WAIVER) We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule. You must maintain payroll records accurately segregating the remuneration of your employees while engaged in the work described in the Schedule. The additional premium for this endorsement shall be 5.000% of the California workers' compensation premium otherwise due on such remuneration. Schedule Person or Organization ANY PERSON OR ORGANIZATION WITH WHOM YOU AGREE IN WRITING TO WAIVE YOUR RIGHT TO RECOVER AGAINST THEM. YOU MUST AGREE TO THIS WAIVER PRIOR TO THE DATE OF LOSS Job Description: Projects as on file with the insured. Authorized Representative 50219030 1 19-20 CA GL-HNOA-WC-PL 1 Sherry Young 17/29/2019 11:37:02 AM (PDT) I Page 13 of 13 RESOLUTION NO. 2019 — 135 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY 1) APPROVING THE FIRST AMENDMENT TO THE AGREEMENT WITH PHASE II SYSTEMS DBA PUBLIC AGENCY RETIREMENT SERVICES WITH A MUTUAL INDEMNITY AND HOLD HARMLESS PROVISION FOR OTHER POST -EMPLOYMENT BENEFITS TRUST ADMINISTRATION SERVICES FOR THE PERIOD OF SEPTEMBER 18, 2019 THROUGH DECEMBER 31, 2020, 2) APPROVING THE AMENDED ADOPTION AGREEMENT FOR THE PUBLIC AGENCIES POST -EMPLOYMENT BENEFITS TRUST AGREEMENT, AND 3) AUTHORIZING THE CITY MANAGER TO EXECUTE THE DOCUMENTS WHEREAS, the City employed a consultant to provide comprehensive trust administration services for the City's irrevocable supplemental pension trust (the "Trust") for the period of December 20, 2017 through December 31, 2020; and WHEREAS, the City determined that Phase II Systems dba Public Agency Retirement Services (PARS) is an administrator of irrevocable supplemental pension trusts and is qualified by experience and ability to perform the services desired by the City, and PARS is willing to perform such services; and WHEREAS, the agreement contains a mutual indemnity and hold harmless provision with compensation deducted from the Trust's assets; and WHEREAS, on December 19, 2017, per Resolution 2017-243, the City Council authorized the Mayor to Execute an agreement with a mutual indemnity and hold harmless provision with Phase II Systems dba Public Agency Retirement Services to provide pension trust administration; and WHEREAS, at the Special Meeting of the City Council on April 24, 2019, the City Council approved the assignment of $3.1 million of General Fund fund balance to establish an irrevocable post -employment benefits (OPEB) trust; and WHEREAS, staff recommends amending City Council Policy #201, "Maintenance of Reserves," to add "Irrevocable Other Post -Employment Benefits Trust Reserve" to the City's reserves and establish a target level for the trust of an amount equal to the total net liability of the City's OPEB plans. NOW, THEREFORE, BE IT RESOLVED that the City Council hereby approves the first amendment to the Agreement with Phase II Systems dba Public Agency Retirement Services with a mutual indemnity and hold harmless provision for other post - employment benefits trust administration services for the period of September 18, 2019 through December 31, 2020. BE IT FURTHER RESOLVED that the City Council hereby approves the amended adoption Agreement for the Public Agencies Post -Employment Benefits Trust Agreement. Resolution No. 2019 — 135 Page Two BE IT FURTHER RESOLVED that the City Council authorizes the City Manager to execute the documents. PASSED and ADOPTED this 17th day of Septembers 2 AlejandrolSolis, Mayor ATTEST: Michael . Dalla, City Clerk APPROVED AS TO FORM: Mo r'.-Jo ttorney Passed and adopted by the Council of the City of National City, California, on September 17, 2019 by the following vote, to -wit: Ayes: Councilmembers Cano, Morrison, Quintero, Rios, Sotelo-Solis. Nays: None. Absent: None. Abstain: None. AUTHENTICATED BY: ALEJANDRA SOTELO-SOLIS Mayor of the City of National City, California MICHAEL R. DALLA City Clerk of the City of National City, California By: Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2019-135 of the City of National City, California, passed and adopted by the Council of said City on September 17, 2019. City Clerk of the City of National City, California By: eZ003 -3-s- CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: September 17, 2019 AGENDA ITEM NO.: 19 ITEM TITLE: Resolution of the City Council of the City of National City 1) approving the first amendment to the agreement with Phase II Systems dba Public Agency Retirement Services with a mutual indemnity and hold harmless provision for other post -employment benefits trust administration services for the period September 18, 2019 through December 31, 2020, 2) approving the amended adoption agreement for the Public Agencies Post -Employment Benefits Trust Agreement, and 3) authorizing the city manager to execute the documents. PREPARED BY: Mark Roberts, Director of Finance DEPARTMENT: Finance� PHONE: 619-336-4330 APPROVED BY: `7'/'/ate %? EXPLANATION: At the Special Meeting of the City Council on April 24, 2019, the City Council approved the assignment of $3.1 million of General Fund fund balance to establish an other post -employment benefits (OPEB) trust. With this item, staff recommends amendment of City Council Policy # 201, "Maintenance of Reserves," to add "Irrevocable Other Post -Employment Benefits Trust Reserve" to the City's reserves and establish a target level for the trust of an amount equal to the total net liability of the City's OPEB plans. FINANCIAL STATEMENT: ACCOUNT NO. NA APPROVED: `7/1(�G% FINANCE APPROVED: MIS ENVIRONMENTAL REVIEW: This is not a project and, therefore, not subject to environmental review. ORDINANCE: INTRODUCTION FINAL ADOPTION STAFF RECOMMENDATION: Adopt the resolution, 1) approving the first amendment to the agreement with Phase II Systems dba Public Agency Retirement Services with a mutual indemnity and hold harmless provision for other post -employment benefits trust administration services for the period September 18, 2019 through December 31, 2020, 2) approving the amended adoption agreement for the Public Agencies Post -Employment Benefits Trust Agreement, and 3) authorizing the city manager to execute the documents. BOARD / COMMISSION RECOMMENDATION: ATTACHMENTS: 1. First Amendment to the Phase II Systems dba Public Agency Retirement Services Agreement 2. Adoption Agreement for the Post -Employment Section 115 Trust 3. Phase II Systems dba Public Agency Retirement Services Agreement 4. Public Agencies Post -Employment Post -Employment Health Care Plan Master Plan Document 5. Public Agencies Post -Employment Benefits Trust Agreement 6. Resolution ,f Sale dn % • ?O/' . /3.5 FIRST AMENDMENT TO THE AGREEMENT BETWEEN THE CITY OF NATIONAL CITY AND PHASE II SYSTEMS D.B.A. "PUBLIC AGENCY RETIREMENT SERVICES" This First Amendment to the Agreement is entered into this 17th day of September, 2019 between the City of National City, a municipal corporation (the "CITY"), and PHASE II SYSTEMS, a California corporation, d.b.a. "Public Agency Retirement Services" (the "CONSULTANT"). RECITALS WHEREAS, the CITY and CONSULTANT entered into an agreement on December 20, 2017 (the "Agreement") wherein the CONSULTANT agreed to provide comprehensive trust administration services for the CITY'S irrevocable supplemental pension trust (the "Pension Trust"); and WHEREAS, the parties desire to amend the Agreement to increase the scope of work to include comprehensive trust administration services for the CITY'S irrevocable other post - employment benefits trust (the "OPEB Trust"), as set forth in attached Exhibit "A." NOW, THEREFORE, the parties hereto agree that the Agreement entered into on December 20, 2017 shall be amended as follows: 1. The Scope of Services, described in Section 3 of the Agreement, shall be increased to include comprehensive trust administration services for the "OPEB Trust," as set forth in attached Exhibit "A." 2. CONSULTANT shall be compensated for performance on the increased Scope of Services as set forth in attached Exhibit "B." 3. CONSULTANT shall perform those increased Scope of Services after receiving from CITY the requested Data Requirement Information set forth in attached Exhibit "C." 4. The parties further agree that, except for item 1 above, each and every term and provision of the Agreement dated December 20, 2017 shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to the Agreement on the date and year first above written. [Signature Page to Follow] CITY OF NATIONAL CITY PHASE II SYSTEMS, A CALIFORNIA CORPORATION U.B.A. "PUBLIC AGENCY RETIREMENT SERVICES" By: By: Brad Raulston, City Manager APPROVED AS TO FORM: Angil P. Morris -Jones City Attorney By: Roberto M. Contreras Deputy City Attorney By: Tod Hammeras, Chief Finan aca 1 Officer Daniel C. Jon, President First Amendment to Dec. 2017 Agreement Page 2 of 2 City of National City and September 17, 2019 Phase II Systems d.b.a. `PARS" EXHIBIT A PUBLIC AGENCY RETIREMENT SERVICES SCOPE OF SERVICES The CONSULTANT will provide the following services for the City of National City's irrevocable supplemental pension trust plan ("Pension Trust Plan") and irrevocable other post - employment benefits trust plan ("OPEB Trust Plan"): 1. Plan Installation Services: A. Meeting with appropriate CITY personnel to discuss Pension Trust Plan and OPEB Trust Plan provisions, implementation timelines, the actuarial valuation process, funding strategies, benefit communication strategies, data reporting, and submission requirements for contributions, reimbursements, and distributions; B. Providing necessary analysis and advisory services to finalize the elements of Paragraph 1(A) of this Exhibit A; C. Providing all documents needed to create the Pension Trust Plan and OPEB Trust Plan for review and approval by the City Attorney. Resulting final Pension Trust Plan and OPEB Trust Plan documents must be approved by the CITY before the commencement of Plan Administration Services outlined in Paragraph 2 below. 2. Plan Administration Services: A. Monitoring the receipt of Pension Trust Plan and OPEB Trust Plan contributions made by the CITY to the trustee of the Pension Trust and the OPEB Trust ("Trustee"), based upon information received from the CITY and the Trustee; B. Performing periodic accounting of Pension Trust Plan and OPEB Trust Plan assets, reimbursements/distributions, and investment activities, based upon information received from the CITY and/or Trustee; C. Coordinating the processing of distribution payments pursuant to authorized direction by the CITY, and the provisions of the Pension Trust Plan and the OPEB Trust Plan, and, to the extent possible, based upon CITY -provided Data; D. Coordinating actions with the Trustee as directed by the Plan Administrator within the scope the Agreement; E. Preparing and submitting monthly reports of Pension Trust Plan and OPEB Trust Plan activities to the CITY, unless directed by the CITY otherwise; F. Conducting annual in -person client reviews to provide full administrative and investment reviews of the Pension Trust Plan and the OPEB Trust Plan and to ensure the CITY'S ongoing satisfaction with its participation in the Pension Trust Plan and the OPEB Trust Plan. G. Conducting in -person or over -the -phone meetings more frequently, if requested by the Page 1 of 2 CITY. H. Providing annual updates of the Pension Trust Plan and the OPEB Trust Plan to the City Council during one of its public meetings, if requested by the CITY. I. Preparing and submitting annual reports of Pension Trust Plan and OPEB Trust Plan activities to the CITY; J. Facilitating actuarial valuation updates and funding modifications for compliance with GASB 45/75 and other GASB Statements, as applicable, for OPEB obligations; K. Coordinating periodic audits of the Pension Trust Plan and the OPEB Trust Plan, as requested by CITY; L. Monitoring Pension Trust Plan, Pension Trust, OPEB Trust Plan, and OPEB Trust compliance with federal and state laws. 3. The CITY acknowledges that PARS is not licensed to provide, and does not offer tax, accounting, legal, investment, or actuarial advice. Page 2 of 2 EXHIBIT B PUBLIC AGENCY RETIREMENT SERVICES RATES TO PERFORM POST -EMPLOYMENT BENEFITS TRUST ADMINISTRATION SERVICES CONSULTANT will be compensated for performance of Services, as described in Exhibit "A" based upon the following schedule: ANNUAL ASSET FEE For Total Plan Asset Balances from Annual Ratg $0 to $10,000,000 $10,000,001 to $15,000,000 $15,000,001 to $50,000,000 $50,000,001 and above 0.25% 0.20% 0.15% 0.10% Annual Rates are prorated and paid monthly. The annual asset fee shall be calculated by the following formula: Annual Rate divided by 12 (months of the year) multiplied by the combined asset balances of the post -employment benefits trust plans at the end of the month. TRUSTEE & INVESTMENT MANAGEMENT FEES Trustee and investment management fees are not included in the annual asset fees stated above. Trustee and investment management services are provided under a separate agreement with US Bank, and trustee and investment management fees are paid to US Bank. These fees include investment policy development, asset allocation recommendations, asset management, and all custodial services and are based upon the following schedule: For Total Plan Asset Balances from $0 to $5,000,000 $5,000,001 to $10,000,000 $10,000,001 to $15,000,000 $15,000,001 to $50,000,000 $50,000,001 and above Annual Rate 0.35% 0.25% 0.20% 0.15% 0.10% Annual Rates are prorated and paid monthly. Annual trustee and investment management fees shall be calculated by the following formula: Annual Rate divided by 12 (months of the year) multiplied by the combined asset balances of the post -employment benefits trust plans at the end of the month. Both the annual asset fees and trustee and investment management fees shall be deducted from post -employment benefits trust plans' assets. Page 1 of 1 EXHIBIT C PUBLIC AGENCY RETIREMENT SERVICES DATA REQUIREMENTS CONSULTANT will provide all services required under the Agreement, and the increased Scope of Services described in Exhibit "A", upon receiving the following information: 1. Executed legal documents: A. certified resolutions B. adoption agreements to the Plan C. trustee investment forms 2. Contribution — completed Contribution Transmittal Form signed by the Plan Administrator (or authorized designee) which contains the following information: A. agency name B. contribution amounts C. contribution dates D. contribution method (check, ACH, wire) 3. Distribution — completed Transfer/Payment/Reimbursement Form signed by the Plan Administrator (or authorized designee) which contains the following information: A. agency name B. payment reimbursement/distribution amounts C. applicable statement dates D. copy of applicable premium, claim, statement, warrant, and/or administrative expense evidencing payments E. signed certifications of reimbursements/distributions from the Plan Administrator (or authorized designee) 4. Other information pertinent to the CONSULTANT'S services as reasonably requested by the CONSULTANT and the CITY'S actuarial provider. Page 1 of 1 AMENDED ADOPTION AGREEMENT for the POST -EMPLOYMENT SECTION 115 TRUST A.1.1. Trust agreement with U.S. Bank National Association (the "Bank") (the "Trust Agreement"): Post -Employment Section 115 Trust. Public Agencies Post -Employment Benefits —Trust Agreement, effective November 5, 2014 A.1.2. OPEB Plan: Public Agencies Post -Employment Health Care Plan The plan document for the OPEB Plan is the Public Agencies Post - Employment Health Care Plan —Master Plan Document, effective as of November 5, 2014 (the "Plan Document"). A.1.3. Pension Plan: Ca1PERS Miscellaneous Plan Ca1PERS Safety Plan A.1.4. Pension Plan's effective date: July 1, 1948 ❑ (Check if applicable) Additional Pension Plans (and their respective effective dates) are listed on an exhibit attached hereto. A.2.1. Employer: Name: City of National City U.S. mail address: 1243 National City Boulevard, National City, CA 91950 Phone number: (619) 336-4240 EIN: 95-6000749 Fiscal year end: June 30 A.2.2. Plan Administrator Position at Employer: City Manager Incumbent: Brad Raulston U.S. mail address: 1243 National City Boulevard, National City, CA 91950 Phone number: 1619) 336-4240 Email address: braulstonAnationalcityca.gov Page 1 of 4 EXHIBIT "A" TO PUBLIC AGENCIES POST -EMPLOYMENT BENEFITS TRUST AGREEMENT A.3.1 Adoption. The Employer hereby: (Section A.3.1 is hereby amended to add the Pension Plan.) A.3.1.1.Adopts the Trust Agreement as part of the (Check one or both of the following boxes.): ▪ OPEB Plan Q Pension Plan (each such plan separately, the "Plan") and agrees to be bound by the Trust Agreement's terms, effective as of the Employer's signature date below and subject to the investment approach selected below. A.3.1.2.The following provisions apply if and only if the OPEB Plan box above is checked: (i) Adopts the Plan Document and agrees to be bound by the Plan Document's terms, effective as of the Employer's signature date below and (ii) acknowledges that the determination of Eligible Employees and Eligible Beneficiaries is finally and conclusively made by the Employer according to the Employer's applicable policies and collective bargaining agreements and without reference to the Trust Agreement. A.3.1.3.Ratifies, affirms, and approves Employer's appointment of Phase II Systems as Trust Administrator and represents and warrants that attached hereto is a fully -executed original of Employer's Agreement for Administrative Services with Phase II Systems, d/b/a Public Agency Retirement Services (PARS). A.3.1.4.Agrees that capitalized terms used herein but not defined herein shall have the same meaning attributed to them as in the Trust Agreement or Plan Document, as the case may be. A.4.1. The Employer hereby represents and warrants that: A.4.1.1. Authorizing Law. Employer has reviewed with its legal counsel and has determined that Employer is authorized to establish and maintain the Plan and to establish a financial - institution trust (separate and apart from the state) for the Plan, including the authority to adopt the Trust Agreement. A.4.1.2. Authorizing Resolution. Attached hereto is a certified copy of a resolution of the Employer's governing body authorizing the adoption of the Trust Agreement as part of the Plan and authorizing the appointment of the PIan Administrator designated by position of employment at the Employer to act on the Employer's behalf in all matters relating to the trust. A.4.1.3. Tax Status. The Plan is a "governmental plan" as defined in Section 414(d) of the Internal Revenue Code of 1986, as amended; is a "Section 401(a)(24) governmental plan" as defined in Revenue Ruling 2011-1; and is not subject to Federal income taxation. The Plan's governing document expressly provides that it is irrevocably impossible for any part of the corpus or income of the Plan to be used for, or diverted to, purposes other than for the exclusive benefit of the Plan participants and their beneficiaries. The Pension Plan is a qualified plan under Code Section 401(a). (In addition, the Employer hereby acknowledges that the Plan is prohibited from assigning any part of its equity or interest in the trust.) Page 2 of 4 EXHIBIT "A" TO PUBLIC AGENCIES POST -EMPLOYMENT BENEFITS TRUST AGREEMENT A.4.2. Investment Approach. A.4.2.1. The following provisions apply if and only if the OPEB Plan box above is checked: OPEB Account. OPEB Account assets are invested in the discretion of (check one and only one of the following boxes): Discretionary investment approach: The Bank, subject to Exhibit A (Investment Strategy Selection and Disclosure Form) hereto. Directed investment approach: o The Plan Administrator. ❑ The following registered investment adviser, bank (other than the Bank), or insurance company (a "Third -Party Manager"): . The Employer hereby represents and warrants that attached hereto is an executed copy of the agreement with the above appointed Third Party Manager. A.4.2.2. The following provisions apply if and only if the Pension Plan box above is checked: Pension Account. Pension Account assets are invested in the discretion of (check one and only one of the following boxes): (Section A.4.2.2 is hereby amended to add the investment approach for the Pension Account.) Discretionary investment approach: El The Bank, subject to Exhibit A (Investment Strategy Selection and Disclosure Form) hereto. Directed investment approach: o The Plan Administrator. o The following registered investment adviser, bank (other than the Bank), or insurance company (a "Third -Party Manager"): . The Employer hereby represents and warrants that attached hereto is an executed copy of the agreement with the above appointed Third Party Manager. A.4.3. It is intended that any references to GASB pronouncements and/or statements in the Public Agencies Post -Employment Health Care Plan and Trust Agreement shall incorporate any applicable successor pronouncements and/or statements. Page 3 of 4 EXHIBIT "A" TO PUBLIC AGENCIES POST -EMPLOYMENT BENEFITS TRUST AGREEMENT This Amended Adoption Agreement is hereby adopted effective as of the Employer's signature date below. CITY OF NATIONAL CITY By: Brad Raulston Its: City Manager Date: Accepted by: PHASE II SYSTEMS, DBA PUBLIC AGENCY RETIREMENT SERVICES (PARS) By: Daniel Johnson Its: President Date: U.S. BANK NATIONAL ASSOCIATION By: Susan M. Hughes Its: Vice President and Relationship Manager Date: Page 4 of 4 EXHIBIT "A" TO PUBLIC AGENCIES POST -EMPLOYMENT BENEFITS TRUST AGREEMENT AGREEMENT BY AND BETWEEN THE CITY OF NATIONAL CITY AND PHASE II SYSTEMS D.B.A. "PUBLIC AGENCY RETIREMENT SERVICES" THIS AGREEMENT is entered into on this 20th day of December, 2017, by and between the CITY OF NATIONAL CITY, a municipal corporation (the "CITY"), and PHASE II SYSTEMS, a California corporation, d.b.a. "Public Agency Retirement Services" (the "CONSULTANT"). RECITALS WHEREAS, the CITY desires to employ a consultant to provide comprehensive trust administration services for the CITY'S irrevocable supplemental pension trust (the "Trust"). WHEREAS, the CITY has determined that the CONSULTANT is an administrator of irrevocable supplemental pension trusts and is qualified by experience and ability to perform the services desired by the CITY, and the CONSULTANT is willing to perform such services. NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS FOLLOWS: 1. ENGAGEMENT OF CONSULTANT. The CITY agrees to engage the CONSULTANT to administer an irrevocable supplemental pension trust on behalf of the CITY, and to perform all other administration services related thereto as described in the attached Exhibits "A" and "C", and the CONSULTANT agrees to perform the services set forth here in accordance with all terms and conditions contained herein. The CONSULTANT represents that all services shall be performed directly by the CONSULTANT or under direct supervision of the CONSULTANT. 2. EFFECTIVE DATE AND LENGTH OF AGREEMENT. This Agreement will become effective on December 20, 2017. The duration of this Agreement is for the period of December 20, 2017 through December 31, 2020. This Agreement may be extended by mutual agreement upon the same terms and conditions for up to two (2) additional one-year terms. Any extension of this Agreement must be approved in writing by the City Manager. 3. SCOPE OF SERVICES. The CONSULTANT will perform those pension trust administration services as set forth in the attached Exhibits "A" and "C." Once supplied with the information needed to execute its duties under Exhibits "A" and "C," the CONSULTANT shall be responsible for all research and reviews related to the work. The CONSULTANT shall not rely on personnel of the CITY for any information not described in Exhibits "A" and "C." The CITY may unilaterally, or upon request from the CONSULTANT, from time to time reduce or increase the Scope of Services to be performed by the CONSULTANT under this Agreement. Upon doing so, the CITY and the CONSULTANT agree to meet in good faith and confer for the purpose of negotiating a corresponding reduction or increase in the compensation associated with said change in services. 4. PROJECT COORDINATION AND SUPERVISION. The Director of Finance hereby is designated as the Plan Administrator for the CITY and will monitor the progress and execution of this Agreement. The CONSULTANT shall assign a single Project Director to provide supervision and have overall responsibility for the progress and execution of this Agreement for the CONSULTANT. Mitch Barker thereby is designated as the Project Director for the CONSULTANT. 5. COMPENSATION AND PAYMENT. The compensation for the CONSULTANT shall be based upon the schedule and formula set forth in Exhibit "B." Compensation due to the CONSULTANT shall be deducted from the Trust's assets. The CONSULTANT shall submit a monthly statement to the CITY documenting the amount deducted from the Trust. The total cost for all work described in this Agreement shall not exceed those rates listed in Exhibit `B" without prior written authorization from the CITY. The CONSULTANT shall maintain all books, documents, papers, employee time sheets, accounting records, and other evidence pertaining to costs incurred, and shall make such materials available at its office at all reasonable times during the term of this Agreement and for three (3) years from the date of final payment under this Agreement, for inspection by the CITY, and for furnishing of copies to the CITY, if requested. 6. ACCEPTABILITY OF WORK. The CITY shall decide any and all questions which may arise as to the quality or acceptability of the services performed and the manner of performance, the acceptable completion of this Agreement, and the amount of compensation due. In the event the CONSULTANT and the CITY cannot agree to the quality or acceptability of the work, the manner of performance and/or the compensation payable to the CONSULTANT in this Agreement, the CITY or the CONSULTANT shall give to the other written notice. Within ten (10) business days, the CONSULTANT and the CITY shall each prepare a report which supports their position and file the same with the other party. The CITY shall, with reasonable diligence, determine the quality or acceptability of the work, the manner of performance and/or the compensation payable to the CONSULTANT. 7. INFORMATION FURNISHED TO CONSULTANT. The CONSULTANT will provide those services required under this Agreement if the CITY provides the CONSULTANT all information described in Exhibit "C" ("DATA"). The CITY shall be responsible for the accuracy, content, and completeness of the DATA so the CONSULTANT may rely upon such information. CONSULTANT will inform CITY, in writing, how much time CONSULTANT reasonably needs to review the DATA before CONSULTANT may complete any of its services required under this Agreement. The CITY must provide the DATA to CONSULTANT within the reasonable timeframe identified by CONSULTANT. 8. DISPOSITION AND OWNERSHIP OF DOCUMENTS. The memoranda, reports, maps, drawings, plans, specifications, and other documents prepared by the CONSULTANT for this project, whether paper or electronic, shall become the property of the Standard Agreement Revised July 2017 Page 2 of 11 City of National City and Phase II Systems, dba Public Agency Retirement Services CITY for use with respect to this project, and shall be turned over to the CITY upon completion of the project, or any phase thereof, as contemplated by this Agreement. Contemporaneously with the transfer of documents, the CONSULTANT hereby assigns to the CITY, and the CONSULTANT thereby expressly waives and disclaims any copyright in, and the right to reproduce, all written material, drawings, plans, specifications, or other work prepared under this Agreement, except upon the CITY'S prior authorization regarding reproduction, which authorization shall not be unreasonably withheld. The CONSULTANT shall, upon request of the CITY, execute any further document(s) necessary to further effectuate this waiver and disclaimer. The CONSULTANT agrees that the CITY may use, reuse, alter, reproduce, modify, assign, transfer, or in any other way, medium, or method utilize the CONSULTANT'S written work product for the CITY'S purposes, and the CONSULTANT expressly waives and disclaims any residual rights granted to it by Civil Code Sections 980 through 989 relating to intellectual property and artistic works. Any modification or reuse by the CITY of documents, drawings, or specifications prepared by the CONSULTANT shall relieve the CONSULTANT from liability under Section 15, but only with respect to the effect of the modification or reuse by the CITY, or for any liability to the CITY should the documents be used by the CITY for some project other than what was expressly agreed upon within the Scope of Services of this project, unless otherwise mutually agreed. 9. INDEPENDENT CONTRACTOR. Both parties hereto in the performance of this Agreement will be acting in an independent capacity and not as agents, employees, partners, or joint venturers with one another. Neither the CONSULTANT nor the CONSULTANT'S employees are employees of the CITY, and are not entitled to any of the rights, benefits, or privileges of the CITY'S employees, including but not limited to retirement, medical, unemploy- ment, or workers' compensation insurance. This Agreement contemplates the personal services of the CONSULTANT and the CONSULTANT'S employees, and it is recognized by the parties that a substantial inducement to the CITY for entering into this Agreement was, and is, the professional reputation and competence of the CONSULTANT and its employees. Neither this Agreement nor any interest herein may be assigned by the CONSULTANT without the prior written consent of the CITY. Nothing herein contained is intended to prevent the CONSULTANT from employing or hiring as many employees, or subconsultants, as the CONSULTANT may deem necessary for the proper and efficient performance of this Agreement. All agreements by the CONSULTANT with its subconsultant(s) shall require the subconsultant(s) to adhere to the applicable terms of this Agreement. 10. CONTROL. Neither the CITY, nor its officers, agents, or employees shall have any control over the conduct of the CONSULTANT or any of the CONSULTANT'S employees, except as set forth in this Agreement. The CONSULTANT, or the CONSULTANT'S agents, servants, or employees are not in any manner agents, servants, or employees of the CITY. The CONSULTANT and its agents, servants, and employees are wholly independent from the CITY, and the CONSULTANT'S obligations to the CITY are solely prescribed by this Agreement. 11. COMPLIANCE WITH APPLICABLE LAW. The CONSULTANT, in the performance of the services to be provided herein, shall comply with all applicable state and Standard Agzeement Page 3 of 11 Revised July 2017 City of National City and Phase II Systems, dba Public Agency Retirement Services federal statutes and regulations, and all applicable ordinances, rules, and regulations of the City of National City, whether now in force or subsequently enacted. The CONSULTANT and each of its subconsultant(s), shall obtain and maintain a current City of National City business license prior to and during performance of any work pursuant to this Agreement. 12. LICENSES, PERMITS, ETC. The CONSULTANT represents and covenants that it has all licenses, permits, qualifications, and approvals of whatever nature that are legally required to practice its profession. The CONSULTANT represents and covenants that the CONSULTANT shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement, any license, permit, or approval which is legally required for the CONSULTANT to practice its profession. 13. STANDARD OF CARE. A. The CONSULTANT, in performing any services under this Agreement, shall perform in a manner consistent with that level of care and skill ordinarily exercised by members of the CONSULTANT'S trade or profession currently practicing under similar conditions and in similar locations. The CONSULTANT shall take all special precautions necessary to protect the CONSULTANT'S employees and members of the public from risk of harm arising out of the nature of the work and/or the conditions of the work site. B. Unless disclosed in writing prior to the date of this Agreement, the CONSULTANT warrants to the CITY that it is not now, nor has it for the five (5) years preceding, been debarred by a governmental agency or involved in debarment, arbitration or litigation proceedings concerning the CONSULTANT'S professional performance or the furnishing of materials or services relating thereto. C. The CONSULTANT is responsible for identifying any unique products, treatments, processes or materials whose availability is critical to the success of the project the CONSULTANT has been retained to perform, within the time requirements of the CITY, or, when no time is specified, then within a commercially reasonable time. Accordingly, unless the CONSULTANT has notified the CITY otherwise, the CONSULTANT warrants that all products, materials, processes or treatments identified in the project documents prepared for the CITY are reasonably commercially available. Any failure by the CONSULTANT to use due diligence under this sub -section will render the CONSULTANT liable to the CITY for any increased costs that result from the CITY'S later inability to obtain the specified items or any reasonable substitute within a price range that allows for project completion in the time frame specified or, when not specified, then within a commercially reasonable time. 14. NON-DISCRIMINATION PROVISIONS. The CONSULTANT shall not discriminate against any employee or applicant for employment because of age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. The CONSULTANT will take positive action to insure that applicants are employed without regard to their age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. Such action shall include but not be limited to the following: employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. The CONSULTANT agrees to post in conspicuous places available to employees and applicants for employment any notices provided by the CITY setting forth the provisions of this non-discrimination clause. Standard Agreement 'Page 4 of 11 Revised July 2017 City of National City and Phase II Systems, dba Public Agency Retirement Services 15. CONFIDENTIAL INFORMATION. The CITY may from time to time communicate to the CONSULTANT certain confidential information to enable the CONSULTANT to effectively perform the services to be provided herein. The CONSULTANT shall treat all such information as confidential and shall not disclose any part thereof without the prior written consent of the CITY. The CONSULTANT shall limit the use and circulation of such information, even within its own organization, to the extent necessary to perform the services to be provided herein. The foregoing obligation of this Section 15, however, shall not apply to any part of the information that (i) has been disclosed in publicly available sources of information; (ii) is, through no fault of the CONSULTANT, hereafter disclosed in publicly available sources of information; (iii) is already in the possession of the CONSULTANT without any obligation of confidentiality; or (iv) has been or is hereafter rightfully disclosed to the CONSULTANT by a third party, but only to the extent that the use or disclosure thereof has been or is rightfully authorized by that third party. The CONSULTANT shall not disclose any reports, recommendations, conclusions or other results of the services or the existence of the subject matter of this Agreement without the prior written consent of the CITY. In its performance hereunder, the CONSULTANT shall comply with all legal obligations it may now or hereafter have respecting the information or other property of any other person, firm or corporation. The CONSULTANT shall be liable to the CITY for any damages caused by breach of this condition, pursuant to the provisions of Section 16. 16. INDEMNIFICATION AND HOLD HARMLESS. The CONSULTANT and CITY agree to defend, indemnify and hold each other and their respective officers, officials, agents, employees, and volunteers harmless against and from any and all liability, loss, damages to property, injuries to, or death of any person or persons, and all claims, demands, suits, actions, proceedings, reasonable attorneys' fees, and defense costs, of any kind or nature, including workers' compensation claims, of or by anyone whomsoever (collectively "CLAIMS"), resulting from or arising out of the CONSULTANT'S or the CITY'S performance or other obligations under this Agreement. The CONSULTANT and CITY shall indemnify each other only in proportion and to the extent such CLAIMS are caused by, or result from, the negligent or intentional acts or omissions of the indemnifying party, their respective officers, officials, agents, employees, and volunteers.The CITY and the CONSULTANT will cooperate reasonably in the defense of any action, and the indemnifying party shall employ competent counsel, reasonably acceptable to the indemnified party. The indemnity, defense, and hold harmless obligations contained herein shall survive the termination of this Agreement for any alleged or actual omission, act, error or negligence under this Agreement that occurred during the term of this Agreement. 17. WORKERS' COMPENSATION. The CONSULTANT shall comply with all of the provisions of the Workers' Compensation Insurance and Safety Acts of the State of California, the applicable provisions of Division 4 and 5 of the California Labor Code and all amendments thereto; and all similar State or federal acts or laws applicable; and shall indemnify, and hold harmless the CITY and its officers, employees, and volunteers from and against all claims, demands, payments, suits, actions, proceedings, and judgments of every nature and description, including reasonable attorney's fees and defense costs presented, brought or recovered against the CITY or its officers, employees, or volunteers, for or on account of any Standard Agreement Revised July 2017 Page 5of11 City of National City and Phase II Systems, dba Public Agency Retirement Services liability under any of said acts which may be incurred by reason of any work to be performed by the CONSULTANT under this Agreement. 18. INSURANCE. The CONSULTANT, at its sole cost and expense, shall purchase and maintain, and shall require its subconsultant(s), when applicable, to purchase and maintain throughout the term of this Agreement, the following insurance policies: A. ® If checked, Professional Liability Insurance (errors and omissions) with minimum limits of $1,000,000 per occurrence. B. Automobile Insurance covering all bodily injury and property damage incurred during the performance of this Agreement, with a minimum coverage of $1,000,000 combined single limit per accident. Such automobile insurance shall include owned, non -owned, and hired vehicles ("any auto"). The policy shall name the CITY and its officers, agents, employees, and volunteers as additional insureds, and a separate additional insured endorsement shall be provided. C. Commercial General Liability Insurance, with minimum limits of either $2,000,000 per occurrence and $4,000,000 aggregate, or $1,000,000 per occurrence and $2,000,000 aggregate with a $2,000,000 umbrella policy, covering all bodily injury and property damage arising out of its operations, work, or performance under this Agreement. The policy shall name the CITY and its officers, agents, employees, and volunteers as additional insureds, and a separate additional insured endorsement shall be provided. The general aggregate limit must apply solely to this "project" or "location". The "project" or "location" should be noted with specificity on an endorsement that shall be incorporated into the policy. D. Workers' Compensation Insurance in an amount sufficient to meet statutory requirements covering all of the CONSULTANT'S employees and employers' liability insurance with limits of at least $1,000,000 per accident. In addition, the policy shall be endorsed with a waiver of subrogation in favor of the CITY. Said endorsement shall be provided prior to commencement of work under this Agreement. If the CONSULTANT has no employees subject to the California Workers' Compensation and Labor laws, the CONSULTANT shall execute a Declaration to that effect. Said Declaration shall be provided to the CONSULTANT by the CITY. E. The aforesaid policies shall constitute primary insurance as to the CITY, its officers, officials, employees, and volunteers, so that any other policies held by the CITY shall not contribute to any loss under said insurance. Said policies shall provide for thirty (30) days' prior written notice to the CITY's Risk Manager, at the address listed in subsection G below, of cancellation or material change. If any policy required by this Agreement is cancelled due to non-payment, CONSULTANT must provide 10 (ten) days' notice accompanied by the reason for such cancellation. F. If required insurance coverage is provided on a "claims made" rather than "occurrence" form, the CONSULTANT shall maintain such insurance coverage for three years after expiration of the term (and any extensions) of this Agreement. In addition, the "retro" date must be on or before the date of this Agreement. G. The Certificate Holder for all policies of insurance required by this Section shall be: Standard Agreement Revised July 2017 City of National City c/o Risk Manager 1243 National City Boulevard Page 6 of 11 City of National City and Phase II Systems, dba Public Agency Retirement Services National City, CA 91950-4397 H. Insurance shall be written with only insurers authorized to conduct business in California that hold a current policy holder's alphabetic and fmancial size category rating of not less than A:VII according to the current Best's Key Rating Guide, or a company of equal financial stability that is approved by the CITY' S Risk Manager. In the event coverage is provided by non -admitted "surplus lines" carriers, they must be included on the most recent California List of Eligible Surplus Lines Insurers (LESLI list) and otherwise meet rating requirements. I. This Agreement shall not take effect until certificate(s) or other sufficient proof that these insurance provisions have been complied with, are filed with and approved by the CITY'S Risk Manager. If the CONSULTANT does not keep all of such insurance policies in full force and effect at all times during the terms of this Agreement, the CITY may elect to treat the failure to maintain the requisite insurance as a breach of this Agreement and terminate the Agreement as provided herein. J. All deductibles and self -insured retentions in excess of $10,000 must be disclosed to and approved by the CITY. K. If the CONSULTANT maintains broader coverage or higher limits (or both) than the minimum limits shown above, the CITY requires and shall be entitled to the broader coverage or higher limits (or both) maintained by the CONSULTANT. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the CITY. 19. LEGAL FEES. If any party brings a suit or action against the other party arising from any breach of any of the covenants or agreements or any inaccuracies in any of the representations and warranties on the part of the other party arising out of this Agreement, then in that event, the prevailing party in such action or dispute, whether by final judgment or out -of - court settlement, shall be entitled to have and recover of and from the other party all reasonable costs and expenses of suit, including reasonable attorneys' fees. For purposes of determining who is to be considered the prevailing party, it is stipulated that attorney's fees incurred in the prosecution or defense of the action or suit shall not be considered in determining the amount of the judgment or award. Attorney's fees to the prevailing party if other than the CITY shall, in addition, be limited to the amount of attorney's fees incurred by the CITY in its prosecution or defense of the action, irrespective of the actual amount of attorney's fees incurred by the prevailing party. 20. TERMINATION. A. This Agreement may be terminated with or without cause by the CITY. Termination without cause shall be effective only upon 60-day's written notice to the CONSULTANT. During said 60-day period the CONSULTANT shall perform all services in accordance with this Agreement. B. This Agreement may also be terminated immediately by the CITY for cause in the event of a material breach of this Agreement, misrepresentation by the CONSULTANT in connection with the formation of this Agreement or the performance of services, or the failure to perform services as directed by the CITY. Standard Agreement Revised July 2017 Page 7 of 11 City of National City and Phase II Systems, dba Public Agency Retirement Services C. Termination with or without cause shall be effected by delivery of written Notice of Termination to the CONSULTANT as provided for herein. D. In the event of termination, all finished or unfinished memoranda, reports, maps, drawings, plans, specifications, and other documents prepared by the CONSULTANT, whether paper or electronic, shall immediately become the property of and be delivered to the CITY, and the CONSULTANT shall be entitled to receive just and equitable compensation for any work satisfactorily completed on such documents and other materials up to the effective date of the Notice of Termination, not to exceed the amounts payable hereunder, and less any damages caused the CITY by the CONSULTANT'S breach, if any. Thereafter, ownership of said written material shall vest in the CITY all rights set forth in Section 8. E. The CITY further reserves the right to immediately terminate this Agreement upon: (1) the filing of a petition in bankruptcy affecting the CONSULTANT; (2) a reorganization of the CONSULTANT for the benefit of creditors; or (3) a business reorganization, change in business name or change in business status of the CONSULTANT. 21. NOTICES. All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered; or sent by overnight mail (Federal Express or the like); or sent by registered or certified mail, postage prepaid, return receipt requested; or sent by ordinary mail, postage prepaid; or telegraphed or cabled; or delivered or sent by telex, telecopy, facsimile or fax; and shall be deemed received upon the earlier of (i) if personally delivered, the date of delivery to the address of the person to receive such notice, (ii) if sent by overnight mail, the business day following its deposit in such overnight mail facility, (iii) if mailed by registered, certified or ordinary mail, five (5) days (ten (10) days if the address is outside the State of California) after the date of deposit in a post office, mailbox, mail chute, or other like facility regularly maintained by the United States Postal Service, (iv) if given by telegraph or cable, when delivered to the telegraph company with charges prepaid, or (v) if given by telex, telecopy, facsimile or fax, when sent. Any notice, request, demand, direction or other communication delivered or sent as specified above shall be directed to the following persons: To CITY: Mark Roberts Director of Finance Department of Finance City of National City 1243 National City Boulevard National City, CA 91950-4397 To CONSULTANT: Daniel Johnson President PARS 4350 Von Karman Avenue, Suite 100 Newport Beach, CA 92660 Notice of change of address shall be given by written notice in the manner specified in this Section. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given shall be deemed to constitute receipt of the notice, Standard Agreement Revised July 2017 Page 8 of 11 City of National City and Phase II Systems, dba Public Agency Retirement Services demand, request or communication sent. Any notice, request, demand, direction or other communication sent by cable, telex, telecopy, facsimile or fax must be confirmed within forty- eight (48) hours by letter mailed or delivered as specified in this Section. 22. CONFLICT OF INTEREST AND POLITICAL REFORM ACT OBLIGATIONS. During the term of this Agreement, the CONSULTANT shall not perform services of any kind for any person or entity whose interests conflict in any way with those of the City of National City. The CONSULTANT also agrees not to specify any product, treatment, process or material for the project in which the CONSULTANT has a material financial interest, either direct or indirect, without first notifying the CITY of that fact. The CONSULTANT shall at all times comply with the terms of the Political Reform Act and the National City Conflict of Interest Code. The CONSULTANT shall immediately disqualify itself and shall not use its official position to influence in any way any matter coming before the CITY in which the CONSULTANT has a fmancial interest as defined in Government Code Section 87103. The CONSULTANT represents that it has no knowledge of any financial interests that would require it to disqualify itself from any matter on which it might perform services for the CITY. ❑ If checked, the CONSULTANT shall comply with all of the reporting requirements of the Political Reform Act and the National City Conflict of Interest Code. Specifically, the CONSULTANT shall file a Statement of Economic Interests with the City Clerk of the City of National City in a timely manner on forms which the CONSULTANT shall obtain from the City Clerk. The CONSULTANT shall be strictly liable to the CITY for all damages, costs or expenses the CITY may suffer by virtue of any violation of this Section 22 by the CONSULTANT. 23. PREVAILING WAGES. State prevailing wage rates may apply to work performed under this Agreement. State prevailing wages rates apply to all public works contracts as set forth in California Labor Code, including but not limited to, Sections 1720,1720.2, 1720.3, 1720.4, and 1771. The CONSULTANT is solely responsible to determine if State prevailing wage rates apply and, if applicable, pay such rates in accordance with all laws, ordinances, rules, and regulations. 24. MISCELLANEOUS PROVISIONS. A. Computation of Time Periods. If any date or time period provided for in this Agreement is or ends on a Saturday, Sunday or federal, state or legal holiday, then such date shall automatically be extended until 5:00 p.m. Pacific Time of the next day which is not a Saturday, Sunday or federal, state, or legal holiday. B. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute but one and the same instrument. C. Captions. Any captions to, or headings of, the sections or subsections of this Agreement are solely for the convenience of the parties hereto, are not a part of this Agreement, and shall not be used for the interpretation or determination of the validity of this Agreement or any provision hereof. D. No Obligations to Third Parties. Except as otherwise expressly provided herein, the execution and delivery of this Agreement shall not be deemed to confer any rights upon, or obligate any of the parties hereto, to any person or entity, other than the parties hereto. Standard Agreement Revised July 2017 Page 9 of 11 City of National City and Phase II Systems, dba Public Agency Retirement Services E. Exhibits and Schedules. The Exhibits and Schedules attached hereto are hereby incorporated herein by this reference for all purposes. To the extent any exhibits,schedules, or provisions thereof conflict or are inconsistent with the terms and conditions contained in this Agreement, the terms and conditions of this Agreement shall control. F. Amendment to this Agreement. The terms of this Agreement may not be modified or amended except by an instrument in writing executed by each of the parties hereto. G. Waiver. The waiver or failure to enforce any provision of this Agreement shall not operate as a waiver of any future breach of any such provision or any other provision hereof. H. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. I. Audit. If this Agreement exceeds ten -thousand dollars ($10,000), the parties shall be subject to the examination and audit of the State Auditor for a period of three (3) years after final payment under the Agreement, per Government Code Section 8546.7. J. Entire Agreement. This Agreement supersedes any prior agreements, negotiations and communications, oral or written, and contains the entire agreement between the parties as to the subject matter hereof. No subsequent agreement, representation, or promise made by either party hereto, or by or to an employee, officer, agent or representative of any party hereto shall be of any effect unless it is in writing and executed by the party to be bound thereby. K. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto. L. Subcontractors or Subconsultants. The CITY is engaging the services of the CONSULTANT identified in this Agreement. The CONSULTANT shall not subcontract any portion of the work, unless such subcontracting was part of the original proposal or is allowed by the CITY in writing. In the event any portion of the work under this Agreement is subcontracted, the subconsultant(s) shall be required to comply with and agree to, for the benefit of and in favor of the CITY, both the insurance provisions in Section 18 and the indemnification and hold harmless provision of Section 16 of this Agreement. M. Construction. The parties acknowledge and agree that (i) each party is of equal bargaining strength, (ii) each party has actively participated in the drafting, preparation and negotiation of this Agreement, (iii) each such party has consulted with or has had the opportunity to consult with its own, independent counsel and such other professional advisors as such party has deemed appropriate, relative to any and all matters contemplated under this Agreement, (iv) each party and such party's counsel and advisors have reviewed this Agreement, (v) each party has agreed to enter into this Agreement following such review and the rendering of such advice, and (vi) any rule or construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement, or any portions hereof, or any amendments hereto. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first above written. Standard Agreement Page 10 of 11 City of National City and Revised July 2017 Phase II Systems, dba Public Agency Retirement Services CITY OF NATIONAL CITY PHASE II SYSTEMS, A CALIFORNIA CORPORATION D.B.A. "PUBLIC AGENCY RETIREMENT SERVICES" By: Leslie Deese, City Manager B APPROVED AS TO FORM: Angil P. Morris -Jones City Attorney (Print) President By: By: Tod Hammeras Roberto M. Contreras Deputy City Attorney (Print) Chief Financial Officer Standard Agreement Page 11 of 11 City of National City and Revised July 2017 Phase II Systems, dba Public Agency Retirement Services EXHIBIT A PUBLIC AGENCY RETIREMENT SERVICES SCOPE OF SERVICES The CONSULTANT will provide the following services for the City of National City's irrevocable supplemental pension trust plan ("Plan"): 1. Plan Installation Services: A. Meeting with appropriate CITY personnel to discuss Plan provisions, implementation timelines, the actuarial valuation process, funding strategies, benefit communication strategies, data reporting, and submission requirements for contributions, reimbursements, and distributions; B. Providing necessary analysis and advisory services to fmalize the elements of Paragraph 1(A) of this Exhibit A; C. Providing all documents needed to create the Plan for review and approval by the City Attorney. Resulting final Plan documents must be approved by the CITY before the commencement of Plan Administration Services outlined in Paragraph 2 below. 2. Plan Administration Services: A. Monitoring the receipt of Plan contributions made by the CITY to the trustee of the Trust ("Trustee"), based upon information received from the CITY and the Trustee; B. Performing periodic accounting of Plan assets, reimbursements/distributions, and investment activity, based upon information received from the CITY and/or Trustee; C. Coordinating the processing of distribution payments pursuant to authorized direction by the CITY, and the provisions of the Plan, and, to the extent possible, based upon CITY - provided Data; D. Coordinating actions with the Trustee as directed by the Plan Administrator within the scope the Agreement; E. Preparing and submitting a monthly report of Plan activity to the CITY, unless directed by the CITY otherwise; F. Conducting an annual in -person client review to provide a full administrative and investment review of the Plan and to ensure the CITY'S ongoing satisfaction with its participation in the Plan. G. Conducting in -person or over -the -phone meetings more frequently, if requested by the CITY. H. Providing updates of the Plan to the City Council during one of its public meetings, if requested by the CITY. I. Preparing and submitting an annual report of Plan activity to the CITY; Page 1 of 2 J. Facilitating actuarial valuation updates and funding modifications for compliance with GASB 45/75, if prefunding OPEB obligations; K. Coordinating periodic audits of the Plan; L. Monitoring Plan and Trust compliance with federal and state laws. 3. The CITY acknowledges that PARS is not licensed to provide, and does not offer tax, accounting, legal, investment, or actuarial advice. Page 2 of 2 EXHIBIT B PUBLIC AGENCY RETIREMENT SERVICES RATES TO PERFORM PENSION TRUST ADMINISTRATION SERVICES CONSULTANT will be compensated for performance of Services, as described in Exhibit A based upon the following schedule: ANNUAL ASSET FEE For Plan Asset Balances from $0 to $10,000,000 $10,000,001 to $15,000,000 $15,000,001 to $50,000,000 $50,000,001 and above Annual Rate 0.25% 0.20% 0.15% 0.10% Annual Rates are prorated and paid monthly. The annual asset fee shall be calculated by the following formula: Annual Rate divided by 12 (months of the year) multiplied by the Plan asset balance at the end of the month. TRUSTEE & INVESTMENT MANAGEMENT FEES Trustee and investment management fees are not included in the annual asset fees stated above. Trustee and investment management services are provided under a separate agreement with US Bank, and trustee and investment management fees are paid to US Bank. These fees include investment policy development, asset allocation recommendations, asset management, and all custodial services and are based upon the following schedule: For Plan Asset Balances froni $0 to $5,000,000 $5,000,001 to $10,000,000 $10,000,001 to $15,000,000 $15,000,001 to $50,000,000 $50,000,001 and above Annual Rate 0.35% 0.25% 0.20% 0.15% 0.10% Annual Rates are prorated and paid monthly. Annual trustee and investment management fees shall be calculated by the following formula: Annual Rate divided by 12 (months of the year) multiplied by the Plan asset balance at the end of the month. Both the annual asset fees and trustee and investment management fees shall be deducted from Plan assets. Page 1 of 1 EXHIBIT C PUBLIC AGENCY RETIREMENT SERVICES DATA REQUIREMENTS CONSULTANT will provide all services required under this Agreement upon receiving the following information: 1. Executed legal documents: A. certified resolution B. adoption agreement to the Plan C. trustee investment forms 2. Contribution — completed Contribution Transmittal Form signed by the Plan Administrator (or authorized designee) which contains the following information: A. agency name B. contribution amount C. contribution date D. contribution method (check, ACH, wire) 3. Distribution — completed Transfer/Payment/Reimbursement Form signed by the Plan Administrator (or authorized designee) which contains the following information: A. agency name B. payment reimbursement/distribution amount C. applicable statement date D. copy of applicable premium, claim, statement, warrant, and/or administrative expense evidencing payment E. signed certification of reimbursement/distribution from the Plan Administrator (or authorized designee) 4. Other information pertinent to the CONSULTANT'S services as reasonably requested by the CONSULTANT and the CITY'S actuarial provider. Page 1 of 1 PUBLIC AGENCIES POST -EMPLOYMENT HEALTH CARE PLAN MASTER PLAN DOCUMENT (Effective as of November 5, 2014) INTRODUCTION The Employer specified in the Adoption Agreement has adopted this qualified governmental post -employment health care plan ("OPEB Plan") for the benefit of its Eligible Employees. The plan document for the OPEB Plan consists of this Master Plan Document plus the Adoption Agreement. Assets of the OPEB Plan are held under a trust (the "Trust") evidenced by a trust agreement (the "Trust Agreement"). Each Employer's separate portion of the Trust dedicated to funding the Employer's OPEB Obligation and defraying the reasonable expenses associated with the same is referred to as the Employer's "OPEB Account." Capitalized terms that are not defined herein shall have the meaning attributed to such terms in the Trust Agreement. The Trust is established with the intention that it qualify as a tax-exempt trust performing an essential governmental function within the meaning of Section 115 of the Code and any regulations issued thereunder and as a tax-exempt trust under the provisions of the relevant state's statutory provisions of each Employer. It is intended that contributions to the Employer's OPEB Account shall qualify as "plan assets" within the meaning of GASB Statement No. 45 (Accounting and Financial Reporting by Employers for Postemployment Benefits Other Than Pensions). At any time prior to the satisfaction of all liabilities with respect to Eligible Employees under an Employer's OPEB Account, the OPEB Account assets shall not be used for, or diverted to, any purpose other than funding the Employer's OPEB Obligation and defraying the reasonable expenses associated with the same. Page 1 of 6 ARTICLE I PLAN AND TRUST INFORMATION 1.1 Plan Name. The name of the OPEB Plan adopted by the Employer is the Public Agencies Post -Employment Health Care Plan. 1.2 Effective Date. The OPEB Plan is effective as of the date set forth in Section A.3.1.2 of the Adoption Agreement. If this OPEB Plan is a restatement of an existing plan, that date is also the effective date of the restatement. 1.3 Plan Year. The plan year for the OPEB Plan shall be the consecutive twelve-month period beginning on January 1 and ending on December 31. ARTICLE II EMPLOYER INFORMATION 2.1 Employer. The name and address of the Employer sponsoring this OPEB Plan (the `Employer") are as set forth in Section A.2.1 of the Adoption Agreement. The Adoption Agreement can only be used by a governmental agency that is a state, a political subdivision of a state, or an entity the income of which is excludible from gross income under Section 115 of the Code to establish a plan. ARTICLE III ELIGIBLE EMPLOYEES 3.1 Eligible Personas Each employee of the Employer who is or becomes eligible for post -employment health care and welfare benefits as specified in such Employer'sapplicable policies and/or applicable collective bargaining agreements is an Eligible Employee under this OPEB Plan. In addition, any person who, due to his or her relationship with the Eligible Employee, is entitled to post -employment health care and welfare benefits as specified in the Employer's applicable policies and/or collective bargaining agreement, is an Eligible Beneficiary under this OPEB Plan. Page 2 of 6 3.2 Termination of Eligible Status An Eligible Employee or Eligible Beneficiary shall cease to be an Eligible Employee or Eligible Beneficiary as specified in the Employer's applicable policies and/or applicable collective bargaining agreements. ARTICLE IV CONTRIBUTIONS 4.1 Amount of Member Agency Contributions Eligible Employees and Eligible Beneficiaries are not permitted to make contributions to the Trust, provided however, that nothing herein shall be deemed to (i) prevent the Employer from imposing a charge (including, without limitation, a payroll deduction) for coverage under the OPEB Plan, or (ii) prevent the Employer from depositing the proceeds of any such charge to the Trust (provided that such deposit shall be considered an Employer contribution and shall not be segregated within Employer's OPEB Account from any other Employer contributions). Each Employer shall from time -to -time contribute to its OPEB Account an amount determined by such Employer in its sole discretion. Such amount may, but need not, equal such Employer's "annual required contribution" ("ARC") as determined in accordance with GASB 45. 4.2 Administrative Expenses The Employer may make contributions to its OPEB Account sufficient to defray all or part of the expenses of administering the OPEB Plan or may pay such expenses directly. 4.3 Allocation of Administrative Expenses If the Employer chooses not to directly pay the expenses of administering this OPEB Plan, such expenses shall be charged against the OPEB Account for such Employer. 4.4 Reversions The Employer shall have the right to a return of contributions from this OPEB Plan only if the conditions for such return set forth in the Trust Agreement are satisfied. Page 3 of 6 ARTICLE V DISTRIBUTION OF BENEFITS 5.1 Payment of Distribution Distribution shall only be made to the insurers, third party administrators, service providers, or other entities providing benefits or services under the OPEB Plan, or to Eligible Employees and Eligible Beneficiaries for reimbursement of OPEB Plan premiums (or other payments for OPEB Plan benefits) paid by the Eligible Employee or Eligible Beneficiary, or to the Employer for the reimbursement of OPEB Plan benefits and expenses paid by the Employer. The Plan Administrator or its Delegatee shall provide instructions to the Trustee regarding how distributions and reimbursements are to be made. ARTICLE VI FUNDING AND INVESTMENT 6.1 Funding and Investment The assets of the OPEB Plan shall be held in the OPEB Account of each Employer. In Section A.4.2.1 of the Adoption Agreement, each Employer shall elect between a discretionary or directed investment approach. If the Employer elects a discretionary investment approach, the Employer shall further elect between the various investment strategies offered in the investment strategy selection and disclosure form. If the Employer elects a directed investment approach, the Employer, in accordance with the Trust Agreement, shall have absolute discretion over the investment of the assets of its OPEB Account. 6.2 Type and Nature of Plan and Trust Neither the faith and credit nor the taxing power of each Employer is pledged to the distribution of benefits hereunder. Except for contributions, earnings and other amounts held in the Trust, no amounts are pledged to the distribution of benefits hereunder. Distributions of benefits are neither general nor special obligations of the Employer, but are payable solely from contributions, as more fully described herein. No employee of any Employer or any other person may compel the exercise of the taxing power by the Employer. Distributions of benefits are not a debt of the Employer within the meaning of any constitutional or statutory limitation or restriction. Distributions are not a legal or equitable pledge, charge, lien or encumbrance, upon any of the Employer's property, or upon any of its income, receipts or revenues. Page 4of6 ARTICLE VII ADMINISTRATION, AMENDMENT AND TERMINATION OF PLAN 7.1 Designation of Plan Administrator In Section A.2.2 of the Adoption Agreement, the Employer shall provide the name of the Plan Administrator that has been duly authorized and designated by the governing body of the Employer to act on its behalf in all matters pertaining to the OPEB Plan and the Trust pursuant to Section 3.4 of the Trust Agreement. If no name is provided, the Employer is the Plan Administrator. In addition to a Plan Administrator the Employer may designate a Delegatee to perform those activities relating to the OPEB Plan as specified in the written appointment of such Delegatee certified to the Trust Administrator. Except where the context requires otherwise, the term "Employer" as used in this Article shall mean the Plan Administrator or Delegatee where responsibility for administration of the OPEB Plan has been given to such parties. 7.2 Rules and Regulations The Employer has full discretionary authority to supervise and control the operation of this OPEB Plan in accordance with its terms and may make rules and regulations for the administration of this OPEB Plan that are not inconsistent with the terms and provisions hereof. The Employer shall determine any questions arising in connection with the interpretation, application or administration of the OPEB Plan (including any question of fact relating to age, employment, compensation or eligibility of Eligible Employees or Eligible Beneficiaries) and its decisions or actions in respect thereof shall be conclusive and binding upon all persons and parties. The Employer shall have all powers necessary to accomplish its purposes, including, but not by way of limitation, the following: (a) To determine all questions relating to an Eligible Employee's or Eligible Beneficiary's eligibility; (b) To construe and interpret the terms and provisions of the OPEB Plan; (c) To compute, certify to, and direct the Trustee with regard to the amount and kind of benefits payable to health care providers; (d) To authorize all disbursements from its OPEB Account; (e) To maintain all records that may be necessary for the administration of the OPEB Plan other than those maintained by the Trustee; and (f) To appoint a Plan Administrator or, any other agent, and to delegate to them or to the Trustee such powers and duties in connection with the administration of the OPEB Plan as it may from time to time prescribe. Page 5 of 6 Expenses and fees incurred in connection with the administrationof the OPEB Plan and the Trust shall be paid from the Trust assets to the fullest extent permitted by law, unless the Employer determines otherwise. The Employer may elect to make contributions to its OPEB Account sufficient to defray the expenses of administering the OPEB Plan or may pay such expenses directly. 7.3 Amendment and Termination The Employer shall have the right to amend, modify or terminate the OPEB Plan at any time. If an Employer terminates the OPEB Plan, the Assets held in its OPEB Account shall be distributed by the Trustee as provided in Section 7.3 of the Trust Agreement. ARTICLE VIII MISCELLANEOUS 8.1 Nonalienation An Eligible Employee or Eligible Beneficiary does not have any interest in the OPEB Plan or the Assets held in the Trust. Accordingly, the Trust shall not in any way be liable to attachment, garnishment, assignment or other process, or be seized, taken, appropriated or applied by any legal or equitable process, to pay any debt or liability of an Eligible Employee, Eligible Beneficiary or any other party. 8.2 Investment All contributions, interest earned, and any assets of the OPEB Plan shall at all times be invested and managed in accordance with the Trust Agreement and the requirements of applicable law. 8.3 Parties to the Plan Eligible Employees, Eligible Beneficiaries and unions of each Employer are not parties to this OPEB Plan. The OPEB Plan is only a funding source for such Employer's post -employment health care and welfare benefits and does not increase the rights of any Eligible Employee, Eligible Beneficiary or union. 8.4 Confidential Medical Information Each Employer and its health care providers or other service providers shall not share confidential medical information regarding employees of the Employer with the OPEB Plan, the Trustee, or the Trust Administrator. Page 6 of 6 PUBLIC AGENCIES POST -EMPLOYMENT BENEFITS TRUST AGREEMENT (Effective November 5, 2014) ARTICLE I DEFINITIONS 1.1 "Adoption Agreement" shall have the meaning given to such term in Section 2.3. 1.2 "Agency Account" shall have the meaning given to such term in Section 2.4. 1.3 "Agreement for Administrative Services" shall mean the agreement executed between the Employer and the Trust Administrator which authorizes the Trust Administrator to perform specific duties of administering the Agency Account of the Employer. 1.4 "Assets" shall have the meaning given to such term in Section 2.5. 1.5 "Code" shall mean the Internal Revenue Code of 1986 as amended from time to time. 1.6 "Delegatee" shall mean an individual or entity, appointed by the Plan Administrator or Employer to act in such matters as are specified in the appointment. 1.7 "Effective Date" shall mean the date first written above, the date the Trust was established, and with respect to each Employer, the Effective Date shall be the date on which the Employer executes the Adoption Agreement. 1.8 "Eligible Beneficiary" shall mean any person who, due to his or her relationship to an Eligible Employee, is entitled to post -employment benefits pursuant to the Employer's Pension Plan or OPEB Plan, including but not limited to the Eligible Employee's current or former spouse or domestic partner, child, dependent, or survivor. 1.9 "Eligible Employee" shall mean any employee of an Employer who is entitled to post -employment benefits pursuant to the Employer's Pension Plan or OPEB Plan. Unless the context otherwise requires, the term "Eligible Employee" as used herein shall include any Eligible Beneficiaries. 1.10 "Employer" shall mean a public agency that executes the Adoption Agreement, thereby adopting the provisions of this Trust Agreement, provided that such agency is a state, a political subdivision of a state, or an entity the income of which is excludible from gross income under Section 115 of the Code. 1.11 "GASB" shall mean the Governmental Accounting Standards Board. 1.12 "Omnibus Account" shall mean an account, established for record keeping purposes only, to aggregate the balances of the Assets credited to the Agency Accounts. The Trust Administrator shall maintain and reconcile, at the Agency Account level (and subaccount level), the investments of the Agency Accounts Page 1 of 25 and will provide reports to the Plan Administrator with respect to such investments. The Trustee will maintain a record of the aggregate balance (principal and earnings) for all Agency Accounts. The Trust Administrator will in the ordinary course of business maintain a record of the name, address, taxpayer identification number, account number and amount of funds, including earnings, of each Employer. On periodic valuation dates (no less frequently than monthly) to be established by the Trust Administrator, the Trustee and Trust Administrator will reconcile the aggregate balance information maintained by the Trustee with the Agency Account level records maintained by the Trust Administrator pursuant to this Trust Agreement. 1.13 "OPEB" shall mean "other post -employment benefits," such as medical, dental, vision, life insurance, long-term care and other similar benefits provided to retirees, other than pension benefits. 1.14 "OPEB Obligation" shall mean an Employer's obligation to provide OPEB to its Eligible Employees in accordance with the Employer's OPEB Plan. 1.15 "OPEB Plan" shall mean the Public Agencies Post -Employment Health Care Plan, as adopted by the Employer under the Adoption Agreement. 1.16 "Pension Obligation" shall mean an Employer's obligation to contribute to the Pension Plan's Qualified Trust and shall not, for example, mean an Employer's Obligation to provide retirement benefits under the Pension Plan to the Employer's Eligible Employees. 1.17 "Pension Plan" shall mean an Employer's defined -benefit pension plan or plans, each of which is (i) qualified under Section 401(a) of the Code, (ii) sponsored by the Employer in order to provide retirement benefits to its Eligible Employees, and (iii) partly or wholly funded by the Employer's contributions to a Qualified Trust. 1.18 "Plan Administrator" shall mean the individual designated by position of employment at the Employer to act on its behalf in all matters relating to the Employer's participation in the Trust. 1.19 "Qualified Trust" shall mean a trust which (i) is separate and apart from the Trust, (ii) constitutes a qualified trust under Code Section 401(a), and (iii) funds retirement benefits provided under an Employer's Pension Plan to the Employer's Eligible Employees. 1.20 "Trust" shall mean the Public Agencies Post -Employment Benefits trust arrangement. 1.21 "Trust Administrator" shall mean Public Agency Retirement Services or any successor trust administrator appointed by the Employers as provided herein. The Trust Administrator shall serve as trust administrator to the Trust established Page 2 of 25 pursuant to this Trust Agreement until such Trust Administrator resigns or is removed as provided in Article III. 1.22 "Trust Agreement" shall mean this Public Agencies Post -Employment Benefits trust document adopted by each Employer upon execution of an Adoption Agreement, as amended from time to time. 1.23 "Trustee" shall mean U.S. Bank National Association, or any successor trustee appointed by the Employers as provided herein. The Trustee shall serve as trustee of the Trust established pursuant to the provisions of this Trust Agreement until such Trustee resigns or is removed as provided in Article III. ARTICLE II THE TRUST 2.1 Multiple Employer Trust The Trust is a multiple employer trust arrangement established to provide economies of scale and efficiency of administration to public agencies that adopt it to hold the assets used to fund the agency's OPEB Obligation or Pension Obligation or both. The Trust is divided into Agency Accounts to hold the Assets of each Employer as described in Section 2.4. 2.2 Purpose The Trust is established with the intention that it qualify as a tax-exempt trust performing an essential governmental function within the meaning of Section 115 of the Code and any regulations issued thereunder and as a tax-exempt trust under the provisions of the relevant state's statutory provisions of each Employer. This Trust Agreement shall be construed and the Trust shall be administered in a manner consistent with such intention. The fundamental purpose of the Trust is to fund the Employer's OPEB Obligation or Pension Obligation or both. It is intended that adopting Employers retain an interest in the underlying securities held in the Trust on their behalf, rather than in the Trust itself. The Employer hereby represents and warrants that the assets held hereunder (including the Assets) are not assets of any qualified plan under Code Section 401(a), regardless of the character of such assets once distributed. The Employer hereby acknowledges that the Trust does not constitute a qualified trust under Code Section 401(a). 2.3 Employers Any public agency may, by action of its governing body in writing accepted by the Trustee, adopt the provisions of the Trust Agreement. Executing an adoption instrument for the Trust ("Adoption Agreement"), in the form attached hereto as Exhibit "A" (or such other form as may be approved by the Trustee), shall Page 3 of 25 constitute such adoption, unless the Trustee requires additional evidence of adoption. In order for such adoption to be effective, the public agency must also execute an Agreement for Administrative Services with Public Agency Retirement Services, the Trust Administrator, pursuant to Section 3.6 of this Trust Agreement. Such adopting Employer shall then become an Employer of the Trust. Each such Employer shall, at a minimum, furnish the Trust Administrator with the following documents to support its adoption of the Trust: (a) a certified copy of the resolution(s) of the governing body of the Employer authorizing the adoption of the Trust Agreement and the appointment of the Plan Administrator for such Employer; (b) an original of the Adoption Agreement executed by the Plan Administrator or other duly authorized Employer employee; (c) an original of the Agreement for Administrative Services with Public Agency Retirement Services executed by the Plan Administrator or other duly authorized Employer employee and Public Agency Retirement Services; (d) an address notice; and (e) such other documents as the Trustee may reasonably request. (f) Any action taken by the Plan Administrator for an Employer shall be deemed to have been taken by such Employer. Any notice given to or delivered by the Plan Administrator for an Employer shall be deemed to have been given to or delivered by such Employer. 2.4 Agency Accounts (a) Upon an Employer's adopting the Trust Agreement, as provided in Section 2.3, a separate "Agency Account" shall be established under the Trust for that Employer, and all Assets of the Trust attributable to that Employer shall be held in that Employer's Agency Account. (b) An Employer's Agency Account comprises three subaccounts: a "Pension Account", an "OPEB Account", and a "Suspense Account". The Assets of the Trust that are held in the Employer's Pension Account will be available only to fund the Employer's Pension Obligation and defray the reasonable expenses associated with the same. The Assets of the Trust that are held in the Employer's OPEB Account will be available only to fund the Employer's OPEB Obligation and defray the reasonable expenses associated with the same. (c) The Assets of the Trust that are held in an Employer's Agency Account shall not be available to pay any obligations incurred by any other Employer as provided in Section 2.8. Page 4 of 25 (d) All contributions and transfers received by the Trust on behalf of the Employer will be held in the Employer's Agency Account and will be allocated to the subaccounts under the Agency Account as follows: (1) If the Employer maintains a Pension Account or OPEB Account (and not both a Pension Account and an OPEB Account), all contributions and transfers received by the Trust on the Employer's behalf will be allocated to that subaccount. (2) If the Employer maintains both a Pension Account and an OPEB Account, contributions and transfers received by the Trust on the Employer's behalf will be allocated to either the Pension Account or OPEB Account, as directed by the Plan Administrator. To the extent the Plan Administrator does not provide such direction, the Employer hereby directs the Trustee to allocate such contributions and transfers to the Suspense Account and to use the assets of the Suspense Account to purchase a position in the sweep vehicle identified on an exhibit hereto or, if none is identified, to hold such assets un-invested. The Plan Administrator may at any time direct the reallocation of cash from the Suspense Account to either the Pension Account or the OPEB Account. (3) Once allocated to the Pension Account or the OPEB Account, amounts under the Trust may not subsequently be transferred to the other subaccount. 2.5 Assets of Agency Account The assets held in an Agency Account shall consist of all contributions and transfers received by the Trust on behalf of the Employer, together with the income and earnings from such contributions and transfers, and any increments accruing to the Agency Account, net of any investment losses, benefits, expenses or other costs ("Assets"). All contributions or transfers shall be received by the Trustee in cash or in other property acceptable to the Trustee. The Trustee shall manage and administer the Assets held in Agency Accounts without distinction between principal and income. The Trustee and the Trust Administrator shall have no duty to compute any amount to be transferred or paid to the Agency Account by the Employer, and the Trustee and the Trust Administrator shall not be responsible for the collection of any contributions or transfers to the Agency Account. 2.6 Aggregate Balance for Investment and Administration The balances of the Assets of more than one Agency Account may be aggregated by the Trustee in one or more Omnibus Accounts for investment and administrative purposes, to provide economies of scale and efficiency of administration to the Agency Accounts. The responsibility for Agency Account level accounting (including subaccount-level accounting within each Agency Account) within this Omnibus Account(s) shall be that of the Trust Administrator. Page 5 of 25 2.7 Trustee Accounting The Trustee shall be responsible only for maintaining records and maintaining accounts for the aggregate assets of the Trust. The responsibility for accounting and subaccounting for each Agency Account, based upon the Omnibus Account(s), shall be that of the Trust Administrator. 2.8 No Diversion of Assets The Assets in each Employer's Agency Account shall be held in trust for the exclusive purpose of funding the Employer's OPEB Obligation or Pension Obligation or both and defraying the reasonable expenses associated with the same. The Assets in each Agency Account shall not be used for or diverted to, any other purpose, including, but not limited to, the satisfaction of any other Employer's Pension Obligation or OPEB Obligation. 2.9 Type and Nature of Trust Neither the full faith and credit nor the taxing power of each Employer is pledged to the distribution of amounts hereunder. Except for contributions and other amounts hereunder, no other amounts are pledged to the distribution of benefits hereunder. Distributions of benefits are neither general nor special obligations of any Employer, but are payable solely from the Assets held in such Employer's Agency Account, as more fully described herein. No employee of any Employer or beneficiary may compel the exercise of the taxing power by any Employer. Distributions of Assets from any Agency Account are not debts of any Employer within the meaning of any constitutional or statutory limitation or restriction. Such distributions are not legal or equitable pledges, charges, liens or encumbrances, upon any of an Employer's property, or upon any of its income, receipts, or revenues, except amounts in the accounts which are, under the terms of each Plan and the Trust set aside for distributions. Neither the members of the governing body of any Employer nor its officers, employees, agents or volunteers are liable hereunder. 2.10 Loss of Tax -Exempt Status as to Any Employer If any Employer participating in the Trust receives notice from the Internal Revenue Service that the Trust as to such Employer fails to satisfy the requirements of Section 115 of the Code, or if any Employer consents to the Internal Revenue Service's determination that the Trust fails to meet such requirements, Assets having a value equal to the funds then held in such Employer's Agency Account shall be segregated and placed in a separate trust by the Trustee for the exclusive benefit of such Employer's Eligible Employees within a reasonable time after the Trust Administrator notifies the Trustee of the Internal Revenue Service's determination. Each Employer participating in the Trust agrees to immediately notify the Trust Administrator upon receiving such Page 6 of 25 notice or giving such consent. The separate trust provided for in this Section 2.10 shall thereafter be considered as a separate trust containing all of the provisions of this Trust Agreement until terminated as provided in this Trust Agreement. ARTICLE III ADMINISTRATIVE MATTERS 3.1 Appointment of Trustee The Employers may, with the approval of two-thirds (2/3) or more of the Employers then participating in the Trust, act to appoint a bank, trust company, retirement board, insurer, committee or such other entity as permitted by law, to serve as the trustee of this Trust. Such action must be in writing. Upon the written acceptance of such entity it shall become the Trustee of the Trust. If the Trustee is removed or resigns pursuant to Section 3.2, the Employers shall appoint a successor Trustee in accordance with the voting requirements set forth in this Section 3.1. 3.2 Resignation or Removal of Trustee The Employers may act to remove the Trustee, provided that such action must satisfy the voting requirements set forth in Section 3.1 and notice of such action must be promptly delivered to the Trust Administrator, the Trustee and each Plan Administrator. The Trustee may also resign at any time by giving at least ninety (90) days prior written notice to the Trust Administrator and to the Plan Administrator of each Employer that has adopted the Trust Agreement and not terminated its participation in the Trust; provided, however, that the Trustee may resign immediately upon the earlier of the approval date or the effective date of any amendment of the Trust Agreement by the Employers that would change or modify the duties, powers or liabilities of the Trustee hereunder without the Trustee's consent. The Trustee shall, upon the appointment and acceptance of a successor trustee, transfer and deliver the Assets and all records relating to the Trust to the successor, after reserving such reasonable amount as it shall deem necessary to provide for its fees and expenses and any sums chargeable against the Trust for which it may be liable. The Trustee shall do all acts necessary to vest title of record in the successor trustee. 3.3 Withdrawal of Employer An Employer may elect to withdraw from the Trust by giving at least thirty (30) days prior written notice to the Trustee and the Trust Administrator. If an Employer so elects to withdraw, Assets having a value equal to the funds held in such Employer's Agency Account shall be segregated by the Trustee and, as soon as practicable, shall be transferred to one or more trusts maintained by the Employer, provided that (i) for Assets transferred from the OPEB Account, any such trust shall satisfy the requirements of Section 115 of the Code, (ii) for Assets Page 7 of 25 transferred from the Pension Account, any such trust shall satisfy the requirements of either Section 115 or 401(a) of the Code, and (iii) all assets held by any such trust and previously held in the Employer's Pension Account or OPEB Account shall qualify as "plan assets" within the meaning of GASB Statement No. 68 (Accounting and Financial Reporting for Pensions An Amendment of GASB Statement No. 27) or GASB Statement No. 45 (Accounting and Financial Reporting by Employers for Postemployment Benefits Other Than Pensions), respectively, in each case as reasonably determined by the Employer and certified in writing by the Employer to the Trust Administrator. The Employer shall appoint a trustee for such Employer's separate trust and, upon the trustee's acceptance of that appointment, the trustee will be vested with title to the transferred Assets. 3.4 The Plan Administrator The governing body of each Employer shall have plenary authority for the administration and investment of such Employer's Agency Account pursuant to any applicable state laws and applicable federal laws and regulations. Each Employer shall by resolution designate a Plan Administrator. Unless otherwise specified in the instrument the Plan Administrator shall be deemed to have authority to act on behalf of the Employer in all matters pertaining to the Employer's participation in the Trust and in regard to the Agency Account of the Employer. Such appointment of a Plan Administrator shall be effective upon receipt and acknowledgment by the Trustee and the Trust Administrator and shall be effective until the Trustee and the Trust Administrator are furnished with a resolution of the Employer that the appointment has been modified or terminated. 3.5 Failure to Appoint Plan Administrator If a Plan Administrator is not appointed, or such appointment lapses, the Employer shall be deemed to be the Plan Administrator. As used in this document the term "Plan Administrator" shall be deemed to mean "Employer" when a Plan Administrator has not been appointed for such Employer. 3.6 Delegatee The Plan Administrator, acting on behalf of the Employer, may delegate certain authority, powers and duties to a Delegatee to act in those matters specified in the delegation. Any such delegation must be in a writing that names and identifies the Delegatee, states the effective date of the delegation, specifies the authority and duties delegated, is executed by the Plan Administrator, is acknowledged in writing by the Delegatee, and is certified as required in Section 3.7 to the Trust Administrator. Such delegation shall be effective until the Trustee and the Trust Administrator are directed in writing by the Plan Administrator that the delegation has been rescinded or modified. Page 8 of 25 3.7 Certification to Trustee The governing body of each Employer, or other duly authorized official, shall certify in writing to the Trustee and the Trust Administrator the names and specimen signatures of the Plan Administrator and Delegatee, if any, and all others authorized to act on behalf of the Employer whose names and specimen signatures shall be kept accurate by the Employer acting through a duly authorized officer or governing body of the Employer. The Trustee and the Trust Administrator shall have no liability if they act upon the direction of a Plan Administrator or Delegatee that has been duly authorized, as provided in Section 3.6, if that Plan Administrator or Delegatee is no longer authorized to act, unless the Employer has informed the Trustee and the Trust Administrator of such change. 3.8 Directions to Trustee All directions to the Trustee from the Plan Administrator or Delegatee must be in writing and must be signed by the Plan Administrator or Delegatee, as the case may be. For all purposes of this Trust Agreement, direction shall include any certification, notice, authorization, application or instruction of the Plan Administrator, Delegatee or Trustee appropriately communicated. The above notwithstanding, direction may be implied if the Plan Administrator or Delegatee has knowledge of the Trustee's intentions and fails to file written objection. The Trustee shall have the power and duty to comply promptly with all proper directions of the Plan Administrator or Delegatee, appointed in accordance with the provisions of this Trust Agreement. In the case of any direction deemed by the Trustee to be unclear or ambiguous the Trustee may seek written instructions from the Plan Administrator, the Employer or the Delegatee on such matter and await their written instructions without incurring any liability. If at any time the Plan Administrator or the Delegatee should fail to give directions to the Trustee, the Trustee may act in the manner that in its discretion seems advisable under the circumstances for carrying out the purposes of the Trust and/or the applicable Agency Account which may include not taking any action. The Trustee may request directions or clarification of directions received and may delay acting until clarification is received. In the absence of timely direction or clarification, or if the Trustee considers any direction to be a violation of the Trust Agreement or any applicable law, the Trustee shall in its sole discretion take appropriate action, or refuse to act upon a direction. 3.9 Appointment of Trust Administrator The Employers may, with the approval of two-thirds (2/3) or more of the Employers then participating in the Trust, act to appoint a bank, trust company, retirement board, insurer, committee or such other entity as permitted by law, to serve as Trust Administrator of the Trust. Such action must be in writing. Upon the written acceptance of such entity it shall become the Trust Administrator of Page 9 of 25 the Trust. If the Trust Administrator is removed or resigns pursuant to Section 3.13, the Employers shall appoint a successor Trust Administrator in accordance with the voting requirements set forth in this Section 3.9. 3.10 Trust Administrator The Trust Administrator's duties involve the performance of the following services pursuant to the provisions of this Trust Agreement and the Agreement for Administrative Services: (a) Performing periodic accounting of each Agency Account (including subaccount-level accounting within each Agency Account) and reconciling such Agency Account balances with the Trust/Omnibus Account; (b) Directing the Trustee to make distributions from the appropriate subaccount under an Agency Account in accordance with Section 5.9. (c) Allocating contributions, earnings and expenses to each Agency Account and the underlying subaccounts; (d) Directing the Trustee to pay the fees of the Trust Administrator and to do such other acts as shall be appropriate to carry out the intent of the Trust; (e) Such other services as the Employer and the Trust Administrator may agree in the Agreement for Administrative Services pursuant to Section 2.3. The Trust Administrator shall be entitled to rely on, and shall be under no duty to question, any direction and/or data received from the Plan Administrator, or other duly authorized entity, in order to perform its authorized duties under this Trust Agreement. The Trust Administrator shall not have any duty to compute contributions made to the Trust, determine or inquire whether contributions made to the Trust by the Plan Administrator or other duly authorized entity are adequate to meet an Employer's Pension Obligation or OPEB Obligation as may be determined under any applicable GASB pronouncement; or determine or inquire whether contributions made to the Trust are in compliance with the Employer's OPEB Plan or Pension Plan. The Trust Administrator shall not be liable for nonperformance of duties if such nonperformance is directly caused by erroneous, and/or late delivery of, directions or data from the Plan Administrator, or other duly authorized entity. 3.11 Additional Trust Administrator Services The Plan Administrator may at any time retain the Trust Administrator as its agent to perform any act, keep any records or accounts and make any computations which are required of the Employer or the Plan Administrator by this Trust Agreement or by the Employer's policies and/or applicable collective bargaining agreements. The Trust Administrator shall be separately compensated Page 10 of 25 for such service and such services shall not be deemed to be contrary to the Trust Agreement. 3.12 Trust Administrator's Compensation As may be agreed upon from time to time by the Employer and Trust Administrator, the Trust Administrator will be paid reasonable compensation for services rendered or reimbursed for expenses properly and actually incurred in the performance of duties with respect to such Employer's Agency Account and to the Trust. 3.13 Resignation or Removal of Trust Administrator The Employers may act to remove the Trust Administrator, provided that such action must satisfy the voting requirements set forth in Section 3.9 and notice of such action must be promptly delivered to the Trust Administrator, the Trustee and each Plan Administrator. The Trust Administrator may also resign at any time by giving at least one hundred and twenty (120) days prior written notice to the Trustee and to the Plan Administrator of each Employer that has adopted the Trust Agreement and not terminated its participation in the Trust; provided, however, that the Trust Administrator may resign immediately upon the earlier of the approval date or the effective date of any amendment of the Trust Agreement by the Employers that would change or modify the duties, powers or liabilities of the Trust Administrator hereunder without the Trust Administrator's consent. The Trust Administrator shall, upon the appointment and acceptance of a successor trust administrator, transfer all records relating to the Trust to the successor. ARTICLE IV THE TRUSTEE 4.1 Powers and Duties of the Trustee Except as otherwise provided in Article V and subject to Article VI, the Trustee shall have full power and authority with respect to property held in the Trust to do all such acts, take all proceedings, and exercise all such rights and privileges, whether specifically referred to or not in this document, as could be done, taken or exercised by the absolute owner, including, without limitation, the following: (a) To invest and reinvest the Assets or any part hereof in any one or more kind, type, class, item or parcel of property, real, personal or mixed, tangible or intangible; or in any one or more kind, type, class, item or issue of investment or security; or in any one or more kind, type, class or item of obligation, secured or unsecured; or in any combination of them (including those issued by the Trustee of any of its affiliates, to the extent permitted by applicable law), and to retain the property for the period of time that the Trustee deems appropriate; Page 11 of 25 (b) To acquire and sell options to buy securities ("call" options) and to acquire and sell options to sell securities ("put" options); (c) To buy, sell, assign, transfer, acquire, loan, lease (for any purpose, including mineral leases), exchange and in any other manner to acquire, manage, deal with and dispose of all or any part of the Trust property, for cash or credit and upon any reasonable terms and conditions; (d) To make deposits, with any bank or savings and loan institution, including any such facility of the Trustee or an affiliate thereof provided that the deposit bears a reasonable rate of interest; (e) To invest and reinvest the Assets, or any part thereof in any one or more collective investment trust funds, including common and group trust funds that consist exclusively of assets of exempt pension and profit sharing trusts and individual retirement accounts qualified and tax exempt under the Code, that are maintained by the Trustee or an affiliate thereof. The declaration of trust or plan of operations for any such common or collective fund is hereby incorporated herein and adopted into this Trust Agreement by this reference. The combining of money and other assets of the Trust with money and other assets of other non - qualified trusts in such fund or funds is specifically authorized. Notwithstanding anything to the contrary in this Trust Agreement, the Trustee shall have full investment responsibility over Assets of the Trust invested in such commingled funds. if the plan and trust for any reason lose their tax exempt status, and the Assets have been commingled with assets of other tax exempt trusts in Trustee's collective investment funds, the Trustee shall within 30 days of notice of such loss of tax exempt status, liquidate the Trust's units of the collective investment fund(s) and invest the proceeds in a money market fund pending investment or other instructions from the Plan Administrator. The Trustee shall not be liable for any loss or gain or taxes, if any, resulting from said liquidation; (f) To place uninvested cash and cash awaiting distribution in one or more mutual funds and/or commingled investment funds maintained by or made available by the Trustee or any of its affiliates, and to receive compensation from the sponsor of such fund(s) for services rendered, separate and apart from any Trustee's fees hereunder. The Trustee or its affiliate may also be compensated for providing investment advisory services to any mutual fund or commingled investment funds; (g) To borrow money for the purposes of the Trust from any source with or without giving security; to pay interest; to issue promissory notes and to secure the repayment thereof by pledging all or any part of the Assets; (h) To take all of the following actions: to vote proxies of any stocks, bonds or other securities; to give general or special proxies or powers of attorney with or Page 12 of 25 without power of substitution; to exercise any conversion privileges, subscription rights or other options, and to make any payments incidental thereto; to consent to or otherwise participate in corporate reorganizations or other changes affecting corporate securities and to delegate discretionary powers and to pay any assessments or charges in connection therewith; and generally to exercise any of the powers of an owner with respect to stocks, bonds, securities or other property held in the Trust; (i) To make, execute, acknowledge and deliver any and all documents of transfer and conveyance and any and all other instruments that may be necessary or appropriate to carry out the powers herein granted; (j) To raze or move existing buildings; to make ordinary or extraordinary repairs, alterations or additions in and to buildings; to construct buildings and other structures and to install fixtures and equipment therein; (k) To pay or cause to be paid from the Trust any and all real or personal property taxes, income taxes or other taxes or assessments of any or all kinds levied or assessed upon or with respect to the Trust; (1) To exercise all the further rights, powers, options and privileges granted, provided for, or vested in trustees generally under applicable federal or state laws, as amended from time to time, it being intended that, except as herein otherwise provided, the powers conferred upon the Trustee herein shall not be construed as being in limitation of any authority conferred by law, but shall be construed as consistent or in addition thereto. 4.2 Additional Trustee Powers In addition to the other powers enumerated above, the Trustee in any and all events is authorized and empowered: (a) To invest funds pending required directions in any type of interest -bearing account, including, without limitation, time certificates of deposit or interest - bearing accounts issued by the Trustee, or any mutual fund or short term investment fund ("Fund"), whether sponsored or advised by the Trustee or any affiliate thereof); the Trustee or its affiliates may be compensated for providing such investment advice and providing other service to such Fund, in addition to any Trustee's fees received pursuant to this Trust Agreement; (b) To cause all or any part of the Trust to be held in the name of the Trustee (which in such instance need not disclose its fiduciary capacity) or, as permitted by law, in the name of any nominee, and to acquire for the Trust any investment in bearer form, but the books and records of the Trust shall at all times show that all such investments are a part of the Trust and the Trustee shall hold evidences of title to all such investments; Page 13 of 25 (c) To serve as custodian with respect to the Trust Assets; (d) To employ such custodians, agents and counsel as may be reasonably necessary in managing and protecting the Assets and to pay them reasonable compensation from the Trust; to employ any broker -dealer or other agent, including any broker -dealer or other agent affiliated with the Trustee, and pay to such broker -dealer or other agent, at the expense of the Trust, its standard commissions or compensation; to settle, compromise or abandon all claims and demands in favor of or against the Trust; and to charge any premium on bonds purchased at par value to the principal of the Trust without amortization from the Trust, regardless of any law relating thereto; (e) In addition to the powers listed herein, to do all other acts necessary or desirable for the proper administration of the Trust, as though the absolute owner thereof; (f) To prosecute, compromise and defend lawsuits, but without obligation to do so, all at the risk and expense of the Trust; and to tender its defense to the Employer in any legal proceeding where the interests of the Trustee and the Employer are not adverse; (g) To exercise and perform any and all of the other powers and duties specified in this Trust Agreement or the Plan; (h) To permit such inspections of documents at the principal office of the Trustee as are required by law, subpoena or demand by a United States agency; (i) To comply with all requirements imposed by applicable provisions of law; (j) To seek written instructions from the Plan Administrator or other fiduciary on any matter and await their written instructions without incurring any liability. If at any time the Plan Administrator or the fiduciary should fail to give directions to the Trustee, the Trustee may act in the manner that in its discretion seems advisable under the circumstances for carrying out the purposes of the Trust; (k) To compensate such executive, consultant, actuarial, accounting, investment, appraisal, administrative, clerical, secretarial, medical, custodial, depository and legal firms, personnel and other employees or assistants as are engaged by the Plan Administrator in connection with funding the Employer's OPEB Obligation or Pension Obligation or both and to pay from the Trust the necessary expenses of such firms, personnel and assistants, to the extent not paid by the Plan Administrator; Page 14 of 25 (1) To act upon proper written directions of the Plan Administrator or Delegatee, including directions given by photostatic transmissions using facsimile signature, and such other forms of directions as the parties shall agree; (m) To pay from the Trust the expenses reasonably incurred in the administration of the Trust; (n) To maintain insurance for such purposes, in such amounts and with such companies as the Plan Administrator shall elect, including insurance to cover liability or losses occurring by reason of the acts or omissions of fiduciaries but only if such insurance permits recourse by the insurer against the fiduciary in the case of a breach of a fiduciary obligation by such fiduciary. ARTICLE V INVESTMENTS 5.1 Discretionary Versus Directed Investment For the Pension Account and the OPEB Account under the Agency Account, the Employer shall elect either a discretionary or directed investment approach. The Employer may elect the same or different investment approaches for those two subaccounts. The Employer hereby elects a directed approach for the Suspense Account. If the Employer elects a discretionary investment approach for a subaccount, the Employer shall further elect between the various investment strategies offered and the Trustee, in accordance with Article IV, shall have absolute discretion over the investment of the Assets held in such subaccount under the Employer's Agency Account. If the Employer elects a directed investment approach for a subaccount, the Trustee shall direct the investment of the Assets of such subaccount under the Employer's Agency Account in accordance with the direction provided by such Employer. 5.2 Trustee Fees As may be agreed upon, in writing, between the Plan Administrator and Trustee, the Trustee will be paid reasonable compensation for services rendered or reimbursed for expenses properly and actually incurred in the performance of duties with respect to the applicable Agency Account or the Trust. 5.3 Contributions Eligible Employees are not permitted to make contributions to the Trust. The Plan Administrator shall, on behalf of the Employer, make all contributions to the Trustee. Such contributions shall be in cash unless the Trustee agrees to accept a contribution that is not in cash. All contributions shall be paid to the Trustee for investment and reinvestment pursuant to the terms of this Trust Agreement. The Trustee shall not have any duty to determine or inquire whether any contributions Page 15 of 25 to the Trust made to the Trustee by any Plan Administrator are in compliance with the Employer's Pension Plan or OPEB Plan; nor shall the Trustee have any duty or authority to compute any amount to be paid to the Trustee by any Plan Administrator; nor shall the Trustee be responsible for the collection or adequacy of the contributions to meet an Employer's Pension Obligation or OPEB Obligation. The contributions received by the Trustee from each Employer shall be held and administered pursuant to the terms hereof without distinction between income and principal. 5.4 Records (a) The Trustee shall maintain accurate records and detailed accounts of all investments, receipts, disbursements and other transactions hereunder at the Trust level. Such records shall be available at all reasonable times for inspection by the Trust Administrator. The Trustee shall, at the direction of the Trust Administrator, submit such valuations, reports or other information as the Trust Administrator may reasonably require. (b) The Assets of the Trust shall be valued at their fair market value on the date of valuation, as determined by the Trustee based upon such sources of information as it may deem reliable; provided, however, that the Plan Administrator shall instruct the Trustee as to valuation of assets which are not readily determinable on an established market. The Trustee may rely conclusively on such valuations provided by the Plan Administrator and shall be indemnified and held harmless by the Employer with respect to such reliance. If the Plan Administrator fails to provide such values, the Trustee may take whatever action it deems reasonable, including employment of attorneys, appraisers or other professionals, the expense of which will be an expense of administration of the Trust. Transactions in the account involving such hard to value assets may be postponed until appropriate valuations have been received and Trustee shall have no liability therefore. 5.5 Statements (a) Periodically as specified, and within sixty days after December 31, or the end of the Trust's fiscal year if different, Trustee shall render to the Trust Administrator as directed, a written account showing in reasonable summary the investments, receipts, disbursements and other transactions engaged in by the Trustee during the preceding fiscal year or period with respect to the Trust. Such account shall set forth the assets and liabilities of the Trust valued as of the end of the accounting period. (b) The Trust Administrator may approve such statements either by written notice or by failure to express objections to such statements by written notice delivered to the Trustee within 90 days from the date the statement is delivered to the Trust Administrator. Upon approval, the Trustee shall be released and discharged as to all matters and items set forth in such statement as if such Page 16 of 25 account had been settled and allowed by a decree from a court of competent jurisdiction. 5.6 Wire Transfers The Trustee shall follow the Plan Administrator's, Delegatee's, or Trust Administrator's wire transfer instructions in compliance with the written security procedures provided by the party providing the wire transfers. The Trustee shall perform a telephonic verification to the Plan Administrator, Trust Administrator, or Delegatee, or such other security procedure as selected by the party providing wire transfer directions, prior to wiring funds or following facsimile directions as Trustee may require. The Plan Administrator assumes the risk of delay of transfer if Trustee is unable to reach the Plan Administrator, or in the event of delay as a result of attempts to comply with any other security procedure selected by the directing party. 5.7 Exclusive Benefit The Assets of an Employer's Agency Account shall be held in trust for the exclusive purpose of funding the Employer's OPEB Obligation or Pension Obligation or both and defraying the reasonable expenses associated with the same and shall not be used for or diverted to any other purpose. No party shall have authority to use or divert the Assets of an Agency Account of an Employer for the satisfaction of any other Employer's Pension Obligation or OPEB Obligation or any other Employer's expenses. 5.8 Delegation of Duties The Plan Administrator, Delegatee, or Trust Administrator, may at any time retain the Trustee as its agent to perform any act, keep any records or accounts and make any computations that are required of the Plan Administrator, Delegatee or Trust Administrator by this Trust Agreement or by the Plan. The Trustee may be compensated for such retention and such retention shall not be deemed to be contrary to this Trust Agreement. 5.9 Distributions (a) The Trustee shall, from time to time, upon the written direction of the Plan Administrator or Delegatee, make distributions from the Assets of the Trust under the OPEB Account to the insurers, third party administrators, service providers or other entities providing benefits or services under the OPEB Plan, or to Eligible Employees and Eligible Beneficiaries for reimbursement of OPEB Plan premiums (or other payments for OPEB Plan benefits) paid by the Eligible Employee or Eligible Beneficiary, or to the Employer for reimbursement of OPEB Plan benefits and expenses paid by the Employer, in such manner in such form(s), in such amounts and for such purposes as may be specified in such directions. Page 17 of 25 (b) In addition, the Trustee shall, from time to time, upon the written direction of the Plan Administrator or Delegatee, make distributions from the Assets of the Trust under the Pension Account directly to (i) the Qualified Trust as employer contributions, (ii) any insurers, third party administrators, service providers or other entities providing services in connection with determining the Employer's Pension Obligation, or (iii) the Employer as reimbursement for the Employer's payment of amounts described in this Section 5.9(b)(i) and (ii). (c) In no event shall the Trustee have any responsibility respecting the application of distributions from the Assets of the Trust, or for determining or inquiring into whether such distributions are in accordance with the Employer's OPEB Plan, Pension Plan, policies, or applicable collective bargaining agreements. ARTICLE VI FIDUCIARY RESPONSIBILITIES 6.1 More Than One Fiduciary Capacity Any one or more of the fiduciaries with respect to the Trust Agreement or the Trust may, to the extent required thereby or as directed by the Plan Administrator pursuant to this Trust Agreement, serve in more than one fiduciary capacity with respect to the Trust Agreement and the Trust. 6.2 Fiduciary Discharge of Duties Except as otherwise provided by applicable law, each fiduciary shall discharge such fiduciary's duties with respect to the Trust Agreement and the Trust: (a) solely in the interest of the Eligible Employees and for the exclusive purpose of funding the Employer's OPEB Obligation or Pension Obligation or both and defraying the reasonable expenses associated with the same; and (b) with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of like character and with like aims. 6.3 Limitations on Fiduciary Responsibility To the extent allowed by the laws of the state of each Employer: No fiduciary shall be liable with respect to a breach of fiduciary duty by any other fiduciary if such breach was committed before such party became a fiduciary or after such party ceased to be a fiduciary. Page 18 of 25 No fiduciary shall be liable for a breach by another fiduciary except as provided by law. No fiduciary shall be liable for carrying out a proper direction from another fiduciary, including refraining from taking an action in the absence of a proper direction from the other fiduciary possessing the authority and responsibility to make such a direction, which direction the fiduciary in good faith believes to be authorized and appropriate. 6.4 Indemnification of Trustee by Employer The Trustee shall not be liable for, and Employer shall (to the extent allowed by the laws of the state of each Employer) indemnify, defend (as set out in Section 6.8 of this Trust Agreement), and hold the Trustee (including its officers, agents, employees and attorneys) and other Employers harmless from and against any claims, demands, loss, costs, expense or liability imposed on the indemnified party, including reasonable attorneys' fees and costs incurred by the indemnified party, arising as a result of Employer's active or passive negligent act or omission or willful misconduct in the execution or performance of its duties under this Trust Agreement. 6.5 Indemnification of Employer by Trustee The Employer shall not be liable for, and Trustee shall (to the extent allowed by the laws of the state of each Employer) indemnify, defend (as set out in Section 6.8 of this Trust Agreement), and hold the Employer (including its officers, agents, employees and attorneys) and other Employers harmless from and against any claims, demands, loss, costs, expense or liability imposed on the indemnified party, including reasonable attorneys' fees and costs incurred by the indemnified party, arising as a result of Trustee's active or passive negligent act or omission or willful misconduct in the execution or performance of its duties under this Trust Agreement. 6.6 Indemnification of Trustee by Trust Administrator The Trustee shall not be liable for, and Trust Administrator shall (to the extent allowed by the laws of the state of each Employer) indemnify and hold the Trustee (including its officers, agents, employees and attorneys) harmless from and against any claims, demands, loss, costs, expense or liability imposed on the indemnified party, including reasonable attorneys' fees and costs incurred by the indemnified party, arising as a result of Trust Administrator's active or passive negligent act or omission or willful misconduct in the execution or performance of its duties under this Trust Agreement. 6.7 Indemnification of Trust Administrator by Trustee The Trust Administrator shall not be liable for, and Trustee shall (to the extent allowed by the laws of the state of each Employer) indemnify and hold the Trust Page 19 of 25 Administrator (including its officers, agents, employees and attorneys) harmless from and against any claims, demands, loss, costs, expense or liability imposed on the indemnified party, including reasonable attorneys' fees and costs incurred by the indemnified party, arising as a result of Trustee's active or passive negligent act or omission or willful misconduct in the execution or performance of its duties under this Trust Agreement. 6.8 Indemnification Procedures Promptly after receipt by an indemnified party of notice or receipt of a claim or the commencement of any action for which indemnification may be sought, the indemnified party will notify the indemnifying party in writing of the receipt or commencement thereof. When the indemnifying party has agreed to provide a defense as set out above that party shall assume the defense of such action (including the employment of counsel, who shall be counsel reasonably satisfactory to such indemnitee) and the payment of expenses, insofar as such action shall relate to any alleged liability in respect of which indemnity may be sought against the indemnifying party. Any indemnified party shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall not be at the expense of the indemnifying party unless (i) the employment of such counsel has been specifically authorized by the indemnifying party or (ii) the named parties to any such action (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interest between them. The indemnifying party shall not be liable to indemnify any person for any settlement of any such action effected without the indemnifying party's consent. The indemnification procedures of this Trust Agreement shall survive the termination of the Trust, any Employer's participation in the Trust and/or this Trust Agreement. 6.9 No Joint and Several Liability This document is not intended to and does not create any joint powers agreement or any joint and several liability. No Employer shall be responsible for any contributions, costs or distributions of any other Employer. ARTICLE VII AMENDMENT, TERMINATION AND MERGER 7.1 No Contractual Obligation An Employer's participation in the Trust does not create, and is not intended to create, any contractual obligation to Eligible Employees. Therefore, no Employer is contractually obligated to Eligible Employees solely due to its participation in Page 20 of 25 the Trust to continue providing benefits under its Pension Plan or OPEB Plan or to make contributions to the Trust. 7.2 Amendment of Trust (a) The Trust Agreement may be amended only by the approval of two-thirds (2/3) or more of the Employers then participating in the Trust. Any such amendment by the Employers shall be set forth in an instrument in writing and shall be delivered to the Trustee, the Trust Administrator and all Plan Administrators not less than one hundred and eighty (180) days before the effective date of such amendment; provided, however, that any party may waive in writing such 180-day requirement with respect to any amendment (and such waiver shall not constitute a waiver with respect to any other amendment); and provided, further, that a waiver in writing of such 180-day requirement by two- thirds (2/3) or more of the Plan Administrators of the Employers participating in the Trust as of the date the amendment is adopted shall constitute a waiver of such 180-day requirement by all of the Employers then participating in the Trust. In addition, the Trust Administrator or the Trustee shall have the right to amend this Trust Agreement from time to time (without the requirement of a vote of Employers) solely for the purpose of keeping the Trust Agreement in compliance with the Code and applicable state law. Any such amendment by the Trust Administrator or the Trustee shall be set forth in an instrument in writing and shall be delivered to the Trustee, the Trust Administrator and all Plan Administrators promptly as each is made. (b) Any amendment of the Trust Agreement may be current, retroactive or prospective, provided, however, that no amendment shall: (1) Cause the Assets of any Agency Account to be used for or diverted to purposes other than for the exclusive purpose of funding the Employer's OPEB Obligation or Pension Obligation or both and defraying the reasonable expenses associated with the same. (2) Permit the Assets of any Agency Account to be used for the benefit of any other Employer. 7.3 Termination of Employer's Obligation to Provide Pension Benefits or OPEB A termination of the Employer's obligation to provide benefits under the Employer's Pension Plan or OPEB Plan for which the Employer's Agency Account was established shall not, in itself, effect a termination of the Agency Account. Upon a termination of the Employer's obligation to provide benefits under its Pension Plan or OPEB Plan, the Assets of the Employer's Pension Account or OPEB Account, as applicable, will be distributed by the Trustee when directed by the Plan Administrator in accordance with this Section 7.3. From and after the date of such termination and until final distribution of all Assets under the Employer's Agency Account, the Trustee shall continue to have all the powers Page 21 of 25 provided herein as are necessary or expedient for the orderly liquidation and distribution of such Assets, and the Agency Account shall continue until the Assets have been completely distributed. Any Assets remaining in the Pension Account or OPEB Account will be used first to satisfy any remaining Pension Obligation or OPEB Obligation, respectively, pursuant to the Employer's Pension Plan or OPEB Plan (to the extent that such distribution constitutes the exercise of an "essential governmental function" within the meaning of Section 115 of the Code) and to satisfy any of such Employer's obligations under this Trust Agreement. Any Assets remaining in the Employer's Pension Account or OPEB Account (as applicable) after giving effect to the preceding sentence will be paid to the Employer to the extent permitted by law and consistent with the requirements of Section 115 of the Code. 7.4 Fund Recovery Based on Mistake of Fact Except as hereinafter provided or in accordance with Section 7.3, the Assets of the Trust shall never inure to the benefit of the Employer. The Assets shall be held for the exclusive purpose of funding the Employer's OPEB Obligation or Pension Obligation or both and defraying the reasonable expenses associated with the same. However, in the case of a contribution which is made by an Employer because of a mistake of fact, that portion of the contribution relating to the mistake of fact (exclusive of any earnings or losses attributable thereto) may be returned to the Employer, provided such return occurs within two (2) years after discovery by the Employer of the mistake. If any repayment is payable to the Employer, then, as a condition to such repayment, and only if requested by Trustee, the Employer shall execute, acknowledge and deliver to the Trustee its written undertaking, in a form satisfactory to the Trustee, to indemnify, defend and hold the Trustee harmless from all claims, actions, demands or liabilities arising in connection with such repayment. 7.5 Termination of Trust (a) The Trust and this Trust Agreement may be terminated by the unanimous agreement of all Employers, which action must be in writing and delivered to the Trustee and Trust Administrator. Upon termination of the Trust under this Section 7.5(a), the Assets of each Employer's Pension Account or OPEB Account, as applicable, will be distributed by the Trustee when directed by the Plan Administrator in accordance with this Section 7.5(a). From and after the date of such termination and until final distribution of all Assets under each Employer's Agency Account, the Trustee shall continue to have all the powers provided herein as are necessary or expedient for the orderly liquidation and distribution of such Assets, and the Agency Account shall continue until the Assets have been completely distributed. Any Assets remaining in the Pension Account or OPEB Account will be used first to satisfy any remaining Pension Obligation or OPEB Obligation, respectively, pursuant to the Employer's Pension Plan and OPEB Plan (to the extent that such distribution constitutes the exercise of an "essential governmental function" within the meaning of Section 115 of the Code) and to Page 22 of 25 satisfy any of such Employer's obligations under this Trust Agreement. Any Assets remaining in the Employer's Pension Account or OPEB Account (as applicable) after giving effect to the preceding sentence will be paid to the Employer to the extent permitted by law and consistent with the requirements of Section 115 of the Code. (b) Contributions to the Trust are conditioned on initial qualification of the Trust under Section 115 of the Code. If the Trust receives an adverse determination with respect to its initial qualification, then the Trust and this Trust Agreement will automatically terminate without any action by any Employer or other parties. After such termination, the Assets of each Employer's Pension Account or OPEB Account, as applicable, will be returned by the Trustee to the Employer as directed by the Plan Administrator in accordance with this Section 7.5(b) to the extent permitted by law and consistent with the requirements of Section 115 of the Code. This Section 7.5(b) will cease to apply upon the Trust's receipt of a favorable determination with respect to its initial qualification. (c) The Trust and this Trust Agreement may be terminated only as described in this Section 7.5. In no case will the assets of the Trust be distributed on termination to an entity that is not a state, a political subdivision of a state or an entity the income of which is excluded from gross income under Section 115 of the Code. ARTICLE VIII MISCELLANEOUS PROVISIONS 8.1 Nonalienation Eligible Employees do not have an interest in the Trust. Accordingly, the Trust shall not in any way be liable to attachment, garnishment, assignment or other process, or be seized, taken, appropriated or applied by any legal or equitable process, to pay any debt or liability of an Eligible Employee or any other party. Trust Assets shall not be subject to the claims of any Employer or the claims of its creditors. 8.2 Saving Clause In the event any provision of this Trust Agreement is held illegal or invalid for any reason, said illegality or invalidity shall not affect the remaining parts of the Trust Agreement, but this instrument shall be construed and enforced as if said provision had never been included. 8.3 Applicable Law This Trust Agreement and the Trust shall be construed, administered and governed under the Code and the law of the State of California. To the extent any Page 23 of 25 of the provisions of this Trust Agreement are inconsistent with the Code or applicable state law, the provisions of the Code or state law shall control. In the event, however, that any provision is susceptible to more than one interpretation, such interpretation shall be given thereto as is consistent with the Trust Agreement being a tax-exempt trust within the meaning of the Code. 8.4 Joinder of Parties In any action or other judicial proceedings affecting this Trust Agreement, it shall be necessary to join as parties only the Trustee, the Plan Administrator or Delegatee. No participant or other persons having an interest in the Trust or any Agency Account shall be entitled to any notice or service of process unless otherwise required by law. Any judgment entered in such a proceeding or action shall be binding on all persons claiming under this Trust Agreement; provided, however, that nothing in this Trust Agreement shall be construed as to deprive a participant of such participant's right to seek adjudication of such participant's rights under applicable law. 8.5 Employment of Counsel The Trustee may consult with legal counsel (who may be counsel for the Trustee, the Trust Administrator or any Employer) with respect to the interpretation of this Agreement or the Trustee's duties hereunder or with respect to any legal proceedings or any questions of law and shall be entitled to take action or not to take action in good faith reliance on the advice of such counsel and charge the Trust and, as applicable, one or more Agency Accounts. 8.6 Gender and Number Words used in the masculine, feminine or neuter gender shall each be deemed to refer to the other whenever the context so requires; and words used in the singular or plural number shall each be deemed to refer to the other whenever the context so requires. 8.7 Headings Headings used in this Trust Agreement are inserted for convenience of reference only and any conflict between such headings and the text shall be resolved in favor of the text. 8.8 Counterparts This Trust Agreement may be executed in an original and any number of counterparts by the Plan Administrator (executing an Adoption Agreement), the Trust Administrator and the Trustee, each of which shall be deemed to be an original of the one and the same instrument. Page 24 of 25 IN WITNESS WHEREOF, the Plan Administrator (by executing the Adoption Agreement), the Trustee and the Trust Administrator have executed this Trust Agreement by their duly authorized agents on the Effective Date. U.S. BANK NATIONAL ASSOCIATION "Trustee" By: , By: Si a:� a Signatur Susan M. Hughes Daniel Johnson Typed or printed name Typed or printed name Its: Vice President & Relationship Manager Its: President PUBLIC AGENCY RETIREMENT SERVICES "Trust Administrator" Page 25 of 25 RESOLUTION NO. 2019 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY 1) APPROVING THE FIRST AMENDMENT TO THE AGREEMENT WITH PHASE II SYSTEMS DBA PUBLIC AGENCY RETIREMENT SERVICES WITH A MUTUAL INDEMNITY AND HOLD HARMLESS PROVISION FOR OTHER POST -EMPLOYMENT BENEFITS TRUST ADMINISTRATION SERVICES FOR THE PERIOD OF SEPTEMBER 18, 2019 THROUGH DECEMBER 31, 2020, 2) APPROVING THE AMENDED ADOPTION AGREEMENT FOR THE PUBLIC AGENCIES POST -EMPLOYMENT BENEFITS TRUST AGREEMENT, AND 3) AUTHORIZING THE CITY MANAGER TO EXECUTE THE DOCUMENTS WHEREAS, the City employed a consultant to provide comprehensive trust administration services for the City's irrevocable supplemental pension trust (the "Trust") for the period of December 20, 2017 through December 31, 2020; and WHEREAS, the City determined that Phase II Systems dba Public Agency Retirement Services (PARS) is an administrator of irrevocable supplemental pension trusts and is qualified by experience and ability to perform the services desired by the City, and PARS is willing to perform such services; and WHEREAS, the agreement contains a mutual indemnity and hold harmless provision with compensation deducted from the Trust's assets. WHEREAS, on December 19, 2017, per Resolution 2017-243, the City Council authorized the Mayor to Execute an agreement with a mutual indemnity and hold harmless provision with Phase II Systems dba Public Agency Retirement Services to provide pension trust administration; and WHEREAS, at the Special Meeting of the City Council on April 24, 2019, the City Council approved the assignment of $3.1 million of General Fund fund balance to establish an irrevocable post -employment benefits (OPEB) trust; and WHEREAS, staff recommends amending City Council Policy # 201, "Maintenance of Reserves," to add "Irrevocable Other Post -Employment Benefits Trust Reserve" to the City's reserves and establish a target level for the trust of an amount equal to the total net liability of the City's OPEB plans. NOW, THEREFORE, BE IT RESOLVED that the City Council hereby approves the first amendment to the Agreement with Phase II Systems dba Public Agency Retirement Services with a mutual indemnity and hold harmless provision for other post - employment benefits trust administration services for the period of September 18, 2019 through December 31, 2020. BE IT FURTHER RESOLVED that the City Council hereby approves the amended adoption Agreement for the Public Agencies Post -Employment Benefits Trust Agreement. Resolution 2019 — Page Two BE IT FURTHER RESOLVED that the City Council authorizes the City Manager to execute the documents. PASSED and ADOPTED this 17th day of September, 2019 Alejandra Sotelo-Solis, Mayor ATTEST: Michael R. Dalla, City Clerk APPROVED AS TO FORM: Angil P. Morris -Jones City Attorney CITY OF NATIONAL CITY Office of the City Clerk 1243 National City Blvd., National City, California 91950-4397 619-336-4228 Michael R. Dalla, CMC - City Clerk PHASE II SYSTEMS, D.B.A. PUBLIC AGENCY RETIREMENT SERVICES (PARS) Comprehensive Trust Administration Services Irrevocable Supplemental Pension Trust Karim Galeana (Finance) forwarded a duplicate original Agreement to PARS.