HomeMy WebLinkAboutC-7775-5 - Trust Agreement (for 401(a) Plan - 98310-03)lP
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TRUST AGREEMENT
For
CITY OF NEWPORT BEACH
(the "Plan Sponsor")
GROUP CLIENT NUMBER
98310-03
Plan Name City of Newport Beach 401(a) Plan (the "Plan")
Plan Administrator
(Plan Sponsor will be Plan
Administrator if left blank)
Effective Date (later of this date March 29, 2024
or the date executed by
Trustee)
TABLE OF CONTENTS
1.
Definitions..........................................................................................................................................3
2.
Creation and Operation of the Trust...............................................................................................
3
3.
Powers of the Trustee.......................................................................................................................6
4.
Compensation and Expenses........................................................................................................11
5.
Confidential Information.................................................................................................................12
6.
Data Protection................................................................................................................................13
7.
Business Continuity & Disaster Recovery...................................................................................13
8.
Records............................................................................................................................................14
9.
Intellectual Property Rights............................................................................................................14
10.
Liability & Indemnification..............................................................................................................14
11.
Dispute Resolution..........................................................................................................................14
12.
Term & Termination........................................................................................................................15
13.
Miscellaneous..................................................................................................................................16
6
This Trust Agreement is by and between Plan Sponsor and Empower Trust Company, LLC, a trust
company chartered under the laws of the State of Colorado having a place of business in Greenwood
Village, Colorado (hereinafter referred to as "Trustee").
Plan Sponsor has established or adopted the Plan for its eligible employees and their beneficiaries.
A trust is maintained in connection with the Plan (the "Trust") to which Plan contributions are to be made to
be held by the Trustee and to be managed, invested and reinvested for the exclusive benefit of an
employee, former employee, participant, former participant, beneficiary or alternate payee who is or may
be entitled to participate in or receive benefits under the Plan (collectively, "Participants"). The Plan and
Trust are intended to qualify as a plan and trust which meet the applicable requirements of Section 401(a)
and 501(a) or Sections 457(b) and (g), whichever is applicable, of the Internal Revenue Code of 1986, as
amended, or any successor thereto (the "Code"). Plan Sponsor is a fiduciary to the Plan and is authorized
under the terms of the Plan to appoint a Trustee. The Plan Sponsor desires Trustee to hold Plan funds
and Trustee is willing to hold such funds pursuant to the terms of this Trust Agreement. The Plan Sponsor
wishes to appoint Empower Trust Company, LLC, as Trustee under the terms hereof. Plan Sponsor hereby
warrants and represents that it is permitted, pursuant to its governing laws, including but not limited to
applicable state and local laws, to appoint Empower Trust Company, LLC, as Trustee. In consideration of
the premises and of the mutual covenants herein contained, the parties covenant and agree as follows:
1. Definitions
"Affiliate" means a corporate entity that directly or indirectly is controlled by or is under common control with
a party, including any entity that conforms to this definition after the effective date of this Agreement.
"Data" means Personal Data and Plan Data.
"Data Protection Laws" means any law with respect to the protection of Personal Data that is applicable to
Trustee's Services under the Trust Agreement.
"Direction" and "Direct" and their similar terms shall mean the instruction, authorization, or direction given
to Empower by the Plan Sponsor, another fiduciary of the Plan, or a person that Empower reasonably
believes to be authorized to act on behalf of the Plan Sponsor or another fiduciary.
"Trust Agreement" includes this Trust Agreement and any exhibits, schedules, notices and other documents
attached, incorporated or referenced herein.
"Personal Data" shall mean information that identifies or is reasonably capable of being associated with a
Participant in the Plan or an eligible employee of Plan Sponsor, and includes personally identifiable
financial information as defined by Title V of the Gramm -Leach -Bliley Act, but excluding data that is
publicly -available and data from which individual identities have been removed and that is not linked or
reasonably linkable to any individual.
"Plan Data" shall mean non-public Plan level information that is provided to Trustee in connection with
receipt of the Services. Plan Data excludes data that is de -identified and aggregated for benchmarking and
research purposes.
"Plan Sponsor" means the Plan Sponsor identified above, any plan administrator appointed by the Plan
Sponsor (the "Plan Administrator"), fiduciaries to the Plan, and other delegates of the Plan Sponsor (other
than Trustee) as dictated by the context.
2. Creation and Operation of the Trust
2.1. Services. Trustee will provide the services set forth in this Trust Agreement or as further
described in schedules or appendixes hereto (collectively the "Services").
2.2. Establishment/Acceptance of Trust. In order to carry out the purposes of the Plan, the
Trust is hereby created and established or, if previously established, is hereby continued. Trustee accepts
this Trust and agrees to act as Trustee hereunder, but only on the terms and conditions set forth in this
Trust Agreement. Subject to the terms and conditions of this Trust Agreement, all right, title and interest in
and to the estate of the Trust fund shall be vested exclusively in Trustee.
2.3. Acceptance of Property. The Trust Fund shall include only those assets which Trustee
initially accepts, and assets that are subsequently added to the Trust Fund pursuant to the provisions of
Trust Agreement, hereinafter referred to as the "Trust Fund". Only assets actually received by Trustee will
become part of the Trust Fund. Plan Sponsor acknowledges and agrees that it is responsible for
effectuating the transfer of any assets held by a prior trustee or custodian to Trustee. All assets so received,
together with the income there from and any other increment thereon, shall be held by Trustee pursuant to
the terms of this Trust Agreement without distinction between principal and income and without liability for
the payment of interest thereon. In no event shall Trustee be considered a party to the Plan and, in the
event of any conflict between this Trust Agreement and the provisions of the Plan or any other instrument
or agreement forming part of such Plan, the provisions of this Trust Agreement shall take precedence.
Trustee shall have only such duties with respect to the Plan as are set forth in this Trust Agreement.
2.4. Investment Powers.
2.4.1 Trustee shall have no discretion or authority with respect to the investment of
Trust assets, but shall act solely as a directed Trustee, and in accordance with this Trust Agreement shall
invest and reinvest the principal and income of the Trust and keep the Trust invested in such investments
in securities or other property, real or personal, within or without the United States, including, without
limitation, interests and part interests in any bond and mortgage or note and mortgage and interests and
part interests in certificates of deposit, commercial paper and other short-term or demand obligations,
secured or unsecured, whether issued by governmental or quasi -governmental agencies or corporations
or by any firm or corporation, capital, common and preferred, voting and nonvoting stock (regardless of
dividend or earnings record), and including shares of mutual funds, annuity or investment contracts issued
by an insurance company, and financial options and futures or any other form of option, and shall hold such
securities or property in one or more funds; or in any fund created and administered by Trustee or any other
bank or Investment Manager, as defined in Paragraph 2.4.6 of this Trust Agreement, for the collective
investment of the assets of employee benefit trusts that is (i) a collective investment fund or (ii) a group
trust that meets all of the conditions of Revenue Ruling 81-100, as modified by Revenue Ruling 2011-1,
(and while any portion of the Trust Fund is so invested, such collective investment fund or group trust shall
constitute part of the Plan, and the instrument creating such fund shall constitute part of this Trust
Agreement). Trustee may keep such portion of the Trust Fund in cash and cash balances or hold all or any
portion of the Trust Fund in savings accounts, certificates of deposit, and other types of time or demand
deposits with any financial institution or quasi -financial institution, either domestic or foreign (including
Trustee and its Affiliates) as directed by the Plan Administrator, Plan Sponsor, Investment Manager, or
other designated named fiduciary. Notwithstanding the foregoing, unless otherwise authorized by ERISA
or by regulations promulgated by the Secretary of the Department of Labor, Trustee shall maintain the
indicia of ownership of all securities or other investments within the jurisdiction of the District Courts of the
United States.
2.4.2 To the maximum extent permitted by law, Trustee shall not be liable for the
acquisition, retention or disposition of any assets of the Trust Fund or for any loss to or diminution of such
assets unless due to Trustee's own willful misconduct or failure to act in good faith.
2.4.3 Trustee shall not be the Plan Administrator. Trustee shall be a directed Trustee
under the direction of the Plan Administrator, Plan Sponsor, Participants (only to the extent the investment
of Plan assets are directed by Participants as provided below), Investment Manager, as appointed by Plan
Sponsor or Plan Administrator, or other fiduciary of the Plan designated under the Plan, who is not the
Trustee. The duties and obligations of Trustee hereunder shall be limited to those expressly imposed upon
it by this Trust Agreement, notwithstanding any reference contrary in the Plan, and no further duties or
obligations of Trustee shall be implied. For example, Trustee shall have no initial or ongoing duty to
determine the prudence of any Plan investment directed to be made by Plan Sponsor or any delegate
thereof, to diversify Plan investments, or to make or monitor investment decisions. The Plan Administrator,
Plan Sponsor or Investment Manager, as applicable, and not the Trustee are solely responsible for the
prudent selection of Plan investments and for the ongoing duty to monitor and remove imprudent Plan
investments. Trustee shall not be liable for any loss to, or diminution of the Plan assets, or for any other
loss or damage which may result from the discharging of its duties hereunder if it acts in good faith and in
accordance with the terms of this Trust Agreement and in accordance with the applicable federal or state
laws, rules, and regulations.
2.4.4 Plan Administrator, Plan Sponsor or other designated fiduciary shall select
investment alternatives for the Plan (each an "Investment Alternative") which include some or all of the
following types, or some other type reasonably acceptable to Trustee from an administrative standpoint: (i)
securities issued by open-end investment companies registered under the Investment Company Act of
1940 ("Mutual Funds"), (ii) notes evidencing loans to Participants in accordance with the terms of the Plan,
(iii) annuity or investment contracts issued by an insurance company, (iv) a portfolio of securities and
obligations which is intended to produce a fixed rate of investment return, including but not limited to
guaranteed investment contracts ("GICs"), United States government securities, corporate bonds, notes,
debentures, convertible securities, preferred stocks, and interests in collective investment funds maintained
by banks or other financial institutions which invest in such securities and obligations and other similar
investments, in each case as chosen by Plan Sponsor, Plan Administrator or an Investment Manager, (v)
portfolios of securities managed by an Investment Manager for which market values can be obtained readily
from securities exchanges or pricing services subscribed to by Trustee, (vi) portfolios of securities issued
by Mutual Funds, managed by an Investment Manager or Plan Administrator, and (vii) interests in collective
investment funds and group trusts under Revenue Ruling 81-100, as modified by Revenue Ruling 2011-1,
maintained by Trustee or another bank or financial institution for qualified plans.
2.4.5 If the investment of Plan assets is to be directed by Participants, the Plan
Administrator, Plan Sponsor or other designated fiduciary, who is not the Trustee, shall be solely
responsible for the Plan selecting a broad range of investment alternatives among which Participants may
designate investments of their accounts, providing Participants with information concerning the designated
Investment Alternatives, and restricting the frequency with which Participants may issue investment
instructions.
2.4.6 Plan Administrator, Plan Sponsor or other designated fiduciary of the Plan may
appoint an "Investment Manager," to manage any Investment Alternative, or any part of an Investment
Alternative. Any Investment Manager so appointed shall be (i) an investment adviser registered as such
under the Investment Advisers Act of 1940 ("Advisers Act"), (ii) a bank, as defined in the Advisers Act, (iii)
an insurance company qualified to perform investment management services under the laws of more than
one state of the United States, or (iv) another entity who has agreed to be a fiduciary with respect to the
Plan. In the event of such appointment, the appointing fiduciary shall notify Trustee of any such
appointment by delivering to Trustee written notice of the appointment of each Investment Manager
hereunder, in the form provided by Trustee, together with an acknowledgment by the Investment Manager
that it is a fiduciary of the Plan. Alternatively, the Plan Administrator or Plan Sponsor, in its capacity as a
fiduciary to the Plan, may manage an Investment Alternative. In either case, the appointing fiduciary shall
specify to Trustee the Investment Alternative that shall be subject to such investment management. The
appointing fiduciary shall be responsible for ascertaining that, while each Investment Manager is acting in
that capacity, that such Investment Manager satisfies the requirements of this paragraph 2.4.6. Trustee
shall invest and reinvest the portion of the Trust Fund subject to such investment management only to the
extent and in the manner directed by the Investment Manager, the Plan Administrator or Plan Sponsor, as
the case may be. During the term of such appointment, Trustee shall have no liability for the acts or
omissions of such Investment Manager, the Plan Administrator or Plan Sponsor, and except as provided in
the preceding sentence, shall be under no obligation to invest, review, or otherwise manage the portion of
the Trust Fund subject to such investment management. Trustee may maintain separate accounts within
the Trust Fund for the assets of the Trust Fund subject to such investment management. The appointing
fiduciary may terminate its appointment of an Investment Manager at any time and shall notify Trustee in
writing of such termination. Trustee shall be protected in assuming that the appointment of an Investment
Manager remains in effect until it is otherwise notified in writing by the appointing fiduciary.
2.4.7 In the event an Investment Manager appointed hereunder is a bank or a trust
company, or an affiliate of a bank or trust company, Trustee shall, upon the direction of Plan Sponsor,
transfer funds to such bank, trust company, or affiliate for investment through the medium of any collective
investment fund created and administered by such bank, trust company, or affiliate, acting as trustee
therefor, for the collective investment of the assets of employee benefit trusts, provided that such fund is (i)
a bank collective investment fund or (ii) or a group trust that meets all of the conditions of Revenue Ruling
81-100, as modified by Revenue Ruling 2011-1. In order to implement the provisions of this subsection,
Trustee is authorized to enter into any required ancillary trust, agency or other type of agreement with an
Investment Manager, or its Affiliate, as described in the preceding sentence.
2.5. Payments.
Subject to the provisions of this Trust Agreement, Trustee shall from time to time transfer cash or
other property from the Trust Fund to such persons as designated by the Plan Sponsor or Plan
Administrator, at such addresses, in such amounts, for such purposes and in such manner as the Plan
Sponsor or Plan Administrator may direct, provided that such transfer is administratively feasible, and
Trustee shall incur no liability for any such payment made at the direction of Plan Administrator or Plan
Sponsor except that Trustee bears any liability arising from Trustee's own willful misconduct or failure to
act in good faith. Plan Sponsor or Plan Administrator shall be solely responsible to insure that any payment
made at its direction conforms with the provisions of the Plan, the provisions of this Trust Agreement, and
the Code, and Trustee shall have no duty to determine the rights or benefits of any person in the Trust Fund
or under the Plan or to inquire into the right or power of Plan Sponsor or Plan Administrator to direct any
such payment.
3. Powers of the Trustee
3.1. Trustee is authorized to exercise from time to time in accordance with directions from the
Plan Administrator, Plan Sponsor, an Investment Manager, or a Participant, as the case may be, the
following powers in respect of any property, real or personal, of the Trust Fund, it being intended that these
powers be construed in the broadest possible manner:
3.1.1 to sell at public or private sale for cash or upon credit or partly for cash and partly
upon credit;
3.1.2 to exchange securities or property held by it for other securities or property, or
partly for such securities or property and partly for cash, and to exercise conversion, subscription, option
and similar rights with respect to securities held by it, and to make payments in connection therewith;
3.1.3 to compromise and adjust all debts or claims due to or made against it, to
participate in any plan of reorganization, consolidation, merger, combination, liquidation or other similar
plan or any action thereunder, or any contract, lease, mortgage, purchase, sale or other action by any
corporation or other entity;
3.1.4 to exercise any conversion privilege or subscription right available in connection
with any such property; to oppose or to consent to the reorganization, consolidation, merger or readjustment
of the finances of any corporation, company or association or to the sale, mortgage, pledge or lease of the
property of any corporation, company or association any of the securities of which may at any time be held
in the Trust Fund and to do any act with reference thereto, including the exercise of options, the making of
agreements or subscriptions and the payments of expenses, assessments or subscriptions, which may be
deemed necessary or advisable in connection therewith and to hold and retain any securities or other
property which it may so acquire;
3.1.5 to make distributions in cash or in specific property, real or personal, or an
undivided interest therein, or partly in cash and partly in such property;
3.1.6 to commence or defend suits or legal proceedings and to represent the Trust in
all suits or legal proceedings; to settle, compromise or submit to arbitration any claims, debts or damages
due or owing to or from the Trust, provided that Trustee shall notify Plan Sponsor or Plan Administrator of
all such suits, legal proceedings and claims and, except in the case of a suit, legal proceeding or claim
involving solely Trustee's action or omissions to act, shall obtain the written direction of Plan Sponsor or
Plan Administrator before settling, compromising or submitting to binding arbitration any claim, suit or legal
proceeding of any nature whatsoever. The Trustee shall have no obligation to undertake, defend or continue
to maintain any action or proceeding arising in connection with the Trust, unless and until the Plan Sponsor
requests, upon reasonable advance written notice from the Trustee when the Trustee has knowledge of
such action or proceeding, the Trustee to do so and agrees in writing to indemnify the Trustee against the
Trustee's costs, expenses and liabilities (including, without limitation, attorneys' fees and expenses) relating
thereto, to be primarily liable for such payment and to make periodic payments in respect of such fees and
expenses during the course of such proceedings. If the Plan Sponsor thereafter does not pay such costs,
expenses and liabilities in a reasonably timely manner, the Trustee shall discontinue participation in such
action or proceeding, and charge the assets of the Trust Fund to the extent sufficient for any unpaid fees
and expenses; provided, however, that (a) such charges are reasonable, and (b) it provides the Plan
Sponsor with reasonable advance written notice of its intent to withdraw such that the Plan Sponsor can
act to prevent such withdrawal;
3.1.7 upon the written direction of Plan Sponsor or Plan Administrator, to enter into any
contract or policy with an insurance company or companies, for the purpose of insurance coverage or
otherwise, provided that, except as provided in Section 3.3, Trustee shall be the sole owner of all such
contracts or policies and all such contracts or policies shall be held as assets of the Trust Fund; and
3.1.8 to transfer assets of the Trust Fund to a successor trustee as provided in Section
3.2. Notwithstanding that Trustee acts solely as a directed trustee, Trustee shall have the
following ministerial powers and authority, to be exercised in its sole discretion, with respect to the Trust
Fund:
3.2.1 to employ suitable agents and custodians;
3.2.2 to delegate to its Affiliate, or others, any or all of its duties arising out of this Trust
Agreement, including but not limited to, recordkeeping and reporting;
3.2.3 to register any securities or other property held by it hereunder in its own name
or in the name of a nominee with or without the addition of words indicating that such securities or other
property are held in a fiduciary capacity and to hold any securities or other property in bearer form and to
deposit any securities or other property in a depository or clearing corporation;
3.2.4 to reverse any erroneous or provisional credit entries to the Trust Fund
retroactively to the date upon which the correct entry or no entry should have been made;
3.2.5 to make, execute and deliver, as Trustee, any and all deeds, leases, mortgages,
conveyances, waivers, releases, subscription documents, or other instruments in writing necessary or
desirable for the accomplishment of any of the foregoing powers, provided that in connection with the
acquisition, holding or disposition of securities or other property other than publicly -traded securities, that
the Investment Manager, Plan Sponsor, or Plan Administrator, as the case may, has provided written
direction in a form satisfactory to Trustee; and
3.2.6 generally to do all ministerial acts, whether or not expressly authorized, which
Trustee may deem necessary or desirable in carrying out its duties under this Trust Agreement.
3.3. Insurance Contracts. Trustee may, at the direction of Plan Sponsor or Plan Administrator,
(i) enter into one or more contracts issued by an insurance company, including such contracts providing for
investment in a separate account maintained by an insurance company, (ii) transfer to any such insurance
companies a portion of the Trust Fund in accordance with any such contracts, and (iii) hold any such
contracts as a part of the Trust Fund until directed otherwise by Plan Sponsor or Plan Administrator.
Trustee shall have no responsibility to review any contract or the creditworthiness of the insurance company
issuing such contract at any time or from time to time. Plan Sponsor or Plan Administrator may direct
Trustee to (i) demand or accept withdrawals or other distributions under any such contracts; (ii) exercise or
not to exercise any rights, powers, privileges and options under any such contracts; and (iii) assign, amend,
modify, or terminate any such contracts. Trustee shall take no action with respect to any such contracts
except at the direction of Plan Sponsor or Plan Administrator. Trustee shall incur no liability for complying
with, or failing to act in the absence of, any such direction of Plan Sponsor or Plan Administrator. Any
insurance companies issuing any contracts as hereinabove described may deal with Trustee as the
absolute owner of any such contracts and need not inquire as to the authority of Trustee to act with regard
to such contracts. In no event shall the underlying assets of such insurance company in which such
contracts are invested be considered assets of the Plan or part of the Trust Fund.
3.4. Fiduciary Standards.
3.4.1 Trustee shall perform those duties under this Trust Agreement that constitute it
as a fiduciary with the care, skill, prudence, and diligence under the circumstances then prevailing that a
prudent trustee acting in a like capacity and familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims. Trustee shall exercise reasonable care with respect to its
remaining duties and obligations under this Trust Agreement.
3.4.2 Trustee shall not be responsible for the administration of the Plan, for determining
the funding policy of the Plan or the adequacy of the Trust Fund to meet and discharge liabilities under the
Plan, or for the investments of the Plan. Trustee shall not be responsible for any failure of Plan Administrator
or Plan Sponsor to discharge any of their respective responsibilities with respect to the Plan nor be required
to enforce payment of any contributions to the Trust Fund, which duty is assigned to the Plan Administrator,
as a fiduciary to the Plan, and Trustee shall be a directed trustee with respect to contributions and shall
have no obligation to take any action to collect any contributions except upon the direction of the Plan
Administrator.
3.4.3 Except as otherwise required by the Code, under no circumstances shall Trustee
or its Affiliates or agents incur liability for any indirect, incidental, consequential or special damages
(including, without limitation, lost profits) of any form incurred by any person, whether or not foreseeable
and regardless of the form of the action in which such a claim may be brought, with respect to the Trust
Fund or its role as Trustee.
3.5. Prohibition of Diversion.
3.5.1 At no time prior to the satisfaction of all liabilities with respect to Participants in
the Plan shall any part of the corpus or income of the Trust Fund be used for, or diverted to, purposes other
than for the exclusive benefit of such Participants. Except as provided below and Section 4, the assets of
the Trust Fund shall never inure to the benefit of Plan Sponsor and shall be held for the exclusive purpose
of providing benefits to Participants in the Plan and defraying the reasonable expenses of administering the
Plan.
3.5.2 In the case of a contribution that is made by Plan Sponsor by a mistake of fact,
subsection 3.5.1 above shall not prohibit the return to Plan Sponsor of such contribution, without any
earnings, but reduced by any losses, at the direction of Plan Sponsor or Plan Administrator within one year
after the payment of the contribution.
3.5.3 If a contribution by Plan Sponsor is expressly conditioned on initial qualification
of the Plan under Section 401 of the Code, and if the Plan does not so qualify, then subsection 3.5.1 above
shall not prohibit the return to Plan Sponsor of such contribution, without any earnings, but reduced by any
losses, at the direction of Plan Sponsor or Plan Administrator within one year after the date of denial of
qualification of the Plan, to the extent permitted by the Code.
3.5.4 If a contribution by Plan Sponsor is expressly conditioned upon the deductibility
of the contribution under Section 404 of the Code, then to the extent such deduction is disallowed,
subsection 3.5.1 above shall not prohibit the return to Plan Sponsor of such contribution, without any
earnings, but reduced by any losses, at the direction of Plan Sponsor or Plan Administrator, to the extent
disallowed, within one year after the date of such disallowance.
3.6. Valuation of the Trust Fund and Periodic Accounts.
3.6.1 Trustee shall report the value of securities or other property held in the Trust
Fund as follows:
a. Publicly -traded securities for which a price is readily available shall be
reported based upon information and financial publications of general circulation, generally available
statistical and valuation services, and records of security exchanges, or from quotes from brokers
customarily used by Trustee for security pricing purposes;
b. Units or shares in Mutual Funds shall be reported at the most recently
announced net asset value pursuant to regulations under the Investment Company Act of 1940;
c. Units or shares in limited liability companies, or other funds other than Mutual
Funds (each, together with units or shares of Mutual Funds, a "Fund") or group trusts shall be reported at
their most recent asset value or other unit or share value stated by the Fund or its operator received by
Trustee prior to the date of the production of any particular statement of account;
d. Units in group trusts shall be reported at the value stated by the trustee of the
group trust;
e. Contracts of a type that Trustee, acting reasonably, determines to be an over-
the-counter derivative ("OTC Derivative Contracts") shall be reported at the price provided by the applicable
Investment Manager, a vendor selected by that Investment Manager, Plan Sponsor or Plan Administrator;
and
f. Other securities or other property shall be reported at prices certified by the
applicable Investment Manager or at the price provided by a vendor or appraiser selected by the Investment
Manager, Plan Sponsor or Plan Administrator.
3.6.2 Trustee shall follow general market practice with regard to reviewing the
reasonableness of prices received by it under clause 3.6.1(a), but shall not otherwise be responsible for
any error or inaccuracy in any such price as received by Trustee. Plan Sponsor, Plan Administrator, or the
applicable Investment Manager, as the case may be, shall be deemed to have directed Trustee as to any
price reported under clauses 3.6.1(b) through 3.6.1(f), and Trustee shall conduct no review or verification
of any such price.
3.6.3 Plan Sponsor, Plan Administrator or the applicable Investment Manager shall be
responsible for assessing whether the prices reported by Trustee reflect the fair market value or fair value
of the applicable asset at the time as of which Trustee reports the value of the Trust Fund. Trustee shall
have no obligation to make a fair value adjustment of any price received by it, although it will incorporate
into its reports any fair value adjustment that Plan Sponsor, Plan Administrator, or an Investment Manager
may provide instructions for, to the extent that it is practicable for Trustee to do so from an operational
perspective. Trustee shall be fully protected in relying upon the prices reported in accordance with this
Section 3.6 for all purposes under this Trust Agreement, as well as any requirements of the Financial
Accounting Standards Board or Governmental Accounting Standards Board.
3.6.4 Plan Sponsor acknowledges that reported prices of securities and other property
(particularly values of OTC Derivative Contracts and other assets lacking a readily available price) are
indicative values only and do not indicate the actual terms at which the relevant asset or liability could be
sold or unwound.
3.6.5 Trustee shall have no responsibility to determine the price of OTC Derivative
Contracts except as separately agreed to in writing between Plan Sponsor and Trustee.
3.6.6 Trustee or its agent shall keep records of all transactions relating to the Trust
Fund, which shall be made available at reasonable times during normal working hours to persons
designated by Plan Sponsor or as may be required by law. Trustee or its agent shall render an accounting
and statement of the Trust Fund assets and their values to Plan Sponsor as or on behalf of Plan
Administrator at least annually. Plan Administrator may approve or file objections to such accounting on
behalf of itself and Plan Sponsor by an instrument in writing delivered to Trustee. If Plan Administrator
does not file with Trustee objections to any such accounting within ninety (90) days after its receipt, Plan
Administrator shall be deemed to have approved such accounting on behalf of itself and Plan Sponsor. In
such case, or upon the written approval of Plan Administrator of any such accounting, Trustee and its agent
shall, to the extent permitted by law, be discharged from all liability for its acts or failures to act described
in such accounting. Except to the extent otherwise provided in the Code, no person, other than Plan
Sponsor or Plan Administrator, may require an accounting or bring any action against Trustee with respect
to the Trust Fund.
3.6.7 Nothing contained in this Trust Agreement or in the Plan shall deprive Trustee or
its agent of the right to have a judicial settlement of its accounts. In any proceeding for a judicial settlement
of the accounts of Trustee or its agent or for instructions with regard to the Trust, and to the extent permitted
by law, the only necessary parties thereto in addition to Trustee and its agent as appropriate shall be the
Plan Administrator.
3.7. Plan Administrator. Plan Sponsor shall certify to Trustee and its agent the names of the
entity or persons from time to time constituting the Plan Administrator and of any other persons with
authority to provide direction on behalf of the Plan under this Trust Agreement. All directions to Trustee or
its agent by Plan Administrator or any other authorized representatives shall be in writing which includes
directions received via electronic methods acceptable to the Trustee. Trustee and its agent shall be entitled
to rely without further inquiry upon all such written directions received from the Plan Administrator or any
other authorized persons.
3.8. Plan -to -Plan Transfers; Rollovers.
3.8.1 Trustee or its agent may transfer part or all of the property representing a
Participant's interest in the Plan to the trustees of any trust qualified under Section 401(a) of the Code or
Section 457(g) of the Code, whichever is applicable, in a plan -to -plan transfer, or with respect to an eligible
rollover distribution, to any eligible retirement plan as provided under Section 402(c) of the Code or Section
457(e) of the Code, whichever is applicable. Trustee or its agent may make such a transfer only at the
direction of the Plan Administrator or Plan Sponsor.
3.8.2 Trustee or its agent may accept as part of the Trust Fund such property as is
acceptable to Trustee which represents a Participant's retirement benefits transferred from a trust qualified
under Section 401(a) of the Code or Section 457(g) of the Code, whichever is applicable, or transferred as
a permissible rollover under Section 402(c) or 408(d)(3) of the Code or Section 457(e) of the Code,
whichever is applicable. The amount of such benefits shall at all times be separately accounted for by Plan
Sponsor. A Participant shall at all times be fully vested in any property so transferred as a rollover to the
Trust Fund. Such property shall be distributed to the Participant at the direction of the Plan Administrator
within the time required for distribution of his retirement benefits under the applicable provisions of the Plan.
3.9. Participating Employers.
10
3.9.1 Any entity that is required to be treated as a single employer or otherwise
required to be aggregated with Plan Sponsor and which has adopted the Plan in accordance with its terms
(a "Participating Employer") shall become a party to this Trust Agreement upon Plan Sponsor delivering to
Trustee or its Affiliates documentation that it agrees to adopt the Plan, to become a party to this Trust
Agreement, and to be bound by all the terms and conditions of the Plan and this Trust Agreement. Plan
Sponsor shall have the sole authority to enforce this Trust Agreement on behalf of all Participating
Employers and Trustee or its agent shall in no event be required to deal with any such Participating
Employer except by dealing with Plan Sponsor as such Participating Employer's agent. Irrespective of the
number of Participating Employers which may become parties to this Trust Agreement, Trustee or its agent
shall in all respects invest and administer the Trust Fund as a single fund for investment and accounting
purposes without allocation of any part of the Trust Fund as between Plan Sponsor and any Participating
Employer.
3.9.2 A Participating Employer which has adopted the Plan shall cease to be a party
to this Trust Agreement upon Plan Sponsor delivering to Trustee documentation that it is terminating its
participation in the Plan. In such event, or in the event of the termination of Plan Sponsor or of any such
Participating Employer, or in the event of the establishment, modification or continuance of any other
retirement plan which separately or in conjunction with this Plan is qualified under Section 401(a) of the
Code, Trustee or its agent shall continue to hold the portion of the Trust Fund which is attributable to the
participation in the Plan of the employees and their beneficiaries affected by such termination, and this
Trust Agreement shall continue in force with respect to such portion, until otherwise directed by the Plan
Administrator or Plan Sponsor, in accordance with the provisions of the Plan and the Code.
3.10. Alienation. No interest in the Trust Fund shall be assignable or subject to anticipation,
sale, transfer, mortgage, pledge, charge, garnishment, attachment, bankruptcy or encumbrance or levy of
any kind, and the Trustee or its agent shall not recognize any attempt to assign, sell, transfer, mortgage,
pledge, charge, garnish, attach or otherwise encumber the same except to the extent that such attempt is
made pursuant to (i) a court order determined by the Plan Administrator to be a qualified domestic relations
order, as defined in Section 414 of the Code or (ii) as required by a federal tax levy made in accordance
with Section 6331 of the Code, (iii) pursuant to an offset under Section 401 (a)(1 3)(C) of the Code or (iv) as
otherwise allowed under the Code.
3.11. Bond. Trustee shall not be required to give any bond or any other security for the faithful
performance of its duties under this Trust Agreement except as required by law.
3.12. Proxies and Other Incidents of Ownership
3.12.1 The Trustee shall have no discretion with respect to voting proxies, tendering
shares in a tender or exchange offer, or exercising any other rights of ownership.
3.12.2 The Trustee shall deliver or cause to be delivered, as directed by the Plan
Sponsor or Plan Administrator, to the Plan Sponsor, Plan Administrator, the designated Investment
Manager, or a designated transfer agent, all proxies and proxy related materials relating to investments
held under the Trust Agreement received by Trustee.
3.12.3 The Plan Sponsor shall assign a fiduciary (which may be a person, committee or
entity designated by the Plan Sponsor, or the Plan Sponsor, but which shall not be the Trustee) who shall
be responsible for voting proxies, tendering shares and exercising shareholder rights.
3.12.4 With respect to investments held in Participant -directed brokerage accounts,
each Participant shall be responsible for directly voting proxies, tendering shares and exercising
shareholder rights.
4. Compensation and Expenses
4.1. Trustee shall be compensated in accordance with the fee schedule provided to Plan
Sponsor which may be incorporated as part of the fee schedule or other fee documentation provided to the
Plan Sponsor under an agreement between the Plan Sponsor and an Affiliate of the Trustee to provide
recordkeeping or other administrative services to the Plan where such fees may be paid by the Affiliate to
the Trustee on behalf of the Plan. Trustee reserves the right to liquidate Trust assets in satisfaction of its
fees hereunder in the event of non-payment by Plan Sponsor, but only after reasonable advance notice is
provided to the Plan Sponsor of any such non-payment of fees.
4.2. The compensation received by the Trustee for its services is reflected in the Plan's fee
disclosure report provided by Empower and Section 4.3 below. If Plan Sponsor selects a trustee or
custodian, as applicable, that requires changes to any procedures or services in the Agreement, the Trustee
reserves the right to change fees in this section, but ony after reasonable advance notice is provided to the
Plan Sponsor regarding any such changes to fees.
4.3. If Plan assets pass through a bank account held by the Trustee or its Affiliates, the
Trustee may earn credits and/or interest on Plan assets awaiting investment or pending distribution. Any
credits or interest earned by the Trustee are aggregated with credits and/or interest earned by the
Trustee's Affiliates and will be used to defray the aggregate expenses for the maintenance of bank
accounts. The Trustee will not retain credits and/or interest earned in excess of such maintenance
expenses. Credits and/or interest are earned from the use of (i) uninvested contributions received too late
in the day or not received in good order to be invested same -day and (ii) proceeds from Investment
Option redemptions where Plan distribution checks have not been presented for payment by Participants.
Credits and/or interest (i) begin to accrue on contributions on the date such amounts are deposited into
the bank account and end on the date such amounts are invested pursuant to Participant instructions,
and (ii) begin to accrue on distributions on the date the check is written or on the ACH date, as applicable,
and end on the date the check is presented for payment or when the ACH clears against the account, as
applicable. Earnings of credits and/or interest are at the rate the bank provides from time to time.
4.4. Trustee shall pay out of the Trust Fund, income taxes levied or assessed under existing
or future laws against the Trust Fund, (including all Plan participant accounts) upon direction by a
regulatory authority or agency or Plan Sponsor or Plan Administrator, as applicable.
4.5 Plan Sponsor shall pay, or if not paid by Plan Sponsor and the Plan so permits, Plan Sponsor
directs Trustee to pay from the Trust Fund, the reasonable expenses relating to the Plan and Trust Fund
that are permitted by law to be paid from the Trust Fund.
5. Confidential Information
5.1. In order to perform the Services, both parties may have access to certain information of
the other party, including, without limitation, trade secrets, commercial and competitively sensitive
information of a party related to business methods or practices, and proprietary software or websites of the
party ("Confidential Information"). For the purpose of clarity, any software or website made available by
Trustee or its Affiliates ("Trustee Software") is Confidential Information of Trustee. The parties mutually
agree to hold all Confidential Information of the other party in confidence using it solely for the purpose of
performing or receiving Services under this Trust Agreement and not to disclose any Confidential
Information of the other party to anyone except the parties' Affiliates, suppliers, and respective personnel
who have a need to know such information in connection with the performance or receipt of Services
hereunder and who are subject to confidentiality obligations or as directed or approved by the other party
or its agents. Confidential Information does not include: information that is otherwise in the public domain
through no action of the non -disclosing party; information that is acquired by a party from a person other
than the other party or its agents without any obligation of confidentiality; or information that is independently
developed by a party without reference to the Confidential Information of the other party.
5.2. Permitted Disclosures of Confidential Information.
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5.2.1 Legally Required Disclosures. In the event a party is required to make a legally
required disclosure of the other party's Confidential Information, such party shall notify the other party of
the disclosure as soon as reasonably practicable and shall cooperate with any efforts by such party to
obtain protective treatment of such Confidential Information to the extent permitted by law. The foregoing
shall not apply to (i) broad -based regulatory examinations associated with a party's general business or
operations; (ii) disclosures made in conjunction with a law enforcement investigation or inquiry; (iii) or where
notice is prohibited by law.
5.3. Authorized Disclosures. Plan Sponsor authorizes Trustee to disclose Confidential
Information and Data to Plan Sponsor's advisors, third -party administrators, service providers (such as
payroll providers) and representatives authorized by Plan Sponsor in writing to receive such Data. In
addition, Plan Sponsor authorizes Trustee to disclose Confidential Information to the following persons or
entities, provided they are subject to confidentiality obligations and have a need to know such information:
(i) any subcustodian, subcontractor, agent, securities depository, securities exchange, broker, third party
agent, proxy solicitor, issuer, or any other person that Trustee believes is reasonably required to receive
such information in connection with Trustee's provision of relevant services under this Trust Agreement; (ii)
its professional advisors, auditors or public accountants; (iii) its Affiliates, and (iv) any revenue authority or
any governmental entity in relation to the processing of any tax relief claim.
6. Data Protection.
6.1. Mutual Obligation to Protect Data. Trustee, Plan Adminstrator and Plan Sponsor each
agree to maintain and hold in confidence all Data and Confidential Information, as applicable, received in
connection with the performance of Services under this Trust Agreement. Trustee and Plan Sponsor agree
that their collection, use and disclosure of all Data is and will be at all times conducted in compliance with
all applicable Data Protection Laws. Each party will implement, support, and maintain appropriate physical
and logical security measures designed to secure Data, and will take all commercially reasonable
organizational and technical steps to protect against unlawful and unauthorized processing of Personal
Data. In accordance with the foregoing, Trustee, in conjunction with its Affiliates, maintain a comprehensive
data security program designed to safeguard Data and access to the Trustee Software and systems.
6.2. Mutual Notice of an Information Security Breach. The parties will promptly notify each
other in the event of an information security breach. Such notice shall include: (i) the consequences of the
breach, including (without limitation) any potential impact on the other party's security measures, systems,
Data, Confidential Information, or the Trustee Software; and (ii) the corrective action taken to remedy the
breach. In addition to the foregoing, Plan Sponsor will notify Trustee immediately upon discovering a
compromise of the security and/or log -on credentials of any Plan Sponsor employee or agent that has a
plan administration role in Trustee's system.
6.3. Cybersecurity. Without limiting the generality of the foregoing, Trustee represents that its
security standards and its data security program (as may be amended from time to time), substantially
aligns with the "Cybersecurity Program Best Practices" issued by the U.S. Department of Labor in April
2021. As additional information, clarification, and interpretation are made available further defining the
scope, meaning and effect of such guidance (as well as its "Online Security Tips" and "Tips for Hiring a
Service Provider with Strong Security Practices"), and/or in order to assist Plan Sponsor in meeting their
obligations under such guidance (and applicable law) and mitigating cybersecurity and related risks,
Trustee agrees to provide additional information regarding its data and cybersecurity practices as
reasonably requested by Plan Sponsor. Trustee agrees to comply with all laws applicable to Trustee in its
provision of the Services, including cybersecurity laws applicable to Trustee in its provision of the Services.
7. Business Continuity & Disaster Recovery
Trustee will, in conjunction with its Affiliates, maintain business continuity and disaster recovery
procedures to address the security, integrity and availability of the technology, operational, financial, human
and other resources required to provide mission -critical Services in the event of a natural disaster or other
interruption of normal business operations. Such procedures will be tested at least once annually.
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8. Records
Trustee shall retain all records in its custody and control that are pertinent to performance under
this Trust Agreement in accordance with its record retention policy, as amended from time to time and as
required by law. Subject to the foregoing, each party agrees to return or destroy the other party's
Confidential Information and Data once it is no longer required for the purpose of performing or receiving
the Services, provided that the parties are not obligated to destroy copies of Confidential Information or
Data that must be retained for audit, legal or regulatory purposes, or is stored in non -readily accessible
electronic format, such as on archival systems; in such cases Trustee's data protection obligations shall
continue until such Data is destroyed in accordance with Trustee's record retention policy.
9. Intellectual Property Rights
9.1. Plan Sponsor Materials. As between the parties hereto, excluding the Trustee Materials
(as defined below), Plan Sponsor shall own all materials, trademarks, tradenames, logos, trade dress, and
other Confidential Information provided or made accessible by Plan Sponsor to Trustee for use in providing
the Services (collectively, the "Plan Sponsor Materials").
9.2. Trustee Materials. As between the parties hereto, Trustee and its Affiliates shall own all
materials, documentation, user guides, forms, templates, business methods, trademarks, tradenames,
logos, websites, software, technology, computer codes, domain names, text, graphics, photographs,
artwork, interfaces and other information or material provided by Trustee or its Affiliates hereunder
(collectively, the "Trustee Materials"). Trustee grants to Plan Sponsor a non-exclusive, non -transferable
and non-sublicensable license to use the Trustee Materials during the term of the Trust Agreement solely
for purposes of using Trustee's Services hereunder and subject to the terms and conditions set forth in this
Trust Agreement. All rights with respect to the Trustee Materials not specifically granted hereunder are
reserved by Trustee.
10. Liability & Indemnification
10.1. Indemnification. Trustee shall defend, indemnify, and hold harmless the Plan Sponsor
and its affiliates, members, directors, officers, shareholders, employees, representatives, and agents from
and against any and all expenses, costs, reasonable attorneys' fees, settlements, fines, judgments,
damages, liabilities, penalties or court awards asserted by a third party (collectively, "Damages") to the
extent resulting from the Trustee's (i) breach of this Trust Agreement, (ii) negligence, fraud, breach of
fiduciary duty, or willful misconduct, or (iii) violation of applicable law. Notwithstanding anything to the
contrary herein, Trustee shall not be liable to Plan Sponsor for any Damages resulting from: (i) any acts or
omissions undertaken at the Direction of the Plan Sponsor or any agent or any third party authorized by
Plan Sponsor to provide direction to Trustee, including but not limited to prior service providers, investment
advisors, or any authorized agent thereof; or (ii) Plan Sponsor's or its designee's failure to provide accurate
documents, material, information or data to Trustee or its Affiliates, as applicable, on a timely basis.
Plan Sponsor acknowledges that Trustee and its directors, officers, employees and authorized
representatives are not responsible for the investment performance of any investments under the Trust.
10.2. Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS
AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL,
PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION,
LOSS OF REVENUE OR PROFIT) EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES.
11. Dispute Resolution
The parties shall engage in reasonable and good faith discussions to resolve any dispute arising
out of or relating to this Trust Agreement. If the parties are unable to agree between themselves, the parties
will submit the dispute to non -binding mediation conducted by a private mediator agreed to by both parties.
14
If the parties cannot agree on a mediator, the mediator may be selected by a nationally recognized,
independent arbitration or mediation organization to which the parties mutually agree. The costs of
mediation shall be borne equally by the parties, and each party shall pay its own expenses. If the parties
are unable to resolve the dispute through non -binding mediation, either party may initiate litigation;
provided, however, that if one party requests mediation and the other party rejects the proposal or refuses
to participate, the requesting party may initiate litigation.
11.1. Resignation or Removal of Trustee.
11.1.1 Trustee may resign at any time by giving ninety (90) days' written notice to Plan
Sponsor. The Plan Sponsor may remove Trustee at any time by giving ninety (90) days' written notice to
Trustee. In the case of the resignation or removal of Trustee, the Plan Sponsor shall appoint a successor
trustee who shall have the same powers and duties as those conferred upon Trustee. If the Plan Sponsor
fails to appoint a successor Trustee as of the effective date of the Trustee resignation or removal or as of
the effective date of the termination of this Trust Agreement and no other Trustee remains, the Trustee will
treat the Plan Sponsor as having appointed itself as Trustee and as having filed the Plan Sponsor's
acceptance of appointment as successor Trustee with the Trustee.
11.1.2 Trustee shall execute, acknowledge and deliver all documents and written
instruments necessary to transfer and deliver all of the assets of the Trust Fund and all rights and privileges
therein to the successor trustee or, in its discretion, to a court of competent jurisdiction as the Trustee
deems necessary, within a reasonable time, after reserving such reasonable amount as it shall deem
necessary to provide for any expenses and payments then chargeable against the Trust Fund for which the
Trust Fund may be liable, or for payment of the retiring Trustee's fees and expenses in connection with the
settlement of its account or otherwise. If the assets so withheld shall be insufficient or excessive for such
purposes, the retiring Trustee shall be entitled to reimbursement for any deficiency out of the Trust Fund
from the successor trustee, or shall deliver the excess to the successor trustee, as the case may be.
Following the effective date of the removal or resignation of Trustee, upon request, the Trustee shall provide
the Plan Sponsor a written account of all Trust Fund transactions since the most recent report provided to
the Plan Sponsor. The provisions of Section 3.6 shall be applicable to such account. The term "Trustee"
as used in this Trust Agreement shall be deemed to apply to any successor trustee, permitted under Section
11.1.1, acting hereunder.
11.1.3 Upon the appointment of a successor trustee, the resigning and removed Trustee
shall be discharged from further accountability for the Trust Fund, and shall be under no further duty,
obligation or responsibility for the disposition by such successor trustee of the Trust Fund or any part
thereof.
12.Term & Termination
12.1. Term. This Trust Agreement may be terminated as specified below.
12.2. Termination. This Trust Agreement may be terminated as follows:
12.2.1 in the event the contract providing a funding medium or providing for
recordkeeping services is discontinued or terminated with an Affiliate of the Trustee, this Trust Agreement
shall be terminated as well as of the date of discontinuance or termination of such contract with no further
notice required from either party to the other; or
12.2.2 this Trust Agreement and the Trust created may be terminated at any time by the
Plan Sponsor upon ninety (90) days written notice, delivered to the Trustee. Upon receipt of such notice
of termination, the Trustee shall, after payment of all expenses incurred in the administration of the Trust
Fund and such compensation as to which Trustee may be entitled, distribute the Trust Fund in cash or in
kind to such persons or entities, including Plan Sponsor, at such time and in such amounts as Plan
Administrator shall direct, which direction shall be in conformity with the provisions of the Plan and
applicable provisions of the Code. Notwithstanding the foregoing, Trustee shall not be required to pay out
15
any assets of the Trust Fund until it shall have received such rulings or determinations of the Internal
Revenue Service or any other administrative agency as it may deem necessary or appropriate in order to
assure itself that any such payment is made in accordance with the provisions of law or that it will not
subject the Trust Fund or the Trustee, individually or as such Trustee, to liability. The Plan Sponsor or Plan
Administrator shall be responsible for obtaining such rulings.
12.2.3 Notwithstanding the foregoing, either party may terminate this Trust Agreement
immediately upon written notice to the other party in the event a material breach of this Trust Agreement
by the other party has not been cured within thirty (30) days of that party being given written notice of the
material breach.
13. Miscellaneous
13.1. Affiliates. Plan Sponsor acknowledges and agrees that Trustee may utilize the services
of Affiliates, agents, subcustodians, vendors and suppliers selected by Trustee. Trustee's use of any such
party will not relieve Trustee of its obligations hereunder, and Trustee shall at all times remain liable for the
performance of the Services hereunder.
13.2. Relationship of the Parties. The relationship between the parties is that of independent
contractors. Neither Trustee nor its personnel shall be considered employees of Plan Sponsor or Plan
Administrator for any purpose. None of the provisions of this Trust Agreement shall be construed to create
an agency, partnership or joint venture relationship between the parties or the partners, officers, members
or employees of the other party by virtue of either this Trust Agreement or actions taken pursuant of this
Trust Agreement.
13.3. Assignment. This Trust Agreement shall be binding upon and inure to the benefit of each
of the parties, their Affiliates, successors and permitted assigns; provided, however, that neither party may
assign its rights or obligations hereunder without the other party's prior written consent. Notwithstanding
the foregoing, a party may assign this Agreement in connection with: (i) the sale of substantially all of its
assets to an entity that assumes the assignor's obligations under this Agreement; (ii) a merger, acquisition
or divestiture; and/or (iii) a transfer to a parent or Affiliate, in each case without the other party's consent.
Any corporation which shall, by merger, consolidation, purchase or otherwise, succeed to substantially all
the trust business of Trustee shall, upon such succession, and without any appointment or other action by
any person, be and become successor Trustee hereunder.
13.4. Entire Agreement; Amendment; Waiver.
13.4.1 This Trust Agreement, including all appendixes, exhibits, schedules, notices and
attachments, constitutes the entire agreement of the parties with respect to the subject matter hereof, and
supersedes all prior drafts, agreements, negotiations and proposals, written or verbal, relating to the
Services, and supersedes any prior trust agreement, statement, or representation relating to the obligations
of the Trustee, whether oral or written. Except as otherwise provided herein, this Trust Agreement may be
modified only by an amendment signed by authorized representatives of each party. Any Trustee policies
that are attached to or referenced in this Trust Agreement may be modified by Trustee at any time. No
waiver of any breach of any provision of this Trust Agreement shall constitute a waiver of any prior,
concurrent or subsequent breach of such provision or any other provision hereof and no waiver shall be
effective unless made in writing.
13.4.2 Notwithstanding anything contained in this Section to the contrary, no
amendment shall divert any part of the Trust Fund to, and no part of the Trust Fund shall be used for, any
purpose other than for the exclusive purpose of providing benefits to Participants; provided, however, that
nothing in this Section shall be deemed to limit or otherwise prevent the payment from the Trust Fund of
expenses and other charges as provided in Section 4.
16
13.5. Governing Law; Waiver of Jury Trial. To the extent not preempted by federal law, this
Trust Agreement and the Trust shall be construed, regulated, and administered under the laws of the State
of Colorado, as applicable, without regard to conflict of law principles, and any claim arising under or related
to this Trust Agreement shall be subject to the exclusive jurisdiction of the federal and state courts located
in Colorado. Both parties agree to waive any right to have a jury participate in the resolution of any dispute
or claim arising out of, connected with, related to or incidental to this Trust Agreement to the fullest extent
permitted by law.
13.6. Force Majeure. Neither Trustee nor Plan Sponsor shall be liable to the other for any and
all losses, damages, costs, charges, counsel fees, payments, expenses or liability due to delay or
interruption in performing its obligations hereunder, and without the fault or negligence of such party, due
to causes or conditions beyond its control, including, without limitation, labor disputes, riots, war and war-
like operations including acts of terrorism, epidemics, explosions, sabotage, acts of God, civil disturbance,
governmental restriction, transportation problems, pandemics, failure of power or other utilities including
phones, internet disruptions, fire or other casualty, natural disasters, or disruptions in orderly trading on any
relevant exchange or market, failure of or the effect of rules or operations of any external funds transfer
system, inability to obtain or interruption of external communications facilities, or any other cause that is
beyond the reasonable control of either party.
13.7. Severability. The provisions of this Trust Agreement are severable, and if for any reason
a clause, sentence, paragraph or provision of this Trust Agreement is determined to be invalid by a court
or federal or state agency, board or commission having jurisdiction over the subject matter thereof, such
invalidity will not affect other provisions of this Trust Agreement that can be given effect without the invalid
provision.
13.8. Notices. All formal notices required by this Trust Agreement will be in writing and shall be
sent to Trustee as set forth below or to Plan Sponsor, as the case may be. The Plan Sponsor will be
deemed to have received any applicable notices on behalf of the Plan Administrator. All notices sent shall
be effective upon receipt. Provided, however, that upon either party's written request, such communications
shall be sent to such other address as a party may specify. No communication shall be binding on either
party until it is received by the party.
Trustee:
Notice To Trustee: Empower Trust Company, LLC
8515 East Orchard Road
Greenwood Village, CO 80111
Attn: Trust Officer
With a copy to: Empower Trust Company, LLC
8515 East Orchard Road
Greenwood Village, CO 80111
Attn: General Counsel
Plan Sponsor:
Notice To Plan Sponsor Plan Sponsor's address of record as provided to the Trustee or
its Affiliates from time to time.
13.9. Headings; Defined Terms; Counterparts. Section headings used in this Trust
Agreement are intended for reference purposes only and shall not affect the interpretation of this Trust
Agreement. Unless the context requires otherwise, capitalized terms defined in this Trust Agreement have
the meanings set forth herein for all purposes of this Trust Agreement including any Schedules or Exhibits.
This Trust Agreement may be executed in counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same agreement. The parties' execution and delivery of this
17
Trust Agreement by facsimile, email, or electronic copies shall have the same force and effect as execution
and delivery of an original. Neither the gender nor the number (singular or plural) of any word shall be
construed to exclude another gender or number when a different gender or number would be appropriate.
13.10. Survival. The provisions of the following sections shall survive the termination of this Trust
Agreement: Compensation and Expenses; Confidential Information; Privacy & Data Security; Records;
Intellectual Property Rights; Liability & Indemnification; Dispute Resolution; Governing Law; Waiver of Jury
Trial; Survival; Severability; and any other section that would by its context be reasonably expected to
survive termination.
13.11. Reports. The Trustee has accepted this Trust with the understanding that Plan Sponsor
or Plan Administrator has entered or is entering into a service agreement with an Affiliate of the Trustee
whereby such Affiliate will provide recordkeeping services for all Plan assets held pursuant to this Trust
Agreement. The recordkeeping reports and related financial information provided by Affiliate shall constitute
the reports of the Trustee.
13.12. Signatures. By signing this Trust Agreement the parties certify that they have read and
understood it, that they agree to be bound by its terms, and that they have the authority to sign it. This
Trust Agreement is not binding on either party until signed by both parties.
[Signature Page Follows]
M.
IN WITNESS WHEREOF the Plan Sponsor, Plan Administrator, if applicable, and the Trustee have
executed this instrument on such dates as specified below.
Empower Trust Company, LLC
Signature a�'(
r�e`�'
Printed Name d\C�
�:r,SNe
Title
Date Signed
Attest:
AV
AWVYV AA
Leilani 1, Brown PC, City Clerk
Date:
Plan Sponsor: City of Newport Beach
S re
'l C
Printed Name
1�% 1MG�nU�c►�
Title
Date Signed
19
Plan Administrator: (If other than Plan
Sponsor)
Signature
Printed Name
Title
Date Signed
APPROVED AS TO FORM:
CITY ATTORNEYS OFFICE
Date: ?/f ,2�2r2z4-/
sy:
Aaron C. Harp, City Attorney
IN WITNESS WHEREOF the Plan Sponsor, Plan Administrator, if applicable, and the Trustee have
executed this instrument on such dates as specified below.
Empower Trust Company, LLC
Signature
Mereda Brandt
Printed Name
Sr. Trust Ops Officer
Title
7/12/2024
Date Signed
Plan Sponsor: City of Newport Beach
Signature
Printed Name
Title
Date Signed
Plan Administrator: (If other than Plan
Sponsor)
Signature
Printed Name
Title
Date Signed
19