Retirement Healthcare Program
Administrative Services and
Recordkeeping Agreement
THIS AGREEMENT, which includes the Schedules attached hereto ("Agreement"), is between The City of San Marino ("Plan Sponsor") and Teachers Insurance and Annuity Association of America ("TIAA"). TIAA agrees to provide administrative services with respect to Plan Sponsor's retiree health plan for employees and their eligible dependents beginning July 25, 2014, in consideration of payment by Plan Sponsor of the agreed upon fee and performance by Plan Sponsor of the functions itemized in this Agreement.
WITNESSETH:
WHEREAS, Plan Sponsor sponsors and maintains the City of San Marino Retirement Health Savings Plan (the "Plan"), for the benefit of eligible employees, retirees and, if permitted under the Plan, their dependents ("Members") and will establish a trust to hold contributions by the employer and, if applicable, by the employee; WHEREAS, assets of such Plan's trust ("Plan Trust") are allocated to and invested in certain mutual funds, annuities or other investment options selected by Plan Sponsor for the exclusive benefit of Members; and WHEREAS, Plan Sponsor and the administrator of the Plan appointed by Plan Sponsor (the "Plan Administrator") seek the provision of certain third party administration services in connection with the operation and administration of the Plan;
WHEREAS, TIAA and Plan Sponsor entered into a recordkeeping agreement effective as of July 25, 2014 (the "Original Agreement"), and each party desires to amend and restate the Original Agreement in its entirety effective as of May 1, 2017;
NOW, THEREFORE, in consideration of the promises and mutual covenants, representations and warranties set forth herein, Plan Sponsor and TIAA agree, as follows:
1. Appointment by Plan Sponsor
Plan Sponsor hereby appoints TIAA as third-party administrator and recordkeeper for the Plan to provide ministerial and recordkeeping services listed in Schedule A and claim administration and recordkeeping services described in Schedule B of this Agreement. TIAA shall provide such services in accordance with the provisions of the Plan, but TIAA shall have no discretionary control over the Plan.
1.2. TIAA may perform any of the services described in this Agreement through agents and subcontractors selected by TIAA. TIAA shall reasonably supervise any agent or subcontractor it may retain. The retention of agents or subcontractors shall not relieve TIAA of its duties hereunder.
TIAA, with whom Plan Sponsor has contracted directly, shall ultimately be responsible for all work performed by any agents and subcontractors that TIAA may retain to perform services described in this Agreement.
Retirement Healthcare Program Administrative Services and Recordkeeping Agreement
2. Non-Fiduciary Status
2.1. The duties to be performed by TIAA under this Agreement shall be ministerial in nature. Nothing in this Agreement should be construed as granting discretionary authority or discretionary responsibility to TIAA, its affiliates, officers, employees and subcontractors with respect to the Plan, the Members, or the investments under the Plans. TIAA shall manage records relating to the administration of the Plan.
2.2. The power to determine which funding options are made available to Members under the Plan (as listed in Schedule C of this Agreement) is reserved to the Plan Sponsor and fiduciary(ies) of the Plan. The Plan Sponsor and/or fiduciary(ies) of the Plan, in their sole discretion, shall select the Plan funding options that are available to Members from the funding options that TIAA makes available on its recordkeeping platform. TIAA shall have no responsibility for the selection of funding options under the Plan and shall not render investment advice to any person in connection with the selection of such options.
3. Changes to Administrative Procedures
3.1. TIAA, its agents and subcontractors reserve the right to define and make changes to their administrative practices and procedures in order to assure quality service.
TIAA shall notify Plan Sponsor of any changes to its administrative practices and procedures or those of its agents and subcontractors that might affect the administration of the Plan or Plan Sponsor's obligations under this Agreement. TIAA shall obtain Plan Sponsor's approval before implementing any changes. Approval shall not be unreasonably withheld by Plan Sponsor.
4. Data Requirements; Transmittal of Data
TIAA and Plan Sponsor shall work together to develop guidelines for data processing and transmittal of data. Any data the Plan Sponsor may be required to provide shall be submitted in a timely manner and shall be materially correct and complete. Any data referred to in this Section shall be subject to the terms of Section 11 of this Agreement, including, without limitation, the terms of any agreements incorporated therein by reference.
5. Personnel and Resources
5.1. TIAA, its agents, and subcontractors shall provide sufficient personnel and resources as may be necessary to perform the services contemplated under this Agreement in a thorough and professional manner. The personnel designated by TIAA, its agents, and subcontractors to perform the services contemplated under this Agreement shall have the training and background necessary to perform such services.
Retirement Healthcare Program Administrative Services and Recordkeeping Agreement
6. Errors, Omissions or Delays
6.1. Each Party to this Agreement will be responsible to the other Party for its own respective errors, omissions or delays in the performance of services contemplated under this Agreement. Each Party shall notify the other Party of any errors, omissions or interruptions in, or delay or unavailability of the services contemplated under this Agreement, or if it is unable to perform any of its obligations under this Agreement. Such notice shall be provided as promptly as possible or in accordance with written guidelines approved by both Parties. Unless otherwise agreed upon by the Parties, notifications under this provision may be made by telephone or by e-mail. Such notice shall not relieve the notifying Party of its obligations under this Agreement.
6.2. The Plan Sponsor acknowledges and agrees that in performing the services contemplated under this Agreement, TIAA, its agents and subcontractors must rely on data and information provided to TIAA by the Plan Sponsor and Members, and that TIAA is not obligated to inquire into and is not responsible for the authenticity or accuracy of such data or information. If TIAA is required to repeat or re-process any task as a result of incomplete or inaccurate information provided by the Plan Sponsor, TIAA may charge a reasonable reprocessing fee. In addition, if amounts are sent with incorrect instructions, or in amounts that do not reconcile with the instructions given, TIAA may apply the amounts for which accurate instructions are given and any excess will be deposited into the Plan's Trust and held in suspense until the Plan Sponsor provides instructions regarding the disposition of such amounts.
6.3. The Plan Administrator of the Plan shall review all recordkeeping reports and shall immediately notify TIAA of any claimed error with respect to any data or report. TIAA assumes no responsibility for verification and any report not challenged in writing by the Plan Administrator within ninety (90) days of receipt thereof shall be conclusively presumed accurate and complete. The foregoing notwithstanding, TIAA will, at the Plan Administrator's request, make a good faith effort to correct any error brought to its attention after such time period has expired.
7. Representations, Warranties and Covenants
7.1. Each Party represents that it is free to enter into this Agreement and that by doing so it will not breach or otherwise impair any other agreement or understanding with any other person, corporation or entity.
TIAA further represents, warrants and covenants that:
a. It has full power and authority under applicable law, and has taken all action necessary, to enter into and perform this Agreement, and that the person executing this Agreement on its behalf is duly authorized and empowered to execute and deliver this Agreement; b. This Agreement, when executed and delivered, shall constitute the valid, legal and binding obligation of TIAA, enforceable in accordance with its terms; Retirement Healthcare Program Administrative Services and Recordkeeping Agreement c. TIAA is a stock life insurance company duly organized, existing and in good standing under the laws of the State of New York; and
The Plan Sponsor further represents, warrants and covenants that:
d. It has full power and authority under applicable law, and has taken all action necessary, to enter into and perform this Agreement, and that the person executing this Agreement on its behalf is duly authorized and empowered to execute and deliver this Agreement; e. This Agreement, when executed and delivered, shall constitute the valid, legal and binding obligation of the Plan Sponsor, enforceable in accordance with its terms; and f. In the event TIAA or its affiliates or subsidiaries provide the Plan Sponsor with communications marked "institutional use" only, the Plan Sponsor agrees that such materials are for its use and not intended for use with or distribution to Plan Members. The Employer agrees not to distribute such materials to Plan Members.
8. Fees
8.1. Plan Sponsor understands and accepts that TIAA may be compensated for its services under this Agreement. All fees shall be listed in Schedule D of this Agreement.
8.2. In addition to the fees described in Schedule D, Plan Sponsor understands and accepts that 1) charges may be imposed by the funds listed in Schedule C of the Agreement, including any non- proprietary funds that may be added to the Schedule, and 2) certain non-proprietary funds may pay to TIAA a "revenue sharing" amount. Plan Sponsor shall refer to the prospectus for each of the funds listed in Schedule C. The Plan Sponsor shall direct TIAA, in its capacity as recordkeeper, to arrange for a debit to each notional account under the Plan or issue an invoice to the Plan Sponsor for the appropriate amount to cover administrative service fees for services essential to the operation of the Plan. Such charges, if deducted, will be reflected in each Member's notional account.
8.3. Plan Sponsor understands and accepts that TIAA may collect fees on behalf of its subsidiaries and affiliates, such as TIAA-CREF Trust Company, FSB, that have entered into agreements with Plan Sponsor to provide services to the Plan.
8.4. TIAA shall be solely responsible for paying for the services performed by its agents and subcontractors and all taxes thereof. When this Agreement is terminated, TIAA shall settle all outstanding charges and claims of its agents and subcontractors.
9. Maintenance of Records
9.1. TIAA agrees that the books, records, accounts, ledgers, documents, and other compilations of data Retirement Healthcare Program Administrative Services and Recordkeeping Agreement (whether written, electronic, computer related or otherwise) collected and maintained by TIAA for Plan Sponsor and/or the Plans under any provision or requirement of this Agreement (the "Records") are the property of Plan Sponsor. During the term of this Agreement, TIAA will at all times cooperate with and grant Plan Sponsor or its designee reasonable access to the Records during TIAA's normal business hours. If any litigation, claim, negotiation, audit, or other action involving the Records is commenced prior to the expiration of the applicable retention period, TIAA and Plan Sponsor shall retain all Records until completion of the action and resolution of all issues resulting therefrom, or until the end of the applicable retention period, whichever is later. Upon the expiration or termination of this Agreement, TIAA shall provide Records to Plan Sponsor upon such schedule and in such form or format as Plan Sponsor and TIAA agree is reasonable.
10. Indemnification
10.1. TIAA agrees to indemnify and hold harmless the Plan Sponsor and its respective Members, employees, officers, directors, agents, affiliates and subcontractors or other related persons or organizations (the "Plan Sponsor Parties") from all loss, damage, costs, charges, liability, or expense, including without limitation, reasonable attorneys' fees, and accountants' fees and disbursements (hereinafter referred to as "Losses") that may be incurred by, imposed upon, or asserted against the Plan Sponsor Parties, on account of any claim or action at law or in equity against the Plan Sponsor Parties to the proportionate extent that it results from the negligence, errors, omissions, or dishonest, fraudulent, or criminal acts of TIAA, or its employees, officers, directors, agents, affiliates, subcontractors, or other related persons or organizations (the "TIAA Parties") acting alone or in collusion with others. Notwithstanding the foregoing, TIAA shall not hold harmless or indemnify the Plan Sponsor Parties against Losses stemming from the Plan Sponsor Parties' bad faith, negligence, errors (including, without limitation, the provision of inaccurate, untimely or incomplete information), willful misconduct, the failure to follow applicable laws or the terms of the Plan, or breach of this Agreement. TIAA, its agent and its subcontractors shall maintain Bond and insurance coverage appropriate for the services provided under this Agreement.
10.2. The Plan Sponsor agrees to indemnify and hold harmless the TIAA Parties against Losses that may be incurred by, imposed upon, or asserted against the TIA Parties, on account of any claim or action at law or in equity against the TIAA Parties to the proportionate extent that it results from the Plan Sponsor Parties' negligence, errors (including, without limitation, the provision of inaccurate, untimely or incomplete information), omissions, wrongdoing or the breach of this Agreement.
Notwithstanding the foregoing, the Plan Sponsor shall not hold harmless or indemnify the TIAA Parties against Losses stemming from the TIAA Parties' bad faith, negligence, or willful misconduct.
10.3. If any third party threatens to commence or commences any action for which one Party (the "Indemnifying Party") may be required to indemnify the other Party hereunder (the "Indemnified Party"), the Indemnified Party shall promptly give notice thereof to the Indemnifying Party. The Indemnifying Party shall be entitled, at its own expense and without limiting its obligations, to indemnify the Indemnified Party, to assume control of the defense of such action with counsel selected by the Indemnifying Party, which counsel shall be reasonably satisfactory to the Indemnified Party. If the Indemnifying Party assumes the control of the defense, the Indemnified Retirement Healthcare Program Administrative Services and Recordkeeping Agreement Party may participate in the defense of such claim at its own expense. Without the prior written consent of the Indemnified Party, which consent shall not be withheld unreasonably, the Indemnifying Party may not settle or compromise the liability of the Indemnified Party in such action, or consent to or permit the entry of any judgment in respect thereof, unless in connection with such settlement, compromise or consent the Indemnified Party receives from such claimant an unconditional release from all liability in respect of such claim.
10.4. The indemnities granted by the Parties in this Section shall survive the termination of this Agreement.
11. Confidentiality; HIPAA; Plan Sponsor Name
11.1. TIAA and the Plan Sponsor recognize and acknowledge that, by entering into this Agreement, each Party may have access to certain information of the other Party that is confidential and constitutes valuable, special and unique property of that other Party. As used herein, "Confidential Information" means (i) this Agreement and the terms hereof and thereof, and (i) all information marked confidential, proprietary or similar legend by either Party. Confidential Information does not include information that (i) was publicly known through no unauthorized act of a Party, or otherwise known to a Party without an obligation of confidentiality, at the time of disclosure, (i) subsequently becomes publicly known through no unauthorized act or omission of either Party, (iii) was rightfully received from a third party without an obligation of confidentiality; or (iv) independently developed by the Party without the use of Confidential Information. The Parties agree that, except as provided in this Agreement, they will not at any time, either during or subsequent to the term of this Agreement, disclose Confidential Information to others, or use, copy or permit the transmittal of Confidential Information to others, or use, copy or permit Confidential Information to be copied, without the other Party's express prior written consent, which shall not be unreasonably denied or delayed. Except for disclosure by their Parties to their employees, officers, trustees, legal counsel, accountant or financial advisors (none of whom will be associated or affiliated in any way with the other Party or any of its affiliates), the Parties will not disclose the terms of this Agreement to any other person, unless disclosure is required by law or otherwise authorized by this Agreement or with the consent of the non-disclosing Party, which shall not be unreasonably denied or delayed; provided, however, that Plan Sponsor may disclose Confidential Information relating to the operational terms of this Agreement and/or TIAA's performance hereunder, or that of any other agent or subcontractor of TIAA (e.g., applicable service levels and measurements of TIAA or its agent's or subcontractor's performance with respect to such service levels) in connection with the solicitation of proposals for or the procurement of the same or similar services from prospective third party contractors so long as Plan Sponsor does not divulge TIA's pricing for the services or actual work product in connection with any such solicitation or procurement. Unauthorized disclosure of the terms of this Agreement will be a material breach of this Agreement and will provide the non-breaching Party the option of pursuing remedies for breach or immediate termination of this Agreement.
Retirement Healthcare Program Administrative Services and Recordkeeping Agreement
11.2. Member health information, health claim information or any other personal information handled by CYC, TIAA's subcontractor for claims processing, shall be maintained and safeguarded in accordance with the provisions of the Health Insurance Portability and Accountability Act ("HIPAA") and other applicable data privacy and security laws. Plan Sponsor and TIAA acknowledge and agree that the Plan is a "Covered Entity" under HIPAA. TIAA will be performing services that require access to individually identifiable financial information. When TIAA uses this information to process financial transactions, TIAA is not performing a service that involves the use or disclosure of protected health information as defined under HIPAA ("PHI). Plan Sponsor further acknowledges and agrees that TIAA is neither a "Covered Entity" nor a "Business Associate" under HIPAA. TIAA shall not have access to individually identifiable health claim information, medical records, or hospital records. However, to the extent TIAA inadvertently receives PHI, TIAA agrees to use safeguards that are consistent with the HIPAA privacy and security regulations with respect to such information.
11.3. To the extent TIAA or CYC creates or receives Personal Information from the Plan Sponsor or the Plan, or on behalf of the Plan Sponsor or the Plan, it shall collect, maintain, process, handle, use, disclose and destroy all Personal Information in compliance with all applicable data privacy and protection laws and maintain a comprehensive data privacy and security program, which shall include appropriate administrative, physical, technical and organizational measures to safeguard such data against the unauthorized access, possession, use, knowledge, process, disclosure, destruction, loss, alteration or theft, and which shall be no less rigorous than generally accepted privacy and security standards. To the extent any unauthorized acquisition or access to Personal Information is attributable to a breach of the obligations under this Agreement by TIAA or CYC, and notwithstanding any other provisions of this Agreement or any other agreement between the parties, both shall be responsible for the costs incurred by the Plan or Plan Sponsor to the extent it is necessary to comply with their legal obligations relating to such breach under the applicable breach notification statute or regulation, which shall include the following costs reasonably incurred by the Plan or the Plan Sponsor in responding to such breach: (1) the reasonable cost of preparing and distributing notifications to affected individuals, (2) the reasonable cost of providing notice to government agencies, credit bureaus, and/or other required entities, (3) to the extent required by the applicable statute, the reasonable cost of providing affected individuals with credit monitoring services for a specific period not to exceed twelve (12) months, or longer if required by law, (4) the reasonable cost of call center support for such affected individuals for a specific period not to exceed thirty (30) days from the date the breach notification is sent to such affected individuals, and (5) the reasonable cost of any other measures required under applicable law.
11.4. Subject to the express written consent of Plan Sponsor, TIAA, its agents and its subcontractors shall have the non-exclusive and non-transferable right to use the name of Plan Sponsor solely in connection with rendering services pursuant to this Agreement. Any material, including electronic, print, or other media, in which the Plan Sponsor's name may be used, shall be submitted to the Plan Sponsor in hard copy for review and approval prior to use by TIAA, its agents or its subcontractors. Upon termination of the Agreement, TIAA agrees to immediately discontinue use of the Plan Sponsor name.
Retirement Healthcare Program Administrative Services and Recordkeeping Agreement
12. Waiver
12.1. The failure of TIAA at any time to require performance of any provisions hereof will in no manner affect its right at a later time to enforce such provision and will not act as a waiver thereof.
13. Notice
13.1. Except as provided in Section 6.1 or Schedule B of this Agreement, any notices that may be required under this Agreement shall be given in writing and delivered personally or mailed by certified mail or courier service to the other Party at the following address or such other address as each Party may give notice to the other.
If to TIAA, to:
Client Agreements Team
TIAA
PO Box 1299
Charlotte, NC 28262
Attention: Product Program Director
With copies to:
Senior Director, TIAA Health
TIAA
630 Peter Jefferson Pkwy
Suite 260
Charlottesville, VA 22911
Attention: Richard Ward
Office of the General Counsel
TIAA
730 3d Avenue
12" Floor
New York, NY 10017
Attention: Carla Miller-James
If to the Plan Sponsor, to:
City of San Marino
2200 Huntington Drive
San Marino, CA 91108-2691
Retirement Healthcare Program Administrative Services and Recordkeeping Agreement
14. Term of the Agreement; Termination
14.1. The term of this Agreement shall be (5) years from the effective date as set forth above (Initial Term"). Following the Initial Term, this Agreement shall automatically renew for successive one- year terms unless either Party provides the other Party with written notice in accordance with this Section 14.1. The Plan Sponsor may remove TIAA as an administrative service provider and recordkeeper upon one hundred twenty (120) days prior written notice to TIAA. TIAA may resign as recordkeeper upon one hundred twenty (120) days prior written notice to Plan Sponsor. Upon termination of this Agreement, the parties agree that TIA shall have no further duty or responsibility, except as agreed upon by both parties in writing to transfer all non-proprietary records and data to Plan Sponsor or to a successor service provider. Unless otherwise agreed in writing, in no event shall such transition be more than one hundred eighty (180) days from the effective date of termination of this Agreement. Any unforeseeable costs or expenses incurred by TIAA in effecting this transfer shall be paid by Plan Sponsor directly to TIAA, unless waived in writing by TIAA.
15. Applicable Law
15.1. This Agreement shall be construed, and the provisions hereof interpreted under, in accordance with the laws of the State of California.
16. Complete Agreement; Modifications
16.1. This Agreement embodies the entire agreement between the Parties and supersedes all prior agreements relating to the subject matter of this Agreement. All amendments to this Agreement must be in writing and signed by both Parties, except with respect to the addition to the series of Lifecycle funds (as set forth in Schedule C).
17. Counterparts
17.1. This Agreement may be executed simultaneously in two or more counterparts, each of which taken together shall constitute one and the same Agreement.
18. Severability
18.1. If any provision of this Agreement shall be held or made invalid by a court decision, statute, rule or otherwise, the remainder of the Agreement shall not be affected thereby.
19. Successors and Assigns
Retirement Healthcare Program Administrative Services and Recordkeeping Agreement
19.1. This Agreement will be binding upon, inure to the benefit of, and be enforceable by the respective successors of the Parties. This Agreement will not be assignable by any Party hereto without the written consent of the other Party.
20. Non-Exclusivity
20.1. Each of the Parties acknowledges and agrees that this Agreement and the arrangements described herein are intended to be non-exclusive and that each of the Parties is free to enter into similar agreements and arrangements with other entities.
Retirement Healthcare Program Administrative Services and Recordkeeping Agreement IN WITNESS WHEREOF, the Parties hereto have executed and delivered this Agreement effective as of May 1,
TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA
Stophere Marantone 1s30r
Print Name: Stephanie Morano
Title: Manager, Client Agreement Team
The City of San Marino
Date: 4-17-17
By:
Cindy Collins
Print Name:
res Interim City Manager
Retirement Healthcare Program Administrative Services and Recordkeeping Agreement
SCHEDULE A
Plan Administration Services
1. TIAA shall facilitate the enrollment of employees eligible to participate in the Plan Sponsor's retiree health plan. In addition, TIAA, in its capacity as recordkeeper, shall provide ongoing communications and retiree health plan information to such employees before and after enrollment in the Plan. TIAA shall not deliver investment and savings advice to Members with respect to the retiree health plan. Furthermore, TIAA Will not provide Members with investment product selection guidance (suitability reviews) or advice with respect to whether a Member may, or should, participate in the Plan.
2. TIAA shall maintain records of each Member's notional account balances. The records of each such account balance shall reflect amounts attributable to contributions made to the underlying Plan Trust and reflect any attributable gains or losses associated with the mutual funds or other investment options held by the Plan Trust. TIAA shall separately account for employer contributions and employee contributions (if any). The records maintained pursuant to this paragraph 2 shall be based solely on information provided to TIAA by the Plan.
3. (a) TIAA shall arrange for contributions to, and investments in, a Member's notional account to be allocated at the direction of the Member to the investment options selected by the Plan Sponsor. The funding options chosen for the Plan by the Plan Sponsor and/or fiduciary(ies) of the Plan are set forth in Schedule C. All contributions shall be allocated among such funding options in accordance with the most recent valid instructions. TIAA shall arrange for transfers among Plan funding options to be made pursuant to the Member's instructions in accordance with the terms of the Plan but subject to any restrictions in the applicable funding option. Transfers between funds must be 1) the lesser of $1,000 or the total remaining balance in the funding option or 2) a series of recurring systematic transfers established by the Member ($100 minimum). TIAA shall provide the means by which the Member can allocate contributions to, or transfer amounts among, the Plan funding options. When the Plan Administrator is notified of the death of a Member, the Member's spouse or other dependents may be entitled to benefits under the Plan. A surviving spouse may be entitled to provide investment direction related to the mutual funds or other investment products held by the Plan Trust in the name of the Member. In the absence of a surviving spouse, TIAA will accept such instructions from the Plan Administrator. TIAA will accept instructions from the Plan Administrator to transfer or otherwise allocate the remaining account balance to the TIAA-CREF Money Market Mutual Fund or other investment product held by the Plan Trust for purposes of paying health care claims for such dependents. In the event there is no surviving spouse, and the Plan Administrator fails to provide disposition instructions, the entire account balance shall be forfeited.
(b) TIAA reserves the right, in its sole discretion, to amend or delete funding options that are offered on TIAA's recordkeeping platform and made available to plan sponsors. If such amendment or deletion would affect a funding option set forth in Schedule C, TIAA shall provide the Plan Sponsor with notice regarding such amendment or deletion at least ninety (90) days prior to such action or, if there are exigent circumstances beyond the control of TIAA (including, but not limited to, a change initiated by a fund company), as soon as administratively practicable following notice to TIAA by the fund company. The Retirement Healthcare Program Administrative Services and Recordkeeping Agreement Plan Sponsor and/or fiduciary(ies) of the Plan may, in their sole discretion, select another funding option from TIA's recordkeeping platform to replace the deleted or amended funding option. To the extent permitted by such funding option, amounts in a deleted or amended funding option will be transferred to the funding option directed by the Plan Sponsor and/or the fiduciary(ies) of the Plan or, at the election of the Plan Sponsor and/or fiduciary(ies) of the Plan, such amounts shall remain in the amended funding option. TIAA shall work with the Plan Sponsor to amend Schedule C of this Agreement and arrange for the transition to the new or amended funding option directed by the Plan Sponsor or the fiduciary(ies) of the Plan. In the event that the Plan Sponsor and/or the fiduciary(ies) of the Plan fail to provide TIAA with instructions, and such Plan Sponsor and/or fiduciary(ies) of the Plan have not selected another funding option from TIAA's recordkeeping platform, amounts in a deleted or amended funding option will be transferred to a money market fund until TIAA receives such instructions.
4. TIAA shall send periodic reports and communications to the Plan Administrators, Trustees of the Plan Trusts) and Members, including, but not limited to, information regarding returns and investment performance under the funding options selected.
5. TIAA shall send any communication that it is required to provide by mail to a Member to the address provided to TIAA by the Plan or by the Member or by electronic delivery to the extent permitted under applicable laws.
6. TIAA shall arrange for health claim payments and other distributions of Plan and Trust Assets to be administered in accordance with the terms of the Plan and instructions from the Plan Administrator.
7. TIAA shall, as authorized under a Plan by a Plan Administrator and subject to applicable law, arrange for the liquidation of amounts needed to pay claims under the Plan.
8. The Plan Sponsor has advised TIAA that the Plan is a public institution within the meaning of Section 3(33) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") and accordingly is exempt from ERISA.
9. On each day the New York Stock Exchange (the "Exchange") is open for business (each a "Business Day"), TIAA may receive instructions from a Plan, Trustee of the Plan Trust, and/or Plan Member for the purchase or redemption of shares of the mutual funds offered under the terms of the Plan ("Instructions").
Instructions which are received in "good order" (defined below) prior to the close of regular trading of the Exchange (generally 4:00 pm Eastern Time) (the "Close of Trading") on any given Business Day, will be executed by TIAA-CREF Individual & Institutional Services, LLC ("TC Services"), an affiliate of TIAA, at the net asset value determined as of the Close of Trading on such Business Day. Instructions which are received in "good order" (defined below) on such day but after the Close of Trading, will be executed by TC Services at the net asset value determined as of the Close of Trading on the next Business Day following the date of receipt of the Instruction. Instructions shall be considered received in "good order" when all necessary information and monies in connection with such Instructions balance and conform to all other operating procedures, including any restrictions or limits set forth in the applicable fund prospectus or as otherwise set forth by TIAA. The date the Instructions are executed shall be referred to as the "Participation Date." Notwithstanding the foregoing, in the event that the Securities and Exchange Commission promulgates or amends rules under which the foregoing procedures would be impermissible, this paragraph 9 shall be amended to provide a procedure that conforms to such rules.
Retirement Healthcare Program Administrative Services and Recordkeeping Agreement
10. TIAA shall deliver, or cause to be delivered to the Plan Administrator or at the direction of the Plan Administrator, directly to the Trustees of the Plan Trust, notices, prospectuses, financial statements, proxies and proxy soliciting materials received by TIAA relating to the mutual fund shares held in a Member's Plan accounts). Proxies shall be voted by TIAA on behalf of the Trustees of the Plan Trust, or in accordance with the Trustees' instructions. If no instructions for voting proxies applicable to mutual fund shares are received, TIAA shall exercise the voting rights for such shares in accordance with the TIAA voting and conflicts of interest policies.
11. TIAA shall apply for the EIN for the Plan Trust, and shall prepare and file the Form 1024 Application for tax exempt status, and file the annual Form 990 filing to the extent such filings are required by law. The Plan Administrator agrees to cooperate with TIAA in reviewing the filings on a timely basis, providing all necessary information required for filing and verifying accuracy of data provided. The Plan Sponsor shall be responsible for all other applicable tax withholding and reporting obligations under local, state or federal law.
12. With respect to the Plan, the Plan Sponsor shall be responsible for (a) any reporting required, and fees payable, under the Patient Protection and Affordable Care Act, (b) any health insurance exchange fees payable under state or federal law and (c) any other reporting or fees related to healthcare reform legislation. Neither TIAA nor TIAA-CREF Trust Company, FSB shall be responsible for such reporting or Retirement Healthcare Program Administrative Services and Recordkeeping Agreement
SCHEDULE B
Claim Administration and Related Recordkeeping Services ConnectYourCare, LLC ('CY"), a Maryland limited liability company with a place of business at 307 International Circle, Suite 200, Hunt Valley, Maryland 21030, is subcontracted by TIAA to process claims and to provide related recordkeeping services as follows:
1. Services: CYC shall provide to Plan Sponsor claims and recordkeeping services described in this Schedule B and the Business Associates Agreement between Plan Sponsor and CYC, which Plan Sponsor and CYC shall execute separately.
a. Nature of Services:
i. Administrative Services Only. Plan Sponsor understands and agrees that CY's sole function under this Agreement is to act as recordkeeper and provide other administrative services on behalf of TIAA. CYC's services under this Agreement are solely ministerial and non- discretionary in nature. CYC does not render investment advice, is not the "plan administrator," trustee or a fiduciary, as these terms or other analogous terms may be defined under applicable state, local, or federal law, and does not provide legal, tax or accounting advice or forms preparation services with respect to the creation, adoption or operation of a retiree health plan or a Plan Trust.
ii. Discontinuance of Services Inconsistent with Role. If, based on changes in the applicable regulatory structure or the interpretation of the regulatory structure, there is a reasonable likelihood that any service being, or to be, provided by CYC could constitute a discretionary function and thereby subject CYC to classification as a "fiduciary" under applicable state, local, or federal law with respect to an employer-sponsored health plan and such service could not be restructured in a manner that would not subject CYC to classification as a "fiduciary" under applicable state, local, or federal law, then CYC, upon reasonable notice to Plan Sponsor and TIAA, may decline to thereafter provide that service. The failure to provide any such service shall not constitute a breach of TIAA's obligations under this Agreement. ili. Plan Status and Compliance Responsibility. Plan Sponsor has advised CYC that the retiree health plan is a public institution within the meaning of ERISA § 3(33) and accordingly is not subject to the requirements of Title I of ERISA. Any services provided by CYC with respect to the retiree health plan shall comply with requirements of applicable law. CYC shall comply only with applicable laws that apply to third party claim administrators, but the Plan Administrator for the retiree health plan shall hear all appeals. Plan Sponsor is solely responsible for ensuring compliance with all applicable provisions of the Internal Revenue Code and any applicable state and local laws governing the retiree health plan, including, but not limited to, preparation and to charge an additional fee for extended services requested by Plan Sponsor, as it deems appropriate. CYC is paid certain service fees by TIAA, and Plan Sponsor acknowledges and Retirement Healthcare Program Administrative Services and Recordkeeping Agreement agrees to the same. If Plan Sponsor needs additional information regarding the compensation arrangement in order to prepare forms or for other legitimate legal reasons, Plan Sponsor will request such information from CYC and TIAA in writing and CYC and TIAA will promptly provide such compensation information so long as the request is reasonable. b. Reliance Upon Data: CYC shall manage records relating to its administration of health claims. All services provided by CYC shall be based on information supplied by Plan Sponsor or any other designee or agent of Plan Sponsor (as designated by Plan Sponsor). Plan Sponsor acknowledges that the timely provision of accurate, consistent and complete data in the format specified by TIAA or by CYC is essential to its delivery of services, and Plan Sponsor is responsible for ensuring such timely and accurate data is delivered to CYC in TIAA's or CYC's approved format.
C. Data in Electronic Format: Plan Sponsor agrees that administrative, contribution and recordkeeping data shall be in an electronic format acceptable to TIAA and CYC and will be updated as either TIAA or CYC requires for proper processing. If the data is not submitted in an electronic format or if the format of the data requires additional translation, formatting or cleansing, CYC reserves the right to approve or refuse such submission and to charge additional data- handling fees as required:
Reliance Upon Persons Designated by Plan Sponsor: TIAA shall provide a form to Plan Sponsor on which Plan Sponsor shall provide names and other information for persons authorized to take actions for or provide information on behalf of the retiree health plan or the Plan Trust. TIAA and CYC may reasonably rely upon this information and may act upon instructions received from and/or on information provided by these named persons. TIAA and CYC have the right to assume that those persons continue to be authorized unless notified otherwise. e. CYC Customer Service:
CYC Customer Service Representatives. CYC Customer Service Representatives will be available at a toll-free telephone number 24 hours a day, 7 days a week, (excluding emergency closings) to assist plan Members. CYC reserves the right to change the customer service representatives' hours of availability upon reasonable advance notice to TIAA and the Plan Sponsor.
ii. Internet Services. CYC will provide access to the ConnectYourCare Web site as described in paragraph 1(f) of this Agreement to allow Members and Plan Sponsor to access certain account information and for Members to file claims.
ili. Member Statement of Account. Members will have access to their accounts through a website provided by TIAA or by CYC.
f. Basic Benefits Portal System Services:
i. Member Portal. CYC will provide Members with access to a CYC portal system.
This system will allow online claim filing. The Member will also have online access to the following:
Retirement Healthcare Program Administrative Services and Recordkeeping Agreement • Real-time history of claim submission and payment process; Account management with contribution and transaction history and account balance; and
• Education tools.
ConnectYourCare Healthcare Payment Card: CYC will provide Members with a healthcare payment card integrated with the Member's account. The payment card will allow the Member's entitled liquid account balance to automatically transfer to the payment card. The payment card can be used at any eligible merchant provided the merchant has properly configured the VISA® merchant code to identify itself correctly. Cardholders are subject to the terms and conditions described in the VISA® cardholder agreement, which will be provided with the payment card. h. Claims Processing:
i. Review of Claims. CYC will review claims in accordance with the terms of the Plan documents for the retiree health plan, standards set forth under applicable law, including IRS guidelines concerning eligible expenses, and guidance provided by Plan Sponsor.
Plan Sponsor retains authority to decide appeals.
ii. Payment of Claims. CYC will process claims within five (5) business days of the date CYC receives a claim request from a Member. Checks, if applicable, will be issued within two (2) scheduled check payment cycles, upon receipt of claims in good order. Claims are in "good order" when the reimbursement request contains all pertinent information, including information required to substantiate the claim. CYC will not reimburse a Member's claim unless the Member has sufficient entitled funds in the liquid account under the retiree health plan at the time the claim is submitted. If the Member does not have sufficient entitled funds at the time the claim is submitted, the reimbursement request will be held by CYC and processed in accordance with the time frame described in this paragraph starting with the date that such entitled funds are available. ili. Unsubstantiated Claims/Ineligible Expenses. If a Member is not able to substantiate a claim, or if payment for an expense is advanced through the debit card and subsequently deemed ineligible for reimbursement, CYC will attempt to collect these amounts from the Member. Where CYC is unsuccessful, Plan Sponsor will be responsible for collecting such amounts. CYC will provide a report identifying the employees and amounts to enable Plan Sponsor to seek reimbursement from the Plan Member.
Reports. CYC will provide Plan Sponsor with the ability to produce CY's standard Plan- level reports utilizing the information maintained on its recordkeeping system. Standard reports will summarize all transactions that occurred for each Member and report new enrollees within the specified time period.
2. Plan Document. Maintenance of a document consistent with the Plan's operations and all legal requirements is the responsibility solely of Plan Sponsor. TIAA will provide a sample plan document to Retirement Healthcare Program Administrative Services and Recordkeeping Agreement Plan Sponsor if requested. TIAA will use reasonable best efforts to provide updates to Plan Sponsor in a timely manner after changes in the law and regulation. Plan Sponsor will inform TIAA of changes it desires to the Plan prior to the time TIAA is expected to implement those changes.
3. Use of Agents or Subcontractors. CYC may perform any of the services described in this Agreement through agents and subcontractors selected by CYC. CYC shall reasonably supervise any such agent or subcontractor, and the retention of agents or subcontractors shall not relieve CYC or TIAA of its duties.
4. ConnectYourCare not Legal Counsel. Plan Sponsor understands and agrees that it shall review with its legal and/or tax counsel all documents provided to it by CYC or TIAA and that Plan Sponsor should consult such counsel on any questions concerning Plan Sponsor's responsibilities under this Agreement, the retiree health plan, plan documents for such plan, and the legal sufficiency of any documents so provided. Plan Sponsor understands that neither CYC nor any of CYC's other affiliates are permitted to provide Plan Sponsor with legal or tax advice or otherwise engage in the practice of law. Plan Sponsor acknowledges that it will not rely on any information provided by CYC as if it were legal or tax advice.
Notice of Errors. All information supplied to Plan Sponsor or Member will be deemed correct if notice of discrepancies is not given to TIAA or CYC by the Member or Plan Sponsor within ninety (90) days of issuance of the report statement, confirmation, or other information. After that period, CYC will correct transactional errors, but will not be liable for consequential damages due to any errors not reported within that period.
6. Successor Recordkeeper:
a. Run-out Period. If requested, CYC will, for the ninety (90) day period immediately following the date of termination of its services by TIAA, Plan Sponsor or CYC ("Run-Out Period"), continue to administer claims for expenses incurred before the termination date or other date agreed upon by all parties and the successor to CYC, provided CYC is timely paid for its services both before and during the Run-Out Period. Upon expiration of the Run-Out Period, all obligations of CYC to administer claims or perform any other services under this Agreement shall cease. b. Successor Recordkeeper. Upon termination of CY's services, the parties agree that CYC shall have no further duty or responsibility, except as provided by the Run-Out Period described above in paragraph 6(a). However, CYC will use reasonable efforts to transfer all relevant non-proprietary information concerning the Plan that CYC deems necessary for future operations, in CYC's standard format, to Plan Sponsor or to a successor service provider. Any unforeseeable costs or expenses incurred by CYC in effecting this transfer shall be paid by Plan Sponsor directly to CYC, unless waived in writing by CYC. Plan Sponsor agrees that CYC may charge Plan Sponsor reasonable fees for the provision of requested records or reports that CYC previously provided.
Retirement Healthcare Program Administrative Services and Recordkeeping Agreement
SCHEDULE C
Fund Lineup
Investment Name Share Class Ticker Symbol
TIAA-CREF MONEY MARKET FUND Retirement TIEXX
TIAA-CREF LFCYLE RTMT INC Retirement TLIRX
TIAA-CREF LIFECYCLE 2010 Retirement TCLEX
TIAA-CREF LIFECYCLE 2015 Retirement TCLIX
TIAA-CREF LIFECYCLE 2020 Retirement TCLTX
TIAA-CREF LIFECYCLE 2025 Retirement TCLFX
TIAA-CREF LIFECYCLE 2030 Retirement TCLNX
TIAA-CREF LIFECYCLE 2035 Retirement TCLRX
TIAA-CREF LIFECYCLE 2040 Retirement TCLOX
TIAA-CREF LIFECYCLE 2045 Retirement TTFRX
TIAA-CREF LIFECYCLE 2050 Retirement TLFRX
TIAA-CREF LIFECYCLE 2055 Retirement TTRLX
TIAA-CREF LIFECYCLE 2060 Retirement TLXRX
*The Trustee shall add each mutual fund that TIAA adds to this series of lifecycle funds as it is launched. Such funds will be available to Members as of the open of trading on the Exchange on their respective inception dates, or as soon thereafter as administratively possible.
Retirement Healthcare Program Administrative Services and Recordkeeping Agreement
SCHEDULE D
Plan Implementation Fee
TIAA implementation services include, but may not be limited to, the following:
a. Provide sample plan documents including Adoption Agreement, Administrative Guide and Forms, Summary Plan Description, and employee communications for the retiree health plan; b. Apply for the EIN for the Plan Trust, prepare and file the Form 1024 Application for tax exempt status and the annual Form 990 filing to the extent such applications are required by law; and Set up Plan on TIAA's recordkeeping platform, ConnectYourCare recordkeeping platform and the TIAA- CREF Trust Company systems.
One Time Implementation Fee $5,500.00 (Waived)
Per Account Fee
TIAA per account fees cover the services described in Schedule A of this Agreement. During the claims active period, additional services are provided as outlined in Schedule B, Section 1.
Per account fees listed below will be paid as follows:
TIAA will deduct the per account fee from each account on a monthly basis.
Per Account Annual Fee for Members not claims active ........... .......$24.00 Per Account Annual Fee for Members who are claims active.. .... $39.00 Trust Administration Fees
TIAA has been authorized by TIAA-CREF Trust Company, FSB to collect fees from Plan Sponsor for Plan Trust services provided to the Plan.
Annual Fee for Trust Services .....$2,500.00
Affiliated Mutual Funds
When assets are invested in affiliated mutual funds, affiliates of the Trust Company receive fees from these products based on the amount of assets the client invested in them. These fees are in addition to the fees due based on the implementation, Plan account and Plan Trust fees payable under this Agreement. When assets, including ERISA assets, are invested in affiliated mutual funds, the Trust Company will comply with all applicable fiduciary and regulatory requirements including, if necessary, rebating to the account a portion of the management fee that an affiliated investment vehicle pays to TIAA affiliates. Please note that TIAA affiliates receive payments for providing services to affiliated mutual funds. As detailed in the prospectuses and statements of additional information, as the case may be, for these mutual funds, these funds pay their own fees and expenses, including fees for investment management and/or administrative services to the Trust Company's affiliates, which may pay a portion of these fees to other affiliates.
Retirement Healthcare Program Administrative Services and Recordkeeping Agreement All operating expenses of affiliated mutual funds are disclosed in the funds' prospectus and statements of additional information, as the case may be. Annual operating expenses are the expenses that are paid each year as a percentage of the value of the investment in the investment vehicle, including management fees and/or administrative services or other expenses. The current prospectus for each affiliated mutual fund, including supplements to prospectuses, statements of additional information and other product disclosures, are available and can be viewed on, and downloaded and printed from, the website at http://www.tiaa-cref.org/prospectuses/index.html. They are also available in paper form, free of charge, upon request.
Unaffiliated Mutual Funds
When assets are invested in third-party mutual funds or other non-affiliated investment vehicles, each mutual fund or investment vehicle also pays its own investment advisory fees and other fees and expenses. These fees are in addition to the fees paid directly under this Agreement. Third-party mutual funds may, directly or through third parties, pay the Trust Company or its affiliates for services rendered on behalf of the investments in the funds, as disclosed in the third-party mutual fund's prospectus or offering materials.
Relationship with TIAA
The Trust Company is a wholly owned indirect subsidiary of TIAA. TIAA and the Trust Company have entered into a service arrangement whereby TIAA, directly or through its subsidiaries, provides a variety of services to the Trust Company that are material to our investment management, trustee and other fiduciary related services. These services include administrative, auditing, data processing, legal and marketing services.
Payments are made for these services.