INVESTMENT ADVISOR AGREEMENT
MULTIPLE EMPLOYER OPEB/ PENSION 115 TRUST
This agreement (" Agreement") is entered into between Shuster Advisory Group, LLC (" SHUSTER"), a California limited liability company, and City of San Pablo (" EMPLOYER") as further identified on Appendix A., as the responsibleplan fiduciary for the Plan(s) asfurther identified in Appendix A, desiresto engageSHUSTER to provide the servicesdescribedin this Agreement according to the terms of this Agreement.
1. Fiduciary Authority. The account for which SHUSTER is providing investment advisory service is part of a multiple employer trust intended to qualify asa tax-exempt trust of a stateor political subdivision thereof for an essentialgovernmental function within the meaning of Section 115 of the Internal Revenue Code and any regulations issued thereunder and the EMPLOYER has fiduciary authority with respect to the account for the employer.
2. Term. The term of this Agreement will commence March 1, 2025.
3. Services. SHUSTER agreesto perform the Fiduciary Servicesdescribedin Appendix B.
4. Fees.
A) The compensation, direct and indirect, of SHUSTER for the performance of the Servicesis described in Appendix C.
5. Fiduciary Status: Limitations on Functions. EMPLOYER acknowledgesthat:
A) In performing the Fiduciary Services, SHUSTER is acting as an investment fiduciary of the Plan and as a registered investment advisor under the Investment Advisers Act of 1940.
B) In performing Fiduciary Services, SHUSTER does not act as, nor has SHUSTER agreed to assume the duties of, a trustee or the Plan Administrator, and SHUSTER hasno discretion or responsibility to interpret the Plan documents, to determine eligibility or participation under the Plan, or to take anyother action with respectto the management, administration or any other aspectof the Plan.
C) SHUSTER does not provide legal or tax advice.
D) Investments are subject to various market, political, currency, economic, and businessrisks, and may not alwaysbe profitable. As a result, SHUSTER doesnot and cannot guaranteefinancial results.
E) SHUSTER may, by reason of performing services for other employers, from time to time acquire confidential information. EMPLOYER acknowledges and agrees that SHUSTER is unable to divulge to the EMPLOYER or any other party, or to act upon, any such confidential information with respect to its performance of this Agreement.
F) SHUSTER is entitled to rely upon all information provided to SHUSTER (whether financial or otherwise) from EMPLOYER, EMPLOYER' s representativesor third -party serviceproviders to EMPLOYER, or the Plan, without independent verification. EMPLOYER agreesto promptly notify SHUSTER in writing of any material changein the financial and other information provided to SHUSTER and to promptly provide any such additional information as may be reasonably requested by SHUSTER.
G) EMPLOYER understandsthat SHUSTER: (i) may perform other servicesfor other clients, (ii) may charge a different fee for other clients, and (iii) may give adviceand take action that is different for eachclient even when retirement plans are similar.
H) SHUSTER has no responsibility to provide any servicesrelated to assetsnot included in the SHUSTER investment portfolio or purchased directly by EMPLOYER. Such assetsshall be referred to collectively as Excluded Assets." The Excluded Assetsshallbe disregardedin determining the Feespayableto SHUSTER pursuant to this Agreement, and the Fees shall be calculated only on the remaining assets (the " Included Assets").
6. Representations of EMPLOYER. EMPLOYER represents and warrants as follows:
A) It is the responsible plan fiduciary for the control and/ or managementof the assetsof the Plan, and for the selectionand monitoring of serviceproviders for the Plan. SHUSTER is entitled to rely upon this statement until notified in writing to the contrary.
B) The person signing the Agreement on behalf of EMPLOYER hasall necessaryauthority to do so.
C) The execution of this Agreement and the performance thereof is within the scope of the investment authority authorized by the governing instrument and/ or applicable laws. The signatory on behalf of EMPLOYER representsthat the execution of theAgreement hasbeenduly authorized by appropriate action and agreesto provide such supporting documentation asmay be reasonablyrequired by SHUSTER.
D) The Plan and related Trust permit payment of fees out of Plan assets. EMPLOYER has determined that the feeschargedby SHUSTER arereasonableand are the obligation of the Plan; however, if EMPLOYER desires, it may pay the feesdirectly, rather than with Plan assets.
7. Representations of SHUSTER. SHUSTER represents and warrants as follows:
A) SHUSTER is registered as an investment adviser (" RIA") under the Investment Advisers Act of 1940.
B) The person signing this agreement on behalf SHUSTER has the power and authority to enter into and perform this Agreement.
C) SHUSTER agreesto take reasonablestepsto protect Private Participant Information and Plan Investment Data in its possession;
D) SHUSTER is not responsible for the assessmentof systemsand procedures of third parties for the protection of plan and participant data;
E) SHUSTER is not responsible for the actions by, or the failure to act by EMPLOYER, by other serviceproviders, or by Plan participants to protect Data; F) SHUSTER shallhaveno liability in the eventof aData breach or aviolation of participant privacy rights (under the California Consumer Privacy Act or otherwise) unlesssaid breach is the direct result of negligence, recklessness, or willful misconduct of an officer, employee, or agent of SHUSTER.
Standard of Care. SHUSTER will perform the Fiduciary Services described in Appendix B to the Plan in accordancewith the standard of careof the prudent man rule set forth in ERISA Section 404(a) (1) (B).
Termination. Either party may terminate this Agreement upon 30 days prior written notice to the other party.
Such termination will not, however, affect the liabilities or obligations of the parties arising from transactions initiated prior to such termination, and such liabilities and obligations (together with the provisions of section 8, 17, and 18) shall survive any expiration or termination of this Agreement. Upon termination, SHUSTER will have no further obligation under this Agreement to act or advise EMPLOYER with respect to services under this Agreement.
10. Receipt of Disclosure and Consent to Electronic Delivery. EMPLOYER acknowledges receipt and undertakes to review and consider the disclosuresmade by SHUSTER ( including in this Agreement, the Form ADV Part 2 and SHUSTER Privacy Policy), in particular the portions related to services, compensation, and potential conflicts of interest, as well as the remainder of the disclosures concerning, among other matters, background information such aseducational and businesshistory, businesspracticessuch asthe typesof advisory servicesprovided, the methods of securitiesanalysisused, and the like.
Further, EMPLOYER consents to electronic delivery (via email or other generallyacceptedmethod) of current and future distributions of SHUSTER' s Form ADV Part 2 and Privacy Policy. Consent to electronic delivery may be canceledat any time by sending a written requestto SHUSTER.
11. Notices. Any and all notices required or permitted under this Agreement shallbein writing and shallbe sufficient in all respectsif (i) deliveredpersonally, (ii) mailedby registeredor certifiedmail, return receiptrequestedand postageprepaid, or (iii) sent via a nationally recognized overnight courier serviceto the EMPLOYER' s address listed on Appendix A and SHUSTER' s address, 155 N. Lake Ave, Ste. 950, Pasadena, CA 91101, or such other addressas any party shall havedesignedby notice in writing to the other party.
12. Assignability. This Agreement is not assignableby either Party hereto without the prior written consent of the other Party.
13. Effect. This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective heirs, successors, survivors, administrators and assigns.
14. Entire Understanding and Modification. This Agreement constitutes and contains the entire understanding betweenthepartiesandsupersedesallprior oralorwritten statementsdealingwith thesubjectmatterherein. This Agreement can be amendedor modified by the written consent of the Parties. 15, Severability. If any one or more of the provisions of this Agreement shall, for any reason, be illegal or invalid, such illegality or invalidity shall not affect any other provision of this Agreement and this Agreement shall be enforced asif such illegal or invalid provision had not been contained herein.
16. Headings. All headingsusedherein arefor easeof referenceonly andin no way shall be construed asinterpreting, decreasingor enlarging the provisions of this Agreement.
17. Applicable Law; Forum. The lawsof the Stateof California shallgovern this Agreement in all respects, including but not limited to the construction and enforcement thereof, unlessotherwise preempted or supersededby federal law.
18. Arbitration Agreement. To the extent permitted by law, all controversiesbetweenEMPLOYER and SHUSTER, which may ariseout of or relateto anyof the servicesprovidedby SHUSTERunder this Agreement, or the construction, performanceor breachof this or anyother AgreementbetweenSHUSTERand EMPLOYER, whetherenteredinto prior to, onor subsequentto thedatehereof, shallbesettledbybindingarbitrationin Contra CostaCounty, California, under the CommercialArbitration Rulesof the AmericanArbitration Association.
Judgmentuponanyawardrenderedby thearbitrator(s) shallbe final, andmaybe enteredinto anycourt having jurisdiction.
19. Amendment Process. The Agreement map be modified, by written agreement of both EMPLOYER and SHUSTER.
20. Waiver of Limitation. Nothing in this Agreement shall in any way constitute awaiver or limitation of any rights which EMPLOYER or Plan or any other party may haveunder federal or statesecuritieslaws.
21. Insurance. Before it may beginperforming servicesunder this Agreement, SHUSTER must procure and provide proof of the insurancecoverageand endorsementsset forth in Appendix D in the form of certificatesand endorsements acceptable to EMPLOYER. The required insurance must cover the activities of SHUSTER and its subconsultantsor subcontractorsrelatingto or arisingfrom theperformanceof theservices, andmustremainin full force and effect at all times during the term of this Agreement. All required insurance must be issued by a companylicensedto do businessin the Stateof California, and eachsuchinsurermust havean A.M. Best's financial strength rating of " A" or better and a financial size rating of " VII" or better. If SHUSTER fails to provide any of the required coveragein full compliance with the requirements of this Agreement, EMPLOYER may, at its sole discretionand in addition to any other remedies, terminateSHUSTER for default. The procurementof therequiredinsurancewill not beconstruedto limit SHUSTER'sliabilityunderthis Agreement or to fulfill SHUSTER' s indemnification obligations under this Agreement. If coverage limits carried by SHUSTER exceedthe minimum limits specified below, the higher limits will be deemed to be required by this Agreement.
This Agreementconstitutesboth an agreementbetweenthe partiesand a disclosurestatement. The Partieshave causedthis Agreement to be executedby their duly authorized officers asof the date set forth above. This Agreement shall not be binding on SHUSTER or the EMPLOYER until each has acceptedit, in writing, as indicated by their signatures below.
EMPLOYER: Ciof S
abl
Shuster Advisory Group, L
Signature: igna e:
Name: Matt Rodriguez Name: Mark Shuster
Title: City Manager Title: Managing Member
Date: T / / s / < Date:
The EMPLOYER is signingthis Agreementboth as the employerthat sponsorsthe Plan and as the fiduciary responsible for selectingthe Plan's investments and engagingits serviceproviders.
APPENDIX A - EMPLOYER/ PLAN SPONSOR - PLAN INFORMATION
EMPLOYER/ Plan Sponsor Tax ID#
City of SanPablo
Plan Name 1 Type of Plan
City of SanPabloOPEB Trust Account
OPEB Plan PensionPlan Other:
Plan
Name 2 Type of PlanCity
of SanPabloPensionStabilizationOPEB
Plan NPension Plan Trust
AccountEl
Other: Plan
Name 3 Type of PlanOPEB
Plan Pension Plan Other:
Plan
Name 4 Type of PlanOPEB
Plan Pension Plan Other:
Plan
Name 5 Type of PlanOPEB
Plan Pension Plan Other:
Mailing
Address City State Zip Code1000
GatewayAvenue San PabloCA 94806 Phone
Email ( for purposesof notice/electronicdelivery) 510-
215- 3016 mattr@sanpabloca. gov Legal
Address (NSame as MailingAddress) City State Zip CodePage 5 o f 10
APPENDIX B - FIDUCIARY SERVICES
SHUSTER will perform the following fiduciary services:
Development of an Investment Policy Statement (IPS). The IPS establishesthe investment policies and objectives for the Plan(s) aswell as the criteria and standardsfor selectingand monitoring the investments.
The EMPLOYER shall havethe ultimate responsibility and authority to establishsuch policies and objectives and to adopt the investment policy statement.
2. Consistent with the Investment Policy Statement, SHUSTER will selectthe initial investment options within the Plan( s).
3. SHUSTER will periodically review the investments within the Plan(s) and shall be responsible for making additions/ deletions thereto.
4. SHUSTER will provide periodic investment advisory reports that document consistencyof fund management and performance to the guidelinesset forth in the IPS, and to makerecommendations to maintain, or remove and replace investment options. Reports to include: Market Overview, In -Depth Portfolio Summary, Plan Asset Allocation Analysis and Fund Performance Comparison to the Index.
5. Meet with EMPLOYER on a periodic basisto discussreports and recommendations.
6. Annually review the IPS with the EMPLOYER to ensureit continues to meet the EMPLOYER' s needs.
LIMITATIONS ON FIDUCIARY SERVICES
SHUSTER shall not be responsible or liable for the recommendations of, or servicesrendered by, anyoneother than SHUSTER. The ability to perform the above servicesis contingent upon the rules, policies, processes, and responsiveness to our requests for information of EMPLOYER, Plan Sponsor, Custodian, and Trustee.
APPENDIX C - FEE SCHEDULE
SHUSTER will not receive any other compensation, direct or indirect, for its servicesunder this agreement. If SHUSTER receivesany other compensationfor Services, SHUSTER will disclosethe amount of such compensation, the servicesprovided for such compensation, the payer of suchcompensation, and a description of SHUSTER' s arrangementwith the payer to the EMPLOYER and will offset that compensation against its stated fees.
2. All fees are billed in arrears.
3. Theinitial feewill be theamount, proratedfor thenumberof daysincludedin theinitial billing periodfrom the effective payment start date.
4. If thisAgreementis terminatedprior to theendof abilling period, SHUSTERshallbeentitledto afee, prorated for the number of daysin the billing period prior to the effective date of termination.
5. All feeswill be dueandpayablewithin 30daysandarepayableto "ShusterAdvisoryGroup, LLC"
6. The annual fee for services shall be as follows:
Beginningwith the effective date of this Agreement, the annual fee for service shall be 0. 14% ( 14 basispoints) per annum, charged as 0.0117% monthly to all included assetsin each Plan as of the date of the calculation.
Feeswill be deductedfrom Plan assetsandwill be paid to SHUSTER by the Trust/ Custodian for the Plan(s).
At SHUSTER'sdiscretionthebilling perioddescribedabovemaybe adjustedto quarterly.
APPENDIX D — INSURANCE REQUIREMENTS
A. Policies and Limits. SHUSTER must procure and maintain the following insurancepolicies and limits at all times during the term of this Agreement:
a. Commercial General Liability Insurance (" CGL"): The CGL policy must be issued on an occurrence basis, written on a comprehensivegeneralliability form (CG 00 01), and must include coverage for liability arising from the operations of SHUSTER or its subconsultants or subcontractors in the performance of the services, including products and completed operations, property damage, bodily injury and personaland advertisinginjury with limits of at least 2,000,000.00peroccurrence. Generalaggregatelimit shallbetwicetherequiredoccurrencelimit.
The CGL coveragemay be arrangedunder a singlepolicy for the full limits requiredor by a combination of underlying policies with the balance provided by excessor umbrella policies, providedeachsuchpolicycomplieswith therequirementssetforth herein. b. Automobile Liability: The automobile liability policy must provide coverageof at least 1,000,000.00 combined single -limit per accident for bodily injury, death or property damage. c. Workers' Compensation Insurance and Employer' s Liability: If SHUSTER has employees, thepolicymustcomplywith therequirementsof theCaliforniaWorkers' CompensationInsurance andSafetyAct, providingcoverageof atleast $1,000,000.00, or asotherwiserequiredby law. d. Professional Liability: The professional liability insurance policy must insure against SHUSTER'serrorsandomissionsin theprovisionof servicesunderthisAgreement, in anamount not less than 31,000,000.00 combined single limit. Any deductible or self -insured retention may not exceed $50,000. Theprofessionalliabilitypolicymustincludeprior actscoveragesufficientto coverall servicesprovidedby SHUSTERfor thisAgreement, andthecoveragetrust continuein effectfor five yearsfollowingfinal paymentto SHUSTER. The followingprovisionsapplyif the professionalliability policyis written on aclaims -madeform:
i. Theretroactivedateof thepolicymustbe shownandmustbe on or beforetheEffective Date of the Agreement.
ii. The insurance must be maintained and evidence of insurance must be provided for a continuousperiodof atleastfiveyearsfollowingexpirationof thetermor terminationof the Agreement, whichever occurs first.
a If the coverage is canceled or not renewed and is not replaced with another claims -made policy form with a retroactivedatethat is on or beforethe EffectiveDate of this Agreement, SHUSTERmustprovideextendedreportingcoveragefor aminimumof five yearsfollowingexpirationof thetermor terminationof theAgreement, whicheveroccurs first. The City has the right to procure, at SHUSTER's cost, any extendedreporting provisionsof thepolicyif SHUSTERcancelsor failsto renewthecoverage. iv. A copyof the claimreportingrequirementsmustbe submittedto the City before SHUSTERmaybeginperformingservicesunderthisAgreement.
B. Required Endorsements. The insuranceprovidedby SHUSTERmust includethe following endorsementsasspecifiedbelow. The endorsementsmust be executedby a person authorized to bind the issuinginsurer. Theendorsementsareto beprovidedonformsprovided, specified, or approvedbythe
City. As an alternative to the City' s forms, SHUSTER's insurer(s) may provide complete copies of all required insurancepolicies, including endorsements.
a. Additional Insured Endorsements: The General Liability andAutomobile Liability policies are to contain, or be endorsed to contain, the following provisions:
i. The City, its officers, officials, employees, and volunteers (" Additional Insureds") will be covered as additional insureds with respect to all covered liability. This must be provided in the form of an additional insured endorsement to SHUSTER' s insurance policy, using form CG 20 10 11 85, forms CG 20 10 10 01 and GC 20 37 10 01, or equivalent approved by the City. For design professionals form CG 20 07 may be used.
Alternatively, the additional insured endorsement may be provided as a separateowner's policy that complies with all of the requirements set forth in this Appendix D. ii. The inclusion of more than one insured will not operate to impair the rights of one insured againstanother, andthepolicieswill applyasthoughseparatepolicieshavebeenissuedto each of the Additional Insureds.
iii. The insurance provided by SHUSTER is primary and no insurance or self-insurance held or owned by any of the Additional Insureds may be calledupon to contribute to a loss or defense.
iv. Any failure by SHUSTER to comply with the reporting requirements for a policy will not affect nor abridge the coverageprovided for anyAdditional Insureds. v. The coverageor endorsement will not contain any limitations on the scopeof protection available to the Additional Insureds.
b. Notice: Each insurance policy required by this clausemust provide or be endorsed to statethat coveragewill not bereduced, canceled, or allowed to expire without at leastthirty (30) dayswritten noticeto the City, unlessdueto non-paymentof premiums, in which caseten (10) dayswritten notice is required.
c. Waiver of Subrogation: Each required policy must include an endorsement providing that the insurerwill waiveanyright of subrogationit mayhaveagainsttheCity. SHUSTERherebyagrees to waivesubrogationwhich anyinsurerof SHUSTERmayacquirefrom SHUSTERbyvirtue of the payment of any loss.
C. Deductibles and Self -Insured Retentions. Any deductiblesor self -insuredretentionsfor therequired insurancepoliciesaresubjectto prior approvalby the City Manager. Beforebeginningperformanceof the Services, SHUSTER must disclose the amounts of the deductibles and self -insured retentions that applyto therequiredpolicies. If theCityManagerdeternuinesthat thedeductibleor self -insuredretention for anyrequiredpolicyis unacceptablyhigh, attheoptionof City, (1) theinsurermustreduceor eliminate the deductible or self -insured retention with respect to the Additional Insureds, or ( 2) SHUSTER must provideabondor financialguaranteesatisfactoryto theCityguaranteeingpaymentof lossesandrelated investigations, claim administration, and defenseexpenses. During the term of this Agreement, SHUSTER may not increaseany deductiblesor self -insuredretentionswith respectto the Additional Insureds, without the prior written consentof the City Manager. The City Managermaycondition suchconsent uponSHUSTERprocuringa bond or financialguaranteethat is satisfactoryin form to the City, guaranteeingpaymentof lossesandrelatedinvestigations, claimadministration, anddefenseexpenses.
D. Subconsultants or Subcontractors. SHUSTER must ensure that each subconsultant or subcontractor is required to maintain the same insurance coverage required for SHUSTER under this Appendix D, with respect to its performance of services, including the required endorsements. SHUSTER must confirm that each subconsultant or subcontractor has complied with these insurance requirements before the subconsultantor subcontractoris permittedto beginservicesunderthisAgreement. Upon requestby the City, SHUSTER must provide certificates and endorsements submitted by each subconsultant or subcontractor to prove compliance with this requirement. The insurancerequirements for subconsultants or subcontractors do not replace or limit SHUSTER' s insurance obligations.
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