INVESTMENT ADVISORY AGREEMENT
THIS AGREEMENT, made and entered into as of the ___ day of January, 2002,
by and between THE CITY COUNCIL, SITTING AS THE BOARD OF TRUSTEES OF
THE GENERAL EMPLOYEES’ PENSION FUND and THE BOARD OF TRUSTEES
OF THE FIREFIGHTERS’ PENSION FUND (hereinafter collectively referred to as “the
Boards”) and Wellington Management Company, LLP. a Massachusetts limited liability
partnership (hereinafter referred to as “Wellington”).
W I T N E S S E T H:
WHEREAS, the Boards are desirous of retaining the professional services of an
investment advisor/money manager to invest and manage the assets of the City of
Orlando General Employee Pension Trust Fund and the City of Orlando Firefighters’
Pension Trust Fund, and
WHEREAS, the Pension Advisory Committee and the Firefighters’ Pension
Board of Trustees have reviewed the capabilities of Wellington and recommend
Wellington for providing the additional specialized investment advisor/money manager
services and has requested that the Boards’ Pension Consultant, Grant Kalson of Kalson
and Associates, perform the necessary follow-up due diligence;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and promises herein contained, the parties hereto agree as follows:
1. The performance of this Agreement shall commence on , 2002,
and shall continue in full force and effect from that date forward, subject to termination
as provided in paragraphs 11 and 12.
2. The Boards hereby appoint and retain Wellington as investment
advisor/money manager with respect to the investment of a portion of the pension fund
assets held by the Boards. In consideration of this appointment, Wellington agrees to act
as investment advisor/money manager with respect to the investment of a portion of the
assets, securities, funds and other properties of the above mentioned pension trust funds
(hereinafter referred to as “the Account”). Subject to Sections 6 and 7 herein, Wellington
shall have full power and complete discretion to act on behalf of the Account with respect
to the purchase, sale, exchange, conversion or other transactions in any and all stocks,
bonds, cash held for investment, and other assets. Wellington understands and agrees
that it is one of several investment advisors/money managers retained by the Boards.
3. Wellington understands and agrees that the Boards have also retained
Kalson & Associates to provide pension consulting and performance measurement
services; Gabriel, Roeder, Smith & Company to provide actuarial services for the General
Employees and Firefighters’ Pension Funds; and the Northern Trust Company to serve as
“Custodian” of the Account. Wellington also agrees to work with and cooperate with
Kalson & Associates, Gabriel, Roeder, Smith & Company, and The Northern Trust
Company or their successors, during the term of this Agreement.
4. Wellington represents, certifies and warrants that it is duly registered and
legally entitled to perform the services herein set forth and further acknowledges that it is
acting as a fiduciary with respect to the investment and the management of the Account.
5. The Boards represent and confirm that they are legally authorized in
accordance with the laws of the State of Florida to execute this Agreement, and will
deliver to Wellington such evidence of authority as may reasonably be required.
6. For so long as Wellington shall serve as investment advisor/money
manager in accordance with the terms of this Agreement, it shall have the power and
authority to manage the Account in accordance with and subject to the guidelines set
forth in the “Investment Policy Statement,” attached hereto as Exhibit “A” and
incorporated by reference herein, which may be amended or modified from time to time
by mutual agreement. Wellington further acknowledges and agrees that it is being
retained to invest and manage the Account as an active Large-Capitalization Value
Equity Manager as set forth in Exhibit “A.”
7. In particular, Wellington shall have the following duties and powers:
A. It shall regularly and continuously collect information pertaining to
investments, securities, the economy, and other matters pertinent to making the
determinations required of it in subparagraph B of this paragraph 7.
B. It shall regularly and continuously review the individual assets,
securities, funds and other properties held in the Account, including any additional funds
deposited by the Boards with the Custodian from time to time, and the income from,
accretions to, and mutations of such assets, securities, funds and other properties. Such
review shall be conducted to determine the advisability of: (1) retaining some of all such
assets, securities, funds and other properties held in the Account; (2) selling, exchanging,
redeeming, liquidating or disposing of some or all of such assets, securities and other
properties; (3) investing some or all of the proceeds from such sale, exchange,
redemption, liquidation or disposition in other assets, securities or other properties; or (4)
investing some or all of the funds in the Account in other assets, securities or properties.
C. With respect to those assets, securities or other properties which
from time to time Wellington shall place orders directly with brokers or dealers or other
persons to sell, exchange, redeem, liquidate or dispose of any of such assets, securities or
other properties, Wellington shall have full power in its sole discretion to select such
broker, dealer or other person to establish the price and trade conditions, including
brokerage commissions unless notified in writing to the contrary by the Chairman or City
Treasurer acting on behalf of the Boards.
D. With respect to those proceeds from sales, exchanges,
redemptions, liquidations or dispositions which from time to time Wellington determines
should be invested in other assets, securities or properties; and with respect to those funds
in the Account which from time to time Wellington determines should be invested in
other assets, securities or properties; Wellington shall place orders directly with brokers
or dealers or other persons to purchase or acquire such other assets, securities or
properties. Wellington shall have full power in its sole discretion to select each broker,
dealer or other person and to establish the price and trade conditions, including brokerage
commissions unless notified in writing to the contrary by the Chairman or City Treasurer
acting on behalf of the Boards.
E. Where Wellington orders the execution of portfolio-transactions
for the Account, Wellington may allocate such transactions to such brokers and dealers
for execution on such markets, at such prices and at such commission rates as is in the
good faith judgment of Wellington that will be in the best interest of the Account, taking
into consideration in the selection of such brokers and dealers not only the available
prices and rates of brokers’ commissions, but also other relevant factors (such as, without
limitation, execution capabilities, research and other services provided by such brokers
and dealers which are expected to enhance the general portfolio management capabilities
of Wellington, and the value of an ongoing relationship of Wellington with such brokers
and dealers without having to demonstrate that such factors are of a direct benefit to the
Account. However, should Wellington determine that it is desirable to pay a higher
commission rate than would be normal to that broker (“Paying Up”) in order to utilize
the “marked up” portion of the volume or transaction credit (a.k.a. “soft dollars”) for
purchase of items (such as services, publications, hardware, software, etc.), the Boards’
approval shall be requested and obtained from the Chairman or City Treasurer acting on
behalf of the Boards in writing, and the Boards shall be notified in advance of any
allocation of soft dollars generated by the assets of the funds. If trades are executed in
line with Wellington’s Statement of Policy on Brokerage Practices (attached hereto as
Exhibit “B”) of best price and execution and the commission rate is based solely on the
execution requirements of the trade, then a broker may provide research services that are
either internally generated or purchased on behalf of Wellington on a third party basis
without prior Board approval. All third party services must qualify as research as defined
by Section 28e of the United States Securities Exchange Act of 1934.
F. When Wellington does place orders directly with brokers or
dealers or other persons to purchase, acquire, sell, exchange, redeem, liquidate or dispose
of any asset, security or other property in the Account, Wellington shall, as soon as
reasonably possible after doing so, give notice to the Custodian of the fact that
Wellington has placed such orders.
G. Wellington shall give to the Custodian such instructions or
directions concerning the exercise of any conversion privilege, subscription right, or
other right to make an investment decision available to the Account as from time to time
Wellington, in its discretion, believes advisable.
H. Wellington shall vote all proxies for the Boards on behalf of the
funds and in the best interest of the funds considering the investment objectives, in
accordance with Wellington’s Proxy Voting Guidelines, a copy of which has been
provided to the Boards and attached hereto as Exhibit “C.”
I. It is understood that Wellington performs investment advisory
services for clients other than the Boards. The Boards agree that Wellington may give
advice and take action in the performance of its duties with respect to any of its other
clients which may differ from advice given, or the timing or nature of action taken, with
respect to the Account, so long as it is Wellington’s policy, to the extent practical, to
allocate investment opportunities to the Account over a period of time on a fair and
equitable basis relative to other clients. Nothing in this Agreement shall be deemed to
impose upon Wellington any obligation to purchase or sell for the Account any asset,
security or other property which Wellington, its principals, affiliates or employees may
purchase or sell for its or their own accounts or for the Account or any other client, if in
the sole discretion of Wellington such transactions or investments appear unsuitable,
impractical or undesirable for the Account and considering the “Investment Policy
Statement” Exhibit A.
J. Wellington shall use its best efforts to increase the value of the
Account; however, Wellington cannot and does not guarantee any such increase.
Wellington shall not be liable for any decrease in the value of the Account, except if such
decrease is the result of a breach of Wellington’s fiduciary duties with respect to the
Account or of a violation of applicable law or written investment policy adopted by the
Boards and furnished to Wellington. Nothing herein shall in any way constitute a waiver
or limitation of any rights which the Boards or any person interested in the pension funds
may have under any applicable federal or state laws.
K. (1) Any instruction, direction or notification given to the
Custodian in the Performance of this agreement shall be given or confirmed in writing.
(2) An officer or partner of Wellington shall from time to time
certify to the Custodian the name or names of the person or persons authorized to act on
its behalf and furnish the Custodian a specimen of their signatures. Any individual so
certified shall be deemed to be Wellington’s authorized representative(s). When any
individual so certified shall cease to have authority to act on its behalf, Wellington shall
promptly give written notice of that fact to the Custodian, but until such notice is received
by the Custodian, such individual shall continue to be an authorized representative.
L. Wellington shall not have any authority to hold or have possession
of any assets, securities, funds or other properties of the Account. The possession of any
assets, securities, funds or other properties held in the Account shall at all times, except
when securities are held by a seller pending delivery to or in the hands of a transfer agent,
be held, controlled and administered by the Custodian, and such assets, securities, funds
and other properties held in the Account shall be held by the Custodian either in its own
name, the name of a nominee or in bearer form; but all such assets, securities, funds and
other properties shall be held on the books and records of the Custodian in a manner so as
to clearly establish that they are held in the Account which is provided for in this
Agreement. Wellington shall have no responsibility with respect to the collection of
income, physical acquisition or the safekeeping of the assets, securities, funds and other
properties held in the Account. All such duties of collection, physical acquisition or
safekeeping shall be the sole obligation of the Custodian.
M. The Boards acknowledge that they recognize the inherent market
fluctuation risks which surround the investment and reinvestment of monies. The Boards
further acknowledge that they recognize that the basis of computation establishing costs
are based upon an expected rate of return. The Boards expressly agree that Wellington
shall not be required to take cognizance of any assumed rate of return or cash flow in the
exercise of its investment discretion. Such matters shall be the sole responsibility of the
Boards or their duly appointed representatives. Wellington shall not be bound by or
assumed to have knowledge of any amendment to the applicable Pension Acts or
ordinances until a written copy of such amendment is delivered to Wellington.
8. The Boards or their duly appointed representatives shall have the
A. The Boards shall cause the Custodian to provide Wellington with
all of the information which Wellington may reasonably require with respect to the
B. The Boards shall cause the Custodian to receive and maintain at
all times custody and control of the Account, as provided in paragraph 7 L. of this
Agreement, and to consummate transactions directed by Wellington by payment or
delivery by the Custodian of all assets, securities, funds or other properties due from the
Account. The funds to be paid shall be the amount of the purchase price plus all
applicable brokerage charges and taxes and the funds to be received shall be the sales
price minus all applicable brokerage charges and taxes.
C. The Boards shall cause the Custodian to notify Wellington in
writing whenever an election concerning any conversion privilege, subscription right, or
other right to make an investment decision is available to the Account as soon as
reasonably possible after it becomes available.
D. The Boards agree to furnish to Wellington a list of all persons
or entities which the Boards consider to be “disqualified persons,” as that term is defined
in Section 4975(e)(2) of the Internal Revenue Code (1991), or “parties in interest,” as that
term is defined in Section 3 of the Employment Retirement Income Security Act of 1974.
E. The Boards shall advise Wellington of the investment objectives of
the Account and of any changes or modifications therein as well as any specific
investment restrictions applicable thereto and shall give prompt written notice if the
Boards deem any investment made for the Account to be in violation of such objectives
or restrictions. Unless the Boards notify Wellington in writing of specific restrictions, the
investments recommended for, or made on behalf of, the Account shall be deemed not to
be restricted under the current or future laws of any state or by virtue of the terms of any
other contract or instrument purporting to bind the Boards or Wellington.
9. For its services, Wellington shall be paid at the end of each calendar
quarter a fee computed and based on the average of the market value of assets in the
Account (as reported by the Custodian) on the last day of each month for each such
calendar quarter managed by Wellington as investment advisor/money manager pursuant
to this Agreement. Such fee on an annual basis shall be as follows:
.60% on the first $25 million of assets under management
.50% on the next $25 million of assets under management
.40% on the next $50 million of assets under management
Wellington agrees to maintain the above fee schedule for three (3) years
from the date of this Agreement. Wellington further agrees to give the City a minimum
of ninety (90) days advance written notice prior to any proposed change in the above-
stated schedule of fees.
If Wellington shall serve for less than the whole of any quarterly period,
its compensation determined as provided above shall be calculated and shall be payable
on a pro rata basis for the period of the calendar quarter for which it has served as
manager under the Agreement.
10. The Boards may request meetings, as frequently as on a semi-annual basis,
with the account manager responsible for these assets which are under the control of
Wellington. Should performance or if there is a significant organizational change, more
frequent meetings may be required. For each of the Boards’ quarterly meetings,
Wellington is to provide a report as specified in the attached Investment Policy Statement
(Exhibit A) in the form acceptable to the Trustees within forty-five (45) days after the
close of the quarters ending March 31, June 30, September 30, and December 31.
11. With regard to termination:
A. This Agreement shall continue in effect until terminated by either
party giving to the other party advance written notice of at least thirty (30) days prior to
the date of termination.
B. The Boards may at any time, without prior notice, order
Wellington to cease activity with respect to the Account.
C. This Agreement shall not be assignable by either party.
12. Key contact(s) for the firm responsible for managing the Account include
but are not limited to Karen H. Grimes, Vice President, Associate Portfolio Manager,
Robert A. Rodriguez, Vice President, Relationship Manager. Any change in this
condition must be reported to the Boards through the Chairman or City Treasurer within
ten (10 ) business days from the time Wellington is on notice that this/these member(s) is
(are) resigning, departing, or when their role in the management of the account changes,
etc. Should the Boards decide to withdraw the Account from management, the
withdrawal time may be within a two (2) week period and this Agreement shall be
13. Any changes in the structure of ownership of the firm must be fully
described in writing to the board within ten (10 ) working days of the effective date of
14. The Boards agree that Wellington shall not be liable for breach of
fiduciary responsibility on the part of any fiduciary, other than Wellington with respect to
any responsibility, obligation or duty not assumed by Wellington pursuant to this
Agreement, except if: (1) Wellington participates knowingly in, or knowingly undertakes
to conceal, an act or omission of such fiduciary and knows such act or omission is a
breach; (2) by failure to discharge its fiduciary duties, Wellington has enabled such other
fiduciary to commit a breach; or (3) Wellington has knowledge of a breach by such other
fiduciary and does not make reasonable efforts under the circumstances to remedy the
breach. The Boards also agree that Wellington shall not be under any duty with regard to
any assets, securities, funds or other properties which are not part of the Account.
15. Unless otherwise specified herein, all written notices with respect to
security transactions or any other matters contemplated by this Agreement shall be
deemed duly given when deposited by first-class mail postage prepaid addressed to (or
delivered by hand to) Robert A. Rodriguez Wellington Management Company, LLP, 75
State Street, Boston, Massachusetts 02109, and when deposited by first-class mail
postage prepaid addressed to (or delivered by hand to) the Boards c/of the Chairman or
City Treasurer, City Hall, 400 South Orange Avenue, Fourth Floor, Orlando, Florida
16. This Agreement shall be interpreted and construed in accordance with, and
governed by, the law of the State of Florida, and any litigation arising out of this
Agreement shall be conducted in Orange County, Florida.
17. If any sentence, clause, paragraph or other part herein is held invalid or
unconstitutional by a court of competent jurisdiction, such sentence, clause, paragraph or
other part shall be deemed severable and the remainder of this Agreement shall remain in
full force and effect.
18. The Agreement may be amended only by means of a written document
signed by a duly authorized representative of each party.
WELLINGTON MANAGEMENT COMPANY, LLP
PERSONALLY appeared before me, the undersigned authority,
_______________________________ well known to me and known by me to be the
_______________________________ of the Wellington Management Company, LLP and
acknowledged before me that they executed the foregoing instrument in behalf of
____________________________ as its true act and deed, and that they were duly authorized so
WITNESS my hand and official seal, this ____ day of , 2002.
(SEAL) Notary Public
My Commission Expires:
ATTEST: CITY OF ORLANDO (CITY COUNCIL
SITTING AS BOARD FOR THE GENERAL
EMPLOYEES’ PENSION FUND)
City Clerk Mayor/Mayor Pro-Tem
ATTEST: THE BOARD OF TRUSTEES OF THE
ORLANDO FIREFIGHTERS’ PENSION
Felix Benetey, Secretary Ron Glass, Chairman
Approved as to form and legality for the
use and reliance of the City of Orlando
Date: , 2002.
City Attorney, City of Orlando, Florida