HomeMy WebLinkAbout1993-136RESOLUTION NO. 93-136
A RESOLUTION OF INDIAN RIVER COUNTY, FLORIDA,
AUTHORIZING THE INVESTMENT OF SURPLUS FUNDS, AS
PROVIDED BY SECTION 125.31, FLORIDA STATUTES, AND
IN THE FLORIDA COUNTIES INVESTMENT TRUST.
WHEREAS, Indian River County from time to time has funds on hand in
excess of current needs; and
WHEREAS, it is in the best interest of the citizens of Indian River
County that funds be invested in such a manner as to yield the highest return
possible consistent with proper safeguards for the handling of government
funds; and
WHEREAS, it is necessary for the Board of County Commissioners to
authorize the investment of surplus County funds to achieve the maximum
public benefit by ensuring that said funds earn the highest interest
allowable while deposited in prudent and safe investments, securities, and
institutions,
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF
INDIAN RIVER COUNTY, FLORIDA, than
1. For the purposes of this resolution the term "surplus funds" is defined
as funds in any general or special account or fund of Indian River
County held or controlled by the County Commissioners or the Clerk to
the Board of County Commissioners which, in reasonable contemplation,
will not be needed for the purposes intended within a reasonable time
from the date of such investment. Surplus funds shall not include any
funds subject to any contract or agreement on the date of enactment of
this resolution; such funds shall not be invested contract to such
contract or agreement.
2. The Board of County Commissioners of Indian River County hereby
authorizes the investment of surplus funds in the control or possession
of the Clerk to the Board of County Commissioners in those investments
authorized by Section 125.31, Florida Statutes, as may be amended from
time to time, and in the shares of the Florida Counties Investment Trust
(FCIT) of which Indian River County is a member, and in any specific
additional investments authorized by a subsequent Board of County
Commissioners resolution.
Indian River County Board of 'County Commissioners.
4` .This resolution. replaces any conflicting prior resolutions adopted by
the Indian River Board of County Commissioners and specifically repeals
Resolution No. 89-76.
The resolution was moved for adoption by Commissioner Fp$ert and
the motion was seconded by Commissioner Tinnin , and, upon being put to a
vote, the vote was as follows:
Chairman Richard N. Bird Aye
Vice Chairman John W. Tippin Aye
Commissioner Carolyn K. Eggert Aye
Commissioner Fran B. Adams Aye
Commissioner Kenneth R. Macht Aye
The Chairman thereupon declared the resolution duly passed and adopted
this int -h day of August . 1993.
BOARD OF COUNTY COMMISSIONERS
INDIAN RIVER COUNTY, FLORIDA
Attest:
By
Richard N. Bird
jeeffee ekrt6n Clerk Chairman
411
F .l'
EZBIEIT A
JOINDER TO aaREENENT AND DECIaRRTION OF TRUST
JOINDER TO
AGREEMENT AND DECLARATION OF TRUST
THIS JOINDER TO AGREEMENT AND DECLARATION OF TRUST is made
and entered into as of e„g„ar ins , 1993, by and between
Indian River County (the "County") and the Florida Counties
Investment Trust ("FCIT").
wSEREAS, it furthers the public interest for the County to
invest any monies not immediately required to be disbursed and to
maximize the net earnings on such funds; and
WHEREAS, the FCIT is being established for the purpose of
establishing one or more investment funds (each referred to herein
as an "Investment Fund") for pooling the surplus funds of
participating public entities for joint investment in order to seek
a higher rate of return without compromising the safety of such
funds; and
AREAS, the County desires to have the Investment Funds
available should they be determined, at any time, to be an
advantageous investment for the County's surplus funds; and
WHEREAS, the Investment Funds are only available to public
entities that have become parties to the Agreement and Declaration
of Trust creating the Florida Counties Investment Trust, dated as
of November 1, 1991 (the "Trust Agreement");
NOW THEREFORE, for and in consideration of the mutual
covenants and agreements herein -contained, the County and the FLIT
hereby agree as follows:
SECTION 1. JOINDER IN TRUST AGREEMENT. Upon execution and
delivery of this Joinder Agreement, the County shall become a full
party to the Trust Agreement, a copy of which is attached hereto
as Appendix A and incorporated herein by reference, pursuant to
Section 2.03 thereof.
SECTION 2. COUNTERPARTS. This Joinder Agreement may be
simultaneously executed in two or more counterparts, each of which
shall be an original and all of which shall constitute but one and
the same instrument. The signatures of parties appearing on one
or more counterparts shall bind them as fully as though all such
parties had signed the same counterpart.
IN WITNESS WHEREOF, the Florida Counties Investment Trust and
the Board of County Commissioners of Indian River County, Florida,
I
have caused this Joinder Agreement to be executed and attested by
its duly authorized officers, all as of the date first above
written.
ATTEST:
Secretary
(SEAL)
FLORIDA COUNTIES INVESTMENT TRUST
By:
Chairman of the Board of Trustees
INDIAN RIVER COUNTY, FLORIDA
Z' Z�li; � 1, 0 �_
Chairman, Board of County
Commissioners
ATTEST: Richard N. Bird
Clerk -.$b the #pard
(19EAL) may.
2
APPROVED AS TO FORM
AND EGA4::SUFFICIENCY:
Charles P. Vitunac
County Attorney
APPEKDIZ A
FORK OP
AGMXMMNT AND DZCLMMTIOK OF TRUBT
creating and establishing the .
FLORIDA COUNTIES INVESTMENT TRUST
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND CO2
SECTION 1.01. DEFINITIONS . . . . . . . . . . . . . . . 3
SECTION 1.02. SECTION HEADINGS . . . . . . . . . . . . . . . 6
ARTICLE II
CREATION AND PURPOSE OF THE TRUST
SECTION 2.01. CREATION OF TRUST• • . . . . . . . . . 7
SECTION 2.02. PURPOSE AND NATURE OF TRUST . . . . . . . . . 7
SECTION 2.03. PARTICIPANT REQUIREMENTS . . . . . . . . . . . 8
SECTION 2.04. PRINCIPAL OFFICE . . . . . . . . . . . . . . . 8
ARTICLE III
BOARD OF TRUSTEES
SECTION
3.01.
APPOINTMENT OF TRUSTEES . . . . . . .
. . . . 9
SECTION
3.02.
RESIGNATIONS . . . . . . . . . . . . .
. . . . 9
SECTION
3.03.
BOARD MEETINGS• . . . . . . . . . .
. . . . 10
SECTION
3.04.
QUORUM AND VOTING . . . . . . . . . .
. . . . 10
SECTION
3.05.
CONFLICTS OF INTEREST . . . . . . . .
. . . . 11
SECTION
3.06.
BOOKS AND RECORDS . . . . . . . . .
. . . . 11
SECTION
3.07.
OFFICERS OF THE BOARD . . . . . . . .
. . . . 11
SECTION
3.08.
COMPENSATION . . . . . . . . . . .
. . . . 12
SECTION
3.09.
STANDARD OF CARE . . . . . . . . . . .
. . . . 12
SECTION3.10.
LIABILITY . . . . . . . . . . . . . .
. . . . 12
SECTION
3.11.
INDEMNIFICATION . .
. . 13
SECTION
3.12.
LEGAL TITLE TO TRUST PROPERTY
13
SECTION
3.13.
EXECUTION OF DOCUMENTS . . . . . . . .
. . . . 13
SECTION
3.14.
BY-LAWS . . . . . . . . . . . . . . .
. . . . 13
SECTION
3.15.
SEAL . . . . . . . . . . . . . . . . .
. . . . 14
SECTION
3.16.
SURETY BONDS . . . . . . . . . . . . .
. . . . 14
SECTION3.17.
RECITALS .• . . . . . . . . .
. . . . 14
SECTION
3.18.
RELIANCE ON EXPERTS . . . . . . . . .
. . . . 14
1
0
ARTICLE IV
POWERS OF THE TRUSTEES
SECTION4.01.
GENERAL . . . . . . . . . . . . . . .
15
SECTION
4.02.
INVESTMENT FUNDS .15
•OF
SECTION
4.03.
ACQUISITION AND DISPOSITION ASSETS•
17
SECTION4.04.
DELEGATION . . . . . . . . . . . . . . . . . .
17
SECTION
4.05.
COLLECTION• . . . . . . . . . . . . .
18
SECTION
4.06.
PAYMENT OF EXPENSES . . . . . . . . . .
18
SECTION
4.07.
BORROWING AND INDEBTEDNESS . . . . . . . . . .
18
SECTION
4.08.
DEPOSITS• . . . . . . . . . . . . . . . . . .
19
SECTION
4.09.
VALUATION. . • . • .
19
SECTION
4.10.
FISCAL YEAR ANDCHARTOF ACCOUNTS
19
SECTION
4.11.
CONCERNING THE TRUST AND AFFILIATES . . .
19
SECTION
4.12.
INVESTMENT POLICY . . . . . . . . . . . . .
19
SECTION
4.13.
AGENTS AND EMPLOYEES . . . . . . . . . . . . .
19
SECTION
4.14.
INSURANCE . . . . . . . . . . . . . . . .
20
SECTION
4.15.
ANNUAL REPORTS •
20
SECTION
4.16.
PURSUIT OF REMEDIES . . . . . . . .
21
SECTION
4.17.
INFORMATION STATEMENT . . . . . . . . . . . .
21
SECTION
4.18.
•
TAXES. . . .
•OF
21
SECTION
4.19.
RIGHTS AS�HOLDERS TRUST PROPERTY . . . . .
21
SECTION
4.20.
EDUCATION AND TECHNICAL ASSISTANCE . . . . . .
21
SECTION
4.21.
FURTHER POWERS . . . . . . . . . . . . . . . .
21
ARTICLE V
INVESTMENT ADVISOR, ADMINISTRATOR AND TRUST COUNSEL
SECTION
5.01.
APPOINTMENT . . . . . . . . . . . . . .
. 23
SECTION
5.02.
DUTIES OF THE INVESTMENT ADVISOR . . . . . .
. 23
SECTION
5.03.
DUTIES OF THE ADMINISTRATOR . . . . . . . .
. 23
SECTION
5.04.
DUTIES OF THE TRUST COUNSEL . . . . . . . .
. 24
SECTION5.05.
SUCCESSORS . . . . . . . . . . . . . . . . .
. 24
ARTICLE VI
CUSTODIAN
SECTION
6.01.
QUALIFICATIONS . . . . . . . . . . . . . . .
. 25
SECTION
6.02.
.
SUCCESSORS .. . . . . . . . . .
. 25
SECTION
6.03.
PROHIBITED TRANSACTIONS . . . . . . . . .
. 25
11
0
ARTICLE VII
INTEREST OF PARTICIPANTS
GENERAL. . . . . . . . . . . . . . . . . 26
INVESTMENTS. . . . . . . . . 26
EVIDENCE OF PARTICIPANT SHARES . . . . . . . . 26
REDEMPTIONS• • • . . . . . 26
SUSPENSION OF REDEMPTION OR PAYMENT . . . . . 27
MINIMUM INVESTMENT . . . . . . . . . . . . . . 28
MINIMUM REDEMPTION28
DEFECTIVE REDEMPTION REQUESTS*
28
ARTICLE VIII
RECORD OF SHARES
SECTION
8.01.
SECTION
7.01.
SECTION
7.02.
SECTION
7.03.
SECTION
7.04.
_ SECTION
7.05.
SECTION
7.06.
SECTION
7.07.
SECTION
7.08.
ARTICLE VII
INTEREST OF PARTICIPANTS
GENERAL. . . . . . . . . . . . . . . . . 26
INVESTMENTS. . . . . . . . . 26
EVIDENCE OF PARTICIPANT SHARES . . . . . . . . 26
REDEMPTIONS• • • . . . . . 26
SUSPENSION OF REDEMPTION OR PAYMENT . . . . . 27
MINIMUM INVESTMENT . . . . . . . . . . . . . . 28
MINIMUM REDEMPTION28
DEFECTIVE REDEMPTION REQUESTS*
28
ARTICLE VIII
RECORD OF SHARES
SECTION
8.01.
SHARE REGISTER . . . . . . . . . . . . . .
. . 29
SECTION
8.02.
REGISTRAR. . . . . . . . . . . . .
. . 29
SECTION
8.03.
OWNER OF RECORD.. . . . . . . .
. . 29
SECTION
8.04.
NO TRANSFER OF SHARES.. .
. . 29
SECTION
8.05.
LIMITATION OF FIDUCIARYRESPONSIBILITY . .
. . 30
SECTION8.06.
NOTICES . . . . . . . . . . . . . . . . .
. . 30
ARTICLE IX
VALUATION OF INVESTMENT FUNDS
SECTION
9.01.
ASSET VALUATION . . . . . . .
. 31
SECTION
9.02.
COMPUTATION OF NET ASSET VALUE . . . . . . .
. 32
SECTION
9.03.
COMPUTATION OF SHARE VALUE . . . . . . .
. 33
SECTION
9.04.
EXPENSES, RETAINED EARNINGS AND RESERVES . .
. 33
ARTICLE X
AMENDMENT OR TERMINATION OF TRUST; DURATION OF TRUST
SECTION10.01. AMENDMENTS . . . . . . . . . . . . . . . . . . 34
SECTION 10.02. TERMINATION . . . . . . . . . . . . . . . . . 34
SECTION10.03. DURATION . . . . . . . . . . . . . . . . . . . 35
iii
1
ARTICLE XI
MISCELLANEOUS
SECTION
11.01.
GOVERNING LAW . . . . . . . . . . . . .
. . . 36
SECTION
11.02.
COUNTERPARTS •• . . .
36
` SECTION
11.03.
RELIANCE BY THIRD PARTIES
36
SECTION
11.04.
PROVISIONS IN CONFLICT WITH.. . . .
. . . 36
iv
AGREEMENT AND DECLARATION OF TRUST
THIS AGREEMENT AND DECLARATION OF TRUST is made and entered
into as of December 1, 1991, by and among Brevard County, Hernando
County, Manatee County and Orange County, as the initial
participants of the Florida Counties Investment Trust (the "Initial
Participants") and Robert L. Anderson, Scott I. Cowan, Martha O.
Haynie, Karen Nicolai, Richard B. Shore and Terry R. Wood, as the
initial Trustees of the Florida Counties Investment Trust (the
"Initial Trustees").
W I T N E 8 8 E T Hs
WHEREAS, it furthers the public interest for public entities
to invest any monies not immediately required to be disbursed and
to maximize the net earnings on such funds; and
WHEREAS, the Initial Participants each desire to enter into
a trust agreement and thereby establish one or more investment
funds (each referred to herein as an "Investment Fund") for pooling
their surplus funds for joint investment in accordance with the
provisions of this Agreement and Declaration of Trust (the
"Agreement"); and
WHEREAS, each of the Initial Participants has duly taken all
official action necessary and appropriate to become a party to this
Agreement; and
WHEREAS, it is the desire and intent of the Initial Trustees
to serve in the capacity of trustees of the Florida Counties
Investment Trust for the purpose of operating, managing and
maintaining the assets and liabilities thereof; and
WHEREAS, it is the intent and purpose of this Agreement to
invest the pooled funds only in the manner authorized by applicable
law; and
WHEREAS, it is proposed that the beneficial interest of any
Participant hereunder in the assets of any Investment Fund created
pursuant to the provisions of this Agreement shall be divided into
non -transferable shares of beneficial interest, which shall be
evidenced by share registers maintained by or on behalf of the
Trustees; and
t
WHEREAS, the initial Participants anticipate that other public
entities may wish to become Participants hereunder by becoming
parties to this Agreement;
NOW THEREFORE, in consideration of the mutual promises,
covenants and agreements contained herein, the Initial Participants
and Participants hereafter added pursuant to the provisions hereof,
mutually undertake, promise and agree for themselves, their
respective representatives, successors and assigns that all monies,
assets, securities, funds and property now or hereafter acquired
by the Trustees, their successors or assigns under this Agreement,
shall be held and managed in tryst for the mutual and proportionate
benefit of the holders of record from time to time of shares of
beneficial interest in one or more Investment Funds established
pursuant to this Agreement, without privilege, priority or
distinction among such holders, and subject to the terms,
covenants, conditions, purposes and provisions hereof as follows:
ARTICLE I
DEFINITIONS AND
SECTION 1.01. DEFINITIONS. As used in this Agreement and
Declaration of Trust, the following terms shall have the following
meanings unless the context hereof otherwise requires. Words
importing the singular number shall include the plural in each case
and vice versa, and words importing persons shall include firms and
corporations.
"Administrator" shall mean the person or persons appointed,
engaged by the Trustees in accordance with the applicable
provisions of Section 5.01 hereof, to perform the duties described
in Section 5.03 hereof.
"Affiliate" shall mean, with respect to any person, another
person directly or indirectly controlled by or under common control
with such person, or any officer, director, partner or employee of
such person.
"Agreement" shall mean this Agreement and Declaration of
Trust, including any amendments, supplements or joinders hereto
executed and delivered in accordance with the terms hereof.
"Annual Report" shall mean the annual report required by
Section 4.15 hereof.
"Board" shall mean the Board of Trustees responsible for the
operation and administration of the Trust.
"Business Day" shall mean any day upon which banks in the
State are open to transact regular business.
"Clerk's Association" shall mean the Florida Association of
Court Clerks and County Comptrollers.
"County Association" shall mean the Florida Association of
Counties, Inc.
"Custodian" shall mean the bank or trust company engaged by
the Trustees in accordance with the applicable provisions of
Section 6.01 hereof.
"Custodian Agreement" shall mean the agreement between the
Trust and the Custodian referred to in Section 6.01 hereof, as the
same may be amended from time to time.
"Development Expenses" means any charges or expenses
associated with the initial formation of the Trust, including legal
3
fees and amounts advanced by the County Association and the Clerk's
Association.
"Education Expenses" means any charges or expenses associated
with education and technical assistance, as set forth in section
4.20 hereof.
"Fiscal Year" shall mean the annual period beginning October 1
of each year and ending September 30 of the following year unless
modified by the Trustees pursuant to Section 4.10 hereof.
"Information Statement" shall mean the information statement
or other descriptive document or documents adopted as such by the
Trustees and distributed by the Trust to Participants and potential
Participants of the Trust as the same may be amended by the
Trustees from time to time.
"Initial Participants" shall mean Brevard County, Hernando
County, Manatee County and Orange County, which are Public Entities
of the State and which, acting with respect to the surplus funds
of their respective treasuries, formed this Trust by the execution
and adoption of this Agreement.
"Initial Trustees" shall mean Robert L. Anderson, Scott I.
Cowan, Martha O. Haynie, Karen Nicolai, Richard B. Shore and Terry
R. Wood, as the initial Trustees of the Florida Counties Investment
Trust.
"Investment Advisor" shall mean the person or persons engaged
by the Trustees in accordance with the applicable provisions of
Section 5.01 hereof to perform the duties described in Section 5.02
hereof.
"Investment Advisory Agreement" shall mean the agreement with
the Investment Advisor referred to in Section 5.02 hereof as the
same may be amended from time to time.
"Investment Fund" shall mean a trust fund established by the
Trustees pursuant to Section 4.02 hereof, to enable the
Participants to pool their surplus funds for joint investment in
accordance with the provisions of this Agreement.
"Net Asset Value" shall mean the aggregate value of Shares in
an Investment Fund, determined in accordance with Section 9.02
hereof.
"Operating Expenses" means any charges or expenses which, in
the opinion of the Trustees, are necessary or incidental to or
proper for carrying out any of the purposes of this Agreement,
including appropriate compensation or fees to persons with whom the
Trust has contracted or transacted business.
"Participant" shall mean the Initial Participants and the
Public Entities which comply hereafter with the provisions of
Section 2.03 hereof.
"Permitted Investments" shall mean the investments authorized
by the Trustees for any specific Investment Fund, as authorized by
Section 4.02 hereof.
"Public Entity or Public Entities" shall mean any
municipality, county, public utility, or other political
subdivision of the State, or any department, agency, or
instrumentality thereof, or any political or public corporation
thereof, existing as a local government entity under the
Constitution and laws of the State, which is authorized to invest
in the Trust.
"Share" shall mean the unit used to denominate and measure the
respective pro rata beneficial interest of the Participants in the
Trust Property, as described in Article VII.
"Share Register" shall mean the register of Shares maintained
pursuant to Article VIII hereof.
"Share Value" shall mean the value of each Share in an
Investment Fund, determined in accordance with Section 9.03 hereof.
"State" shall mean the State of Florida.
"Transaction Execution Date" means the Business Day on which
a Participant makes an investment in or redemption from an
Investment Fund.
"Transaction Valuation Date" means the Business Day
immediately preceding each Transaction Execution Date.
"Trust" shall mean the "Florida Counties Investment Trust" as
established and governed by this Agreement.
"Trust Counsel" shall mean the attorney or firm of attorneys,
experienced in matter of local government law and duly admitted to
practice law in the State, as may be engaged or employed by the
Board pursuant to Section 5.04 of this Agreement.
"Trust Property" shall mean, as of any particular time, any
and all property, real, personal, or otherwise, tangible or
intangible, which is transferred, conveyed or paid to the Trust or
Trustees, and all assets, income, profits and gains therefrom and
which, at such time, is owned or held by or for the account of the
Trust or the Trustees, including but not limited to Permitted
Investments.
5
OPTrustess" shall mean the Initial Trustees of the Florida
Counties Investment Trust designated in Section 3.01 of this
Agreement or any successors appointed thereafter as provided in
said Section 3.01.
BECTION 1.02. BECTZON HEADINGS. Any headings preceding the
texts of the several Articles and Sections of the Agreement and any
table of contents or marginal notes appended to copies hereof,
shall be solely for convenience of reference and shall neither
constitute a part of this Agreement nor affect its meaning,
construction or effect.
6
ARTICLE II
CREATION AND PURPOSE OF THE TRUST
SECTION 2.01. CREATION OF TRUST. There is hereby created and
established an investment trust for surplus public funds to be
known as the "Florida Counties Investment Trust," the operation and
administration of which shall be the responsibility of the
Trustees. The Trustees shall conduct the Trust's activities, hold
property, execute all documents and sue or be sued as the "Florida
Counties Investment Trust" and such name (and the name "Trust",
wherever used in this Agreement or related documents, except where
the context otherwise requires) shall refer to the Board of
Trustees in their capacity as Trustees, and not individually or
personally, and shall not refer to the officers, agents, employees,
counsel, advisors, consultants, accountants, or Participants of the
Trust or of such Trustees. Should the Trustees determine that the
use of such name is not practicable, legal or convenient, they may
use such other designation or adopt such other name for the Trust
as they deem proper, and the Trust may hold property and conduct
its activities under such designation or name. The Trustees shall
take such action as they deem necessary or appropriate to file or
register such name in accordance with the laws of the State or the
United States of America so as to protect and reserve the right of
the Trust in and to such name.
SECTION 2.02. PURPOSE AND NATURE OF TRUST.
(A) The purpose of the Trust is to provide Investment Funds
through which Public Entities may pool funds which are not
immediately required to be disbursed in order to take advantage of
Permitted Investments and maximize net earnings, subject to and in
accordance with the provisions of the laws of the State, from time
to time in effect, governing the investment of funds by such Public
Entities.
(B) The Trust is created pursuant to and shall be subject to
and governed by all applicable laws of the State. The Trust is not
intended to be, shall not be deemed to be, and shall not be treated
as a general partnership, limited partnership, joint venture,
corporation, investment company, joint stock company, or any other
entity or organization other than a local government surplus funds
trust fund. The Participants shall be the beneficiaries of the
Trust and their relationship to the Trustees shall be solely in
their capacity as Participants and beneficiaries in accordance with
the rights conferred upon them hereunder.
(C) This Agreement is an agreement of indefinite term
regarding the deposit, redeposit, investment, reinvestment and
withdrawal of local government funds within the meaning of the laws
of the State. The Trust Property shall be invested in compliance
with the laws of the State and the provisions hereof.
SECTION 2.03. PARTICIPANT REQOiREMENTS. A Public Entity may
become a Participant by (A) enacting an ordinance authorizing the
investment of its funds in the manner described in this Agreement,
(8) agreeing by written instrument to be bound by the terms of this
Agreement, and (C) providing written evidence to the Trust that
the Clerk of the Circuit Court, County Comptroller or other
comparable officer of such Public Entity, if such office is filled
by election, has approved participation in the Trust, each in form
and substance acceptable to the Trust Counsel. Each Public Entity,
once having become a Participant as set forth above, shall continue
as a Participant until a subsequent Ordinance and written
instrument withdrawing from the Trust are enacted, adopted and
delivered to the Trustees and Administrator stating that Public
Entity's intent to withdraw from participation in the Trust.
SECTION 2.04. PRINCIPAL OFFICE. The Trust shall maintain an
office of record in the State and may maintain such other offices
or places of business as the Trustees may from time to time
determine. The initial office of record of the Trust shall be 101
East College Avenue, Tallahassee, Florida 32301. The office of
record may be changed from time to time by resolution of the
Trustees, and notice of such change of the office of record shall
be given to each Participant.
ARTICLE III
BOARD OF TRUSTEES
SECTION 3.01. APPOINTMENT OF TRUSTEES. The Trust shall be
operated and administered by a Board of Trustees consisting of six
members. Three Trustees shall be appointed by and serve at the
pleasure of the County Association and three Trustees shall be
appointed by and serve at the pleasure of the Clerk's Association.
Upon appointment, each Trustee shall execute, acknowledge and
deliver to the Board and the organization responsible for such
Trustee's appointment an instrument in writing accepting such
appointment hereunder, and thereupon such Trustee, without any
further act, shall become fully vested with all the estates,
properties, rights, powers, trusts, duties and obligations of a
Trustee. Each Trustee shall be appointed for a term of one year
or until his or her successor is appointed and qualified as
provided herein. There shall be no limit upon the number of
successive terms to be served by any Trustee. Trustees' terms
shall commence on July 1. Notwithstanding the foregoing, the term
of the initial Trustees shall commence on the effective date of
this Agreement and expire on June 30, 1992.
The initial Trustees of the Trust are as follows:
Name Appointing organization
Robert L. Anderson
County Association
Scott I. Cowan
County Association
Martha O. Haynie
Clerk's Association
Karen Nicolai
Clerk's Association
Richard B. Shore
Clerk's Association
Terry R. Wood
County Association
SECTION 3.02. RESIGNATIONS.
Any Trustee may resign by delivering, either by mail or in
person, his or her written resignation to the Chairman of the Board
and the organization responsible for such Trustee's appointment.
Any person appointed to serve as a Trustee while serving as a
County Commissioner, Clerk of the Circuit Court or County
Comptroller shall be deemed to resign as a Trustee on the date such
person (A) ceases to hold such office or (B) is suspended from such
office, notwithstanding any subsequent reinstatement. Any person
who ceases being a Trustee for whatever reason shall forthwith turn
over to the remaining Trustees, at the principal office of the
Trust, any and all records, books, documents, property or other
assets in his or her possession owned by the Trust or by the Board
incident to the fulfillment of this Agreement and the
administration of the Trust. The Trust shall immediately notify
the County Association and the Clerks Association in writing of the
9
resignation of any Trustee appointed by such association. The
powers of the Board to act shall not be impaired or limited in any
way -pending the appointment of a successor Trustee to fill any
vacancy.
SECTION 3.03. BOARD MEETINGS.
(A) Notwithstanding any other provisions of this Agreement
to the contrary, meetings of the Board of Trustees shall be
governed by the substantive provisions of Section 286.011, Florida
Statutes, as the same may hereafter be amended and supplemented,
and any subsequently enacted statute succeeding to the functions
of Section 286.011. The Trustees hereby individually and
collectively agree to comply with the provisions thereof.
(B) The.annual meeting of the Board shall be held at such
times and at such places as determined periodically by the Board.
(C) Special meetings of the Board may be called by the
Chairman and in his or her absence by the Vice -Chairman, or by any
three Trustees. By unanimous consent of all of the Trustees,
special meetings of the Board may be held without written notice
at any time and place; otherwise, notice of all special meetings
of the Board shall be mailed to each Trustee at least ten days
prior to the time fixed for the meeting. The Administrator shall
receive notice of all meetings. All notices of special meetings
of the Board shall state the purpose thereof.
(D) To the extent permitted by Section 286.011, Florida
Statutes, telephonic regular or special meetings by conference call
j or other method of electronic voice transmission which permits each
participant to hear every other participant and join in the
discussion are specifically authorized.
i
(E) To the extent permitted by Section 286.011, Florida
Statutes, in the event all of the Trustees shall severally or
collectively consent in writing to any action taken or to be taken
by the Trust, such action is a valid action as though it had been
authorized at a formal meeting.
(F) The Board shall meet not less than semiannually.
t
i; (G) Absence of any Trustee for three consecutive meetings in
a year without justification, excuse or good cause shall be deemed
a resignation by such Trustee and the organization responsible for
such Trustee's appointment may declare vacant the position, which
shall be filled in the manner indicated above.
1' SECTION 3.04. QUORUM AND VOTING. A quorum for the
transaction of business at any regular or special meeting of the
#` Board shall consist of a majority of the Trustees then in office,
but shall never be less than four Trustees;,provided however, that
10
a majority of the Trustees present may act to continue the meeting
to any time and date specified in such action. Each Trustee shall
be entitled to one vote at any meeting of the Board. No vote by
proxy shall be permitted. The affirmative vote of not less than
four Trustees shall be required for any action of the Board.
SECTION 3.05. CONFLICTS OF INTEREST. No Trustee shall vote
on any matter which inures to his or her special private gain, or
the special gain of any principal, other than a Participant, by
whom he or she is retained. Such Trustee shall, prior to a vote
being taken, disclose the nature of his or her interest in the
matter from which he or she is abstaining from voting.
SECTION 3.06. BOORS AND RECORDS. The books and records
pertaining to the Trust shall be "public records" within the
meaning of Section 119.01(1), Florida Statutes, and any
subsequently enacted statute defining the term "public records."
The Trustees hereby individually and collectively agree to comply
with all provisions of law applicable to "public records."
SECTION 3.07. OFFICERS OF THE BOARD. Officers of the Board
required by this Agreement shall be elected at the annual meeting
held in accordance with Section 3.03(A) of this Agreement. In
addition, the Board may elect such other officers from their number
as it deems advisable. Notwithstanding their stated terms, all
officers shall serve at the pleasure of the Board.
(A) The Board shall elect a Chairman from their number, who
shall serve for a period of one year, or until a successor shall
have been duly elected and qualified, whichever is later and may
be elected to an unlimited number of consecutive terms. The
Chairman shall be the chief executive officer of the Trust, shall
preside at all meetings of the Board, shall have general
supervision over the affairs of the Trust and over the other
officers, and shall perform all such other acts and duties as are
incident to the Chairman's responsibilities as chief executive
officer.
(B) The Board shall elect a Vice -Chairman from their number,
who shall serve for a period of one year, or until a successor
shall have been duly elected and qualified, whichever is later and
may be elected to an unlimited number of consecutive terms. In
case of the absence or disability of the Chairman, the Chairman's
duties shall be performed by the Vice -Chairman. The Vice -Chairman
shall perform such additional duties as are authorized by the
Board.
(C) The Board shall elect a Secretary from their number, who
shall serve for a period of one year, or until a successor shall
have been duly elected and qualified, whichever is later and may
be elected to an unlimited number of consecutive terms. The
Secretary shall record and circulate the minutes of all meetings,
11
shall prepare agendas and records, and perform such additional
duties as are authorized by the Board.
SECTION 3.08. COMPENSATION. No Trustee shall be compensated
for service as a Trustee. A Trustee may be reimbursed for out-
of-pocket expenses in attending meetings or for other authorized
travel on behalf of the Trust. No Trustee shall be employed or
engaged by the Board to provide professional or other services to
the Trust.
SECTION 3.09. STANDARD OF CARE. The Trustees shall use
ordinary care and reasonable diligence in the administration of
the Trust. Nothing contained in this Agreement, either expressly
or by implication, shall be deemed to impose any duties or
responsibilities on the Trustees other than those expressly set
forth in this Agreement.
SECTION 3.10. LIABILITY. A Trustee shall not be personally
liable for monetary damages to any person for any statement, vote
decision, or failure to act, regarding the management or policy of
the Trust unless:
(A) the Trustee breached or failed to perform his or her
duties as a Trustee; and
(B) the Trustee's breach of, or failure to perform, his or
her duties constitutes:
(1) A violation of the criminal law, unless the Trustee
had reasonable cause to believe such conduct was lawful or had
no reasonable cause to believe such conduct was unlawful. A
judgment or other final adjudication against a Trustee in any
criminal proceeding for violation of the criminal law shall
estop that Trustee from contesting the fact that such breach,
or failure to perform, constitutes a violation of the criminal
law; but 'does not estop the Trustee from establishing that
such Trustee had reasonable cause to believe that such conduct
was lawful or had no reasonable cause to believe that such
conduct was unlawful;
(2) A transaction from which the Trustee derived an
improper personal benefit, either directly or indirectly; or
(3) Recklessness or an act or omission which was
committed in bad faith or with malicious purpose or in a
manner exhibiting wanton and willful disregard of human
rights, safety, or property.
For the purposes of this Section 3.10, the term "recklessness"
means the acting or omission to act, in conscious disregard of a
risk: (i) known, or so obvious that it should have been known to
the Trustee; and (ii) known to the Trustee, or so obvious that it
12
should have been known, to be so great as to make it highly
probable that harm would follow from such action or omission.
SECTION 3.11. INDEMNIFICATION.
(A) The Trust shall, to the extent permitted by law,
indemnify any person who was or is a party (other than an action
by, or in the right of, the Trust), by reason of the fact that such
person is or was a Trustee, officer or direct employee of the Trust
against liability incurred in connection with such proceedings on
behalf of the Trust, including any approval of such proceedings,
if such person acted in good faith and in a manner reasonably
believed to be in, or not opposed to, the best interest of the
Trust and, with respect to any criminal action or proceedings, had
no reasonable cause to believe such conduct was unlawful. The
termination of any proceedings by judgment, order, settlement, or
conviction or upon a plea of nolo contendere or its equivalent
shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which he or she reasonably
believed to be in, or not opposed to, the best interest of the
Trust, or, with respect to any criminal action or proceeding, had
reasonable cause to believe that his or her conduct was unlawful.
(B) In case any claim shall be made or action brought against
any person in respect of which indemnity may be sought against the
Trust, such indemnified person shall promptly notify the Trust in
writing setting forth the particulars of such claim or action. The
indemnified person shall be entitled to select and retain counsel
of his or her choice. The Trust shall be responsible for the
payment or immediate reimbursement for all reasonable fees and
expenses incurred in the defense of such claim or action.
SECTION 3.12. LEGAL TITLE TO TRUST PROPERTY. Title to all
Trust Property shall be vested in the Trust on behalf of the
Participants who shall be the beneficial owners. The Trustees
shall have full and complete power to cause legal title to any
Trust Property to be held, on behalf of the Participants, by or in
the name of any other entity or person as nominee, on such terms,
in such manner, and with such powers as the Trustees may determine;
provided that the interests of the Trust are adequately protected
as a consequence thereof.
SECTION 3.13. EXECUTION OF DOCUMENTS. All documents or
instruments which require the signature of the Trustees shall be
signed by the Chairman of the Board of Trustees (as Trustee) or by
such other person as designated by resolution of the Trustees.
SECTION 3.14. BY-LAWS. The Trustees may adopt and from time
to time, amend or repeal by-laws for the conduct of the business
of the Trust. The by-laws, among other things, may define the
duties of the respective officers, agents, employees and
representatives of the Trust.
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SECTION 3.15. BERL. The Trustees shall have full and
complete power to adopt and use a seal for the Trust, but unless
otherwise required by the Trustees, it shall not be necessary for
the seal to be placed on, and its absence shall not impair the
validity of any document, instrument or other paper executed and
delivered by or on behalf of the Trust.
SECTION 3.16. SURETY BONDS. No Trustee shall be obligated
to give any bond, surety or other security for the performance of
any of his or her duties as Trustee, except as otherwise determined
by the Board of Trustees if necessary to protect the Trust.
SECTION 3.17. RECITALS. Any written instrument duly creating
an obligation of the Trust shall be conclusively taken to have been
executed by the Trustees, a Trustee or an officer, employee or
agent of the Trust only in his or her capacity as a Trustee under
this Agreement or in his or her capacity as an officer, employee
or agent of the Trust. Any written instrument duly creating an
obligation of the Trust shall refer to this Agreement and contain
a recital to the effect that the obligations thereunder are not
personally binding upon, nor shall resort be had to the property
of, any of the Trustees, Participants, Treasurers, officers,
employees or agents of the Trust; that only the Trust Property or
a specific portion thereof shall be bound; and that such written
instrument may contain any similar recital which may be deemed
appropriate; provided that the omission of any recital pursuant
hereto shall not operate to impose personal liability on any of the
Trustees, Participants, Treasurers, officers, employees or agents
of the Trust..
SECTION 3.16. RELIANCE ON EXPERTS. Each Trustee and officer
of the Trust shall, in the performance of his or her duties, be
fully and completely justified and protected with regard to any act
or any failure to act resulting from reliance in good faith upon
the books of account or other official records of the Trust, upon
an opinion of Trust Counsel, or upon official reports made to the
Trust by any of its officers or employees or by the Investment
Advisor, Administrator, Custodian, accountants, appraisers or other
experts or consultants selected with reasonable care by the
Trustees or officers of the Trust.
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ARTICLE IV
POWERS OF THE TRUSTEES
SECTION 4.01. GENERAL. The Trustees shall have, without
other or further authorization, full, exclusive, and absolute
power, control and authority over the Trust Property and over the
affairs of the Trust to the same extent as if the Trustees were the
sole and absolute owners of the Trust Property in their own right,
and with such powers of delegation as may be permitted by this
Agreement. The Trustees may do and perform such acts and things
as in their sole judgment and discretion are necessary and proper
for conducting the affairs of the Trust or promoting the interests
of the Trust and the Participants in accordance with the objectives
of this Trust as set forth in this Agreement. The Trustees shall
invest the Trust Property with that degree of judgment and care,
under circumstances then prevailing, which persons of prudence,
discretion and intelligence exercise in the management of their own
affairs, not for speculation but for investment, considering the
probable safety of the capital, the need for liquidity, and the
probable income to derived from such investment. The enumeration
of any specific power or authority herein shall not be construed
as limiting the aforesaid general power or authority or any other
specific power or authority provided by law. The Trustees may
exercise any power authorized and granted to them by this
Agreement. Such powers of the Trustees may be exercised without
any further consent of the Participants, unless otherwise provided
herein, or the necessity of any order of, or resort to, any court.
Notwithstanding any other provision hereof, the Trustees are
authorized to establish more than one Investment Fund in which the
assets of the Trust are held and to establish separate investment
criteria for each Investment Fund.
SECTION 4.02. INVESTMENT FUNDS.
(A) The initial Investment Fund established pursuant to this
Agreement shall be known as the "Government Fund." Permitted
Investments for the Government Fund shall be as follows:
(1) Direct obligations of the United States of America
and securities fully and unconditionally guaranteed as to the
timely payment of principal and interest by the United States
of America, provided, that the full faith and credit of the
United States of America must be pledged to any such direct
obligation or guarantee;
(2) direct obligations and fully guaranteed certificates
of beneficial interest of the Export -Import Bank of the United
States, obligations of the Federal Home Loan Banks, debentures
of the Federal Housing Administration, guaranteed mortgage-
backed bonds and guaranteed pass-through obligations of the
15
Government National Mortgage Corporations, guaranteed Title
XI financing of the U.S. Maritime Administration, mortgage -
backed securities and obligations of the Federal National
Mortgage Association, participation certificates and
obligations of the Federal Home Loan Mortgage Corporation,
obligations of the Student Loan Marketing Association,
obligations of the Tennessee Valley Authority, and obligations
of the Resolution Funding Corporation;
(3) repurchase agreements collateralized by obligations
described in clause (1) with any registered broker/dealer
subject to the Securities Investors Protection Corporation
jurisdiction or any commercial bank, if such broker/dealer or
bank has an uninsured, unsecured and unguaranteed obligation
rated "prime -1" or 11A3" or better by Moody's Investors service
and "A-1" or "A-" or better by Standard and Poor's
Corporation, provided: (a) a master repurchase agreement or
specific written, repurchase agreement governs the
transaction; (b) the securities are held free and clear of any
lien by the Custodian or an independent third party acting
solely as agent for the Custodian, and such third party is (i)
a Federal Reserve Bank, or (ii) a bank which is a member of
the Federal Deposit Insurance Corporation and which has
combined capital, surplus and undivided profits of not less
than $25 million, and the Custodian shall have received
written confirmation from such third party that it holds such
securities, free and clear of any lien, as agent for the
Custodian; (c) a perfected first security interest under the
Uniform Commercial Code, or book entry procedures prescribed
at 31 C.F.R. 306.1 et seq. or 31 C.F.R. 350.0 et seq. in such
securities is created for the benefit of the Custodian; (d)
the repurchase agreement has a term of thirty days or less,
or the Custodian will value the collateral securities no less
frequently than daily and will liquidate the collateral
securities if any deficiency in the required collateral
percentage is not restored within two business days of such
valuation; and (e) the fair market value of the securities in
relation to the amount of the repurchase obligation, including
principal and interest, is equal to at least 102 percent; and
(4) money market mutual funds, the investments of which
are restricted to obligations described in clauses (1) through
(3), for which the Custodian or an affiliate of the Custodian
serves as custodian; provided however, that the investment of
Government Fund assets in a money market mutual fund shall not
exceed $250,000 unless such investment is made (a) on an
overnight basis pending investment on the next Business Day,
(b) in amounts required to pay the purchase price of an
investment previously purchased, the purchase price of which
has not been paid, or (c) at the express direction of the
Investment Advisor.
16
Participants shall be entitled to redeem funds from the
Government Fund upon provision of not less than 72 hours notice to
the Trust.
(B) Additional Investment Funds may be established by the
Board. The action creating any additional Investment Fund shall
specify the applicable Permitted Investments and redemption
requirements.
(C) The Trustees shall not modify the list of Permitted
Investments or the period of advance notice required for the
redemption of Shares for any Investment Fund without (1) providing
30 day0s written notice to each Participant holding Shares in such
Investment Fund and (2) permitting each Participant to redeem its
Shares in such Investment Fund.
SECTION 4.03. ACQUISITION AND DISPOSITION OF ASSETS.
(A) The Trustees shall have full and complete power to
establish and maintain Investment Funds for Participants. For such
consideration as they may deem proper and as may be required by
law, the Trustees shall be authorized to purchase, subscribe for,
invest in, sell, assign, transfer, exchange, distribute and
otherwise deal in or dispose of Permitted Investments and to
contract for and enter into agreements with respect to the purchase
and sale of Permitted Investments.
(B) The Trustees shall have full and complete power to sell,
exchange or otherwise dispose of any and all Trust Property free
and clear of. any and all trusts and restrictions, at public or
private sale, with or without advertisement, for cash or on terms,
and subject to such restrictions, stipulations, agreements and
reservations as they shall deem proper, and to execute and deliver
any deed, power, assignment, bill of sale or other instrument in
connection with the foregoing, including giving consents and making
contracts relating to Trust Property or its investment, use or
disposition.
SECTION 4.04. DELEGATION. The Trustees shall have full and
complete power (consistent with their continuing exclusive
authority over the management and administration of the Trust and
their duties and obligations as Trustees) to delegate from time to
time to one or more Trustees (who may be designated as a Committee
of the Trustees) or to officers, employees or agents of the Trust
(including the Investment Advisor, the Administrator, the Custodian
and the Trust Counsel) such authorities, the performance of such
acts and things, the execution of such instruments either in the
name. of the Trust or as their attorney or attorneys, and such other
responsibilities as the Trustees may from time to time deem
expedient and appropriate in the furtherance of the business
affairs and purposes of the Trust. The provisions of this Section
17
4.04 shall be deemed to permit the delegation of administrative,
ministerial and operational matters, but shall not be deemed to
permit the delegation of the authority to determine policies and
procedures of the Trust.
SECTION 4.05. COLLECTION. The Trustees shall have full and
complete power: (A) to collect, sue for, receive and receipt for
all sums of money or other property due to the Trust; (B) to
consent to extensions of time for payment or the renewal of any
securities, investments or obligations; (C) to engage or intervene
in, prosecute, defend, compromise, abandon, or adjust by
arbitration or otherwise any actions, suits, proceedings, disputes,
claims, demands or things relating to the Trust Property; (D) to
foreclose any collateral, security or instrument securing any
investment, note, bill, bond, obligation or contract by virtue for
which any sums of money are owed to the Trust; (E) to exercise any
power of sale held by them and to convey good title thereunder free
of any and all trusts, and in connection with any such foreclosure
or sale, to purchase or otherwise acquire title to any property;
(F) to be parties to any reorganization and to transfer to and
deposit with any corporation, committee, voting trustee or other
person any securities, investments, or obligations of any person
which form a part of the Trust Property, for the purpose of such
reorganization or otherwise; (G) to participate in any arrangement
for enforcing or protecting the interests of the Trustees as the
owners or holders of such securities, investments or obligations
and to pay any assessment levied in connection with such
reorganization or arrangement; (H) to extend the time (with or
without security) for payment or delivery of any debts or property
and to execute and enter into releases, agreements, and other
instruments; and (I) to pay or satisfy any debts or claims upon
any evidence that the Trustees shall deem sufficient.
SECTION 4.06. PAYMENT OF EXPENSES. The Trustees shall have
full and complete power (A) to incur and pay Operating Expenses,
Development Expenses and Education Expenses and (B) to reimburse
others for the payment thereof. The Trustees shall fix the
compensation, if any, of all officers and employees of the Trust.
The Trustees shall not be paid compensation for their general
services as Trustees hereunder but may be reimbursed for their
authorized travel and other out-of-pocket expenses reasonably
incurred on behalf of the Trust. Except as set forth in Section
7.08 hereof relative to any expenses associated with defective
redemption requests, Operating Expenses, Development Expenses and
Education Expenses shall be paid from earnings of the Trust.
SECTION 4.07. BORROWING AND INDEBTEDNESS. The Trustees shall
not have the power to borrow money or incur indebtedness whether
or not the proceeds thereof are intended to be used to purchase
Permitted Investments, except as a temporary measure to facilitate
withdrawal requests which might otherwise require unscheduled
dispositions of portfolio investments and only as and to the extent
18
permitted by law. No such indebtedness shall have a maturity later
than that necessary to avoid the unscheduled disposition of
portfolio investments.
SECTION 4.08. DEPOSITS. The Trustees shall have full and
complete power to deposit, in accordance with the law, any monies
or funds included in the Trust Property and intended to be used for
the payment of expenses of the Trust, with one or more entities in
the State which are eligible under the laws of the State to be a
depository for public funds, whether or not such deposits will draw
interest. Such deposits are to be subject to withdrawal in such
manner as the Trustees may determine, and the Trustees shall have
no responsibility for any loss which may occur by reason of the
failure thereof. With respect'to such deposit, each such entity
shall comply with all applicable requirements of law.
SECTION 4.09. VALUATION. The Trustees shall have full and
complete power to determine conclusively, in good faith, the value
of any Trust Property and to revalue the Trust Property as more
specifically set forth in Article IX herein.
SECTION 4.10. FISCAL YEAR AND CRART OF ACCOUNTS. The
Trustees shall have full and complete power to determine the fiscal
year of the Trust and the method or form in which its accounts
shall be kept, and from time to time to change the fiscal year or
method or form of accounts. Unless otherwise determined by the
Trustees, the fiscal year of the Trust shall commence on October 1
of each year and terminate on September 30 of the following
calendar year.
SECTION 4.11. CONCERNING THE TRUST AND AFFILIATES.. The Trust
shall not enter into separate transactions with or make investments
in any Affiliate of the Trust or of any Trustee, Investment Advisor
(except as otherwise permitted by written agreement),
Administrator, officer, employee or agent of the Trust; provided
that the Trust may purchase and sell Permitted Investments from and
to the Custodian or and Affiliate of the Custodian.
SECTION 4.12. INVESTMENT POLICY. The Trustees shall use
their best efforts to obtain, through the Investment Advisor or
other qualified persons, a continuing and suitable general
investment policy for each Investment Fund, consistent with the
investment objectives of the Trust set forth herein. The Trustees
shall be responsible for reviewing and approving or rejecting all
investment policies presented by the Investment Advisor or such
other persons.
SECTION 4.13. AGENTS AND EMPLOYEES. The Trustees shall have
full and complete power to appoint, employ, retain or contract with
any person of suitable qualification (including any corporation,
partnership, trust or other entity) as the Trustees may deem
necessary or desirable for the transaction of the affairs of the
19
Trust, including any person or persons who, under the supervision
of the Trustees, may among other things: (A) serve as the
Investment Advisor and consultant in connection with policy
'decisions made by the Trustees; (B) serve as the Administrator; (C)
serve as Trust Counsel; (D) furnish reports to the Trustees and
provide research, economic and statistical data in connection with
the Trust's investments; (E) act as consultants, accountants,
technical advisors, brokers, corporate fiduciaries, escrow agents,
depositaries, custodians, agents for collection, insurers or
insurance agents, registrars for Shares, or in any other capacity
deemed by the Trustees to be necessary or desirable; (F) act as
attorney-in-fact or agent in the purchase, sale or other
disposition of investments and in the handling, prosecution or
other enforcement of any lien or security securing investments; and
(G) assist in the performance of such ministerial functions
necessary in the management of the Trust as may be agreed upon with
the Trustees.
SECTION 4.14. INSURANCE. The Trustees shall have full and
complete power to purchase and pay for insurance policies or bonds
insuring the Trust and the Trustees, officers and direct employees
of the Trust individually against all claims and liabilities of
every nature arising by reason of holding or having held any such
office or position or by reason of any action alleged to have been
taken or omitted by the Trust or any such person as Trustee,
officer or employee, including any action taken or omitted that may
be determined to constitute negligence, whether or not the Trust
would have the power to indemnify such person against such
liability.
SECTION 4.15. ANNUAL REPORTS. The Trustees, through the
Administrator, shall cause to be prepared annual financial reports
of the details of the operations of the Trust. Such Annual Report
shall include: (A) a report of financial conditions containing a
statement of assets and liabilities and statements of operations
and of changes in net assets of the Trust prepared in conformity
with generally accepted accounting principles; (B) an opinion of
an independent certified public accountant on such financial
statements based on an examination of the books and records of the
Trust made in accordance with generally accepted auditing
standards; and (C) sufficient information to establish compliance
with the investment policy established pursuant to this Agreement.
A signed copy of such report and opinion shall be filed with the
Trustees within 60 days after the close of the period covered
thereby. Copies of such reports shall be mailed to all
Participants. In addition, the Trustees shall furnish to the
Participants a quarterly report containing an unaudited statement
of assets and liabilities for such accounting period and statements
of operations and of changes in net assets of the Trust for the
period from the beginning of the then current Fiscal Year to the
end of such current accounting period.
20
SECTION 4. 16. PURSUIT OF REMEDIES. Notwithstanding any
provision -in this Agreement, when the Trustees deem that there is
a significant risk that an obligor to the Trust may default or is
in default under the terms of any obligation to the Trust, the
Trustees shall have full and complete power to pursue any remedies
permitted by law which, in their sole judgment, are in the
interests of the Trust. The Trustees shall have full and complete
power to enter into any investment, settlement, compromise,
commitment or obligation on behalf of the Trust resulting from the
pursuit of such remedies as are necessary or desirable to dispose
of property acquired as a result thereof.
SECTION 4.17. INFORMATION STATEMENT. The Trustees shall have
full and complete power to prepare, publish and distribute an
Information Statement regarding the Trust and to amend or
supplement the same from time to time.
SECTION 4.18. TAXES. The Trustees shall have full and
complete power: (A) to pay all taxes or assessments, of whatever
kind or nature, validly and lawfully imposed upon or against the
Trust or the Trustees in connection with the Trust Property, or
upon or against the Trust Property or income or any part thereof;
(B) to settle and compromise disputed tax liabilities; and (C) for
the foregoing purposes to make such returns and do all such other
acts and things as may be deemed by the Trustees to be necessary
or desirable.
SECTION 4.19. RIGHTS AS HOLDERS OF TRUST PROPERTY. The
Trustees shall have full and complete power to exercise on behalf
of the Participants all of the rights, powers and privileges
pertaining to the ownership of all or any Permitted Investments or
other Trust Property to the same extent that any individual might
and, without limiting the generality of the foregoing, to vote or
give any consent, request or notice, or waive any notice either in
person or by proxy or power of attorney, with or without the power
of substitution, to one or more persons, whose proxies and powers
of attorney may be for meetings or actions generally, or for any
particular meeting or action, and may include the exercise of
discretionary powers.
SECTION 4.20. EDUCATION AND TECHNICAL ASSISTANCE. Pursuant
to Section 9.04 hereof, the Trustees shall retain an amount equal
to 0.6666 basis points per month on the total Trust Property to be
used for education and technical assistance. The Trustees may
contract only with the County Association and the Clerk's
Association for utilization of these funds, which shall be
restricted to programs related to local government education and
training.
SECTION 4.21. FURTHER POWERS. To the extent permitted by
law, the Trustees shall have full and complete power to take all
actions, do all matters and things, and execute all instruments as
21
they doom necessary, proper or desirable in order to carry out,
promote or advance the interests and purposes of the Trust,
although such actions, matters or things are not herein
•specifically mentioned. Any determination as to what is in the
best interest of the Trust made by the Trustees in good faith shall
be conclusive. In construing the provisions of this Agreement, the
presumption shall be in favor of a grant of power to the Trustees.
The Trustees shall not be required to obtain any further consent
of the Participants, unless otherwise provided herein, or any court
order to deal with the Trust Property.
22
ARTICLE V
INVESTMENT ADVISOR, ADMINISTRATOR AND TRUST COUNSEL
SECTION 5.01. APPOINTMENT. The Trustees are responsible for
the general investment policy and program of the Trust and for the
general supervision and administration of the business and affairs
of the Trust conducted by the officers, agents, employees,
investment advisors, administrators, distributors or independent
contractors of the Trust, consistent with the investment policy
established in this Agreement. However, the Trustees are not
required personally to conduct all of the routine business of the
Trust and, consistent with their responsibility as stated herein,
the Trustees may appoint, employ or contract on behalf of the Trust
with an Investment Advisor, an Administrator and a Trust Counsel
and may grant or delegate such authority, to the Investment Advisor,
the Administrator, the Trust Counsel or to any other person as the
Trustees may, in their sole discretion, deem to be necessary or
desirable for the efficient management of the Trust.
SECTION 5.02. DUTIES OF THE INVESTMENT ADVISOR. The duties
of the Investment Advisor shall be those set forth in the
Investment Advisory Agreement to be entered into between the
Trustees, on behalf of the Trust, and the Investment Advisor. such
duties may be modified by the Trustees, from time to time, by the
amendment of the Investment Advisory Agreement. The Trustees may
authorize the Investment Advisor to effect purchases, sales or
exchange of Trust Property or may authorize any officer, employee,
agent or Trustee to effect such purchases, sales or exchanges
pursuant to recommendations of the Investment Advisor, all without
further action by the Trustees subject to the Trustee's right of
disapproval. Purchases, sales and exchanges of Trust Property
shall be deemed to be authorized by all the Trustees in accordance
with the provisions of this Agreement unless the Investment Advisor
is notified in writing by the Trustees to the contrary. The
Investment Advisory Agreement may authorize the Investment Advisor
to employ other persons to assist it in the performance of its
duties. The Investment Advisor shall be prohibited from accepting
direct or indirect monetary or in-kind compensation from any person
other than the Trust in connection with the services provided under
the Investment Advisory Agreement, unless such compensation is
immediately paid or transferred to the Trust.
SECTION 5.03. DUTIES OF THE ADMINISTRATOR. The duties of the
Administrator shall be those set forth in a agreement between the
Administrator and the Trustees, on behalf of the Trust and shall
include supervision of all investment activity, provision of
accounting services, and performance of such other duties and
responsibilities as may be from time to time declared by the
Trustees.
23
SECTION S. 04. DUTIES OF THE TRUST COUNSEL. The duties of the
Trust Counsel shall be: (A) to construe the terms and provisions
of this Agreement and advise the Board with respect to its powers
and duties thereunder; (B) review and approve the ordinances and
joinder agreements of Public Entities desiring to become
Participants; (C) attend all meetings of the Board and provide
legal advise and consultation as requested; and (D) bring,
prosecute, appear in, or defend, all on behalf of the Trust and in
the name of the Trust any suit or administrative proceeding, for
the enforcement of or arising out of or with respect to this
Agreement.
SECTION 5.05. SUCCESSORS. If, at any time, the position of
Investment Advisor, Administrator or Trust Counsel shall become
f vacant -for any reason, the Trustees may appoint, employ or contract
with a successor. Nothing herein shall be construed to prohibit
the Trust from performing the duties of the Administrator through
its own direct employees.
24
SECTION 6.01. QUALIFICATIONS. The Trustees, on behalf of the
Trust, shall employ a bank or trust company organized under the
laws of the United States of America as Custodian with authority
as its agent, but subject to such restrictions, limitations and
other requirements, if any, as may be established by the Trustees
to•perform to duties set forth in the Custodian Agreement to be
entered into between the Trust and the Custodian. Such Custodian
shall be a qualified "depository" as defined by Chapter -4537 280
Florida Statutes, and shall invest all Trust Property in accordance
therewith and in accordance with the objectives of this Trust.
SECTION 6.02. SUCCESSORS. In the event that, at any time,
the Custodian shall resign or shall be terminated pursuant to the
provisions of the Custodian Agreement, the Trustees shall appoint
a successor thereto.
SECTION 6.03. PROHIBITED TRANSACTIONS. With respect to
transactions involving Trust Property, the Custodian shall act
strictly as agent for the Trust. The Trustees shall not purchase
Permitted Investments from the Custodian or sell Permitted
Investments to the Custodian.
25
ARTICLE VII
INTEREST OF PARTICIPANTS
SECTION 7.01. GENERAL. The beneficial interest of the
Participants in any Investment Fund and the earnings thereon shall,
for convenience of reference, be divided into Shares which shall
be used as units to measure the proportionate allocation to the
respective Participants. The number of Shares that may be used to
measure and represent the proportionate allocation of beneficial
interest among the Participants in any Investment Fund is
unlimited. All Shares in an Investment Fund shall be of one class
representing equal distribution; liquidation and other rights. The
beneficial interest hereunder measured by the Shares shall not
entitle a Participant to preference, preemptive, appraisal,
conversion or exchange rights of any kind with respect to the Trust
or the Trust Property. Title to the Trust Property of every
description and the right to conduct all affairs of the Trust are
vested in the Trustees on behalf, and for the beneficial interest
of, the Participants. The Participants shall have no interest
therein other than the beneficial interest conferred hereby and
measured by their Shares, and they shall have no right to call for
any partition or division of any property, profits, rights or
interests of the Trust.
SECTION 7.02. INVESTMENTS. Upon compliance with the
procedures established by the Administrator and the Custodian, a
Public Entity who has become a Participant in accordance with
Section 2.03 hereof shall be entitled to invest in any Investment
Fund. Participants may invest in more than one Investment Fund and
may establish more than one account within a single Investment
Fund. The Participant shall notify the Trust of its intention to
make an investment in an Investment Fund not less than one Business
Day prior to the Transaction Execution Date. On the Transaction
Execution Date, Shares shall be allocated to the investing
Participant by dividing the amount invested by the Share Value for
the Investment Fund as of the Transaction Valuation Date.
Investments may be made in fractional Shares.
SECTION 7.03. EVIDENCE OF PARTICIPANT SHARES. Evidence of
the number of each Participant's Shares shall be reflected in the
Share Register for each Investment Fund maintained by or on behalf
of the Trust pursuant to Section 8.01 hereof. The Trust shall not
issue certificates as evidence of Shares held.
SECTION 7.04. REDEMPTIONS. Payments by the Trust to
Participants and the reduction of Shares resulting therefrom are,
for convenience, referred to in this Agreement as "redemptions".
any and all allocated Shares may be redeemed at the option of the
Participant whose beneficial interest hereunder is measured by such
Shares, upon and subject to the terms, conditions and advance
26
notice requirements promulgated by the Trustees upon the
establishment of each Investment Fund. The Trust shall, upon
application of any Participant and in accordance with the
redemption requirements established by the Trustees, redeem Shares
from any Investment Fund. The Participant shall notify the Trust
of its intention to make a redemption from an Investment Fund in
accordance with the redemption requirements established by the
Trustees, but in no event less than one Business Day prior to the
Transaction Execution Date. on the Transaction Execution Date,
Shares shall be redeemed at the Share Value for the Investment Fund
as of the Transaction Valuation Date. The procedures for effecting
redemption shall be as adopted by the Trustees. The Trustees may
establish (A) penalties for early redemption of Shares; (B)
procedures for resolving other contingencies which may jeopardize
the earnings potential of the Trust; and (C) procedures for the
prompt payment of the principal of any account at any time.
Redemptions may be made in fractional Shares.
SECTION 7.05. SUSPENSION OF REDEMPTION OR PAYMENT. Each
Participant, by its adoption of this Agreement, agrees that the
Trustees may, without the necessity of a formal meeting of the
Trustees, temporarily suspend the right of redemption or postpone
the date of payment for redeemed Shares for the whole or any part
of any period (A) during which there shall have occurred any state
of war, national emergency, banking moratorium or suspension of
payments by banks in the State or any general suspension of
payments by banks in the State or any general suspension of trading
or limitation of prices on the New York or American Stock Exchange
(other than customary weekend and holiday closing); or (B) during
which any situation exists as a result of which disposal by the
Trust of Trust Property is not reasonably practicable because of
the substantial losses which might be incurred or if it is not
reasonably practicable for the Trust at any time to determine
fairly the Share Value. Such suspension or postponement shall not
alter or affect a Participant's beneficial interest hereunder as
measured by its Shares or the accrued interest and earnings
thereon. Such suspension or payment shall take effect at such time
as the Trustees shall specify but not later than the close of
business on the Business Day next following the declaration of
suspension, and thereafter there shall be no right of redemption
or payment until the Trustees shall declare the suspension or
postponement at an end, except that the suspension or postponement
shall terminate in any event on the first day on which the period
specified in the clauses (A) or (B) above shall have expires (as
to which the determination of the Trustees shall be conclusive).
In the case of a suspension of the right of redemption or a
postponement of payment for redeemed Shares, a Participant may
either withdraw its request for redemption or receive payment based
on the Share Value existing after the termination of the
suspension.
27
SECTION 7.06. KINIKUK XNVSSTKENT. Initially, and until
changed by action of the Trustees, there shall be a five thousand
dollar ($5,000.00) minimum total investment for each Participant.
•If the Trustees create a minimum total investment in an amount
greater than the investment of any Participant at the time that
such change becomes effective, the investment of such Participant
shall not be redeemed without such Participant's consent.
SECTION 7.07. MINIMUM REDEMPTION. There shall be a minimum
of one share which may be redeemed at any one time at the option
of a Participant.
SECTION 7.08. DEFECTIVE REDEMPTION REQUESTS. If a
Participant submits a request* for the redemption of a greater
number of Shares than are then allocated to such Participant, such
requests shall not be honored. Each Participant, by its adoption
of this Agreement, agrees that the Trustees shall have full and
complete power to redeeu an amount of the Shares allocated to such
Participant at a redemption price determined in accordance with
Section 7.04 hereof sufficient to reimburse the Trust for any fees,
expenses, costs or penalties actually incurred by the Trust as a
result of such defective redemption request.
28
ARTICLE VIII
RECORD OF SHARES
SECTION 8.01. SHARE REGISTER. A Share Register for each
Investment Fund shall be kept by or on behalf of the Trustees,
under the direction of the Trustees, and shall contain (A) the
names and addresses of the Participants, (B) the number of Shares
representing their respective beneficial interests hereunder, and
(C) a record of all allocations and redemptions thereof. Such
Share Registers shall be conclusive as to the identity of the
Participants to which the Shares are allocated. Only Participants
whose allocation of Shares •is'recorded on such Share Registers
shall be entitled to receive distributions with respect to Shares
or otherwise to exercise or enjoy the rights and benefits related
to the beneficial interest hereunder represented by the Shares.
No Participant shall be entitled to receive any distribution, nor
to have notices given to it as herein provided, until it has given
its appropriate address to such officer or agent of the Trust as
designated to keep the Share Registers.
SECTION 8.02. REGISTRAR. The Trustees shall have full and
complete power to employ a registrar. Unless otherwise determined
by the Trustees, the Share Registers shall be kept by the
Administrator. The registrar shall record the original allocations
of Shares in the Share Registers and shall perform the duties
usually performed by registrars of certificates and shares of stock
in a corporation except as such duties may be modified by the
Trustees from.time to time.
SECTION 8.03. OWNER OF RECORD. No person becoming entitled
to any Shares as a consequence of the merger, reorganization,
consolidation, bankruptcy or insolvency of any Participant or
otherwise by operation of law shall be recorded as the Participant
to which such Shares are allocated, unless such person is an entity
qualified to participate in the Trust, in which event such person
shall be substituted for the previous person upon proper
application. Such person shall become entitled to the redemption
value of such Shares. Such qualified person may then be designated
as the Participant of record to which such Shares are allocated.
Persons not qualified as Participants who become entitled to Shares
and do not promptly request redemption thereof may be requested by
the Trustees to present proof of entitlement and shall be required
to redeem such Shares. The Trust shall not be bound by any notice
of merger, reorganization, consolidation, bankruptcy, insolvency,
or other such event, unless the Shares are transferred in
accordance with the provisions of the Trust.
SECTION 8.04. NO TRANSFER OF SHARES. Except as provided for
in Section 8.03 hereof, the beneficial interests measured by the
Shares shall not be transferable, in whole or in part, other than
29
to the Trust itself for purposes of redemption; provided that
Shares may be redeemed from one Participant's account and the
proceeds deposited directly into another Participant's account upon
•instructions from the authorized representatives of the respective
Participants.
SECTION 8.05. LIMITATION OF FIDUCIARY RESPONSIBILITY. The
Trustees shall not, nor shall the Participants or any officer,
registrar or other agent of the Trust, be bound to determine the
existence of any trust, express, implied, or constructive, or of
any charge, pledge or equity to which any of. the Shares or any
interest therein are subject, or to ascertain or inquire whether
any redemption of any such Shares by any Participant or its
representatives is authorized 'by such trust, charge, pledge or
equity, or to recognize any person as having any interest therein,
except the Participant recorded as the Participant to which such
Shares are allocated. The receipt of monies by the Participant in
whose name any Share is recorded or by the duly authorized agent
of such Participant shall be a sufficient discharge for all monies
payable or deliverable in respect of such Shares and from all
responsibility to see to the proper application thereof.
SECTION 8.06. NOTICES. Any and all notices to which any
Participant hereunder may be entitled and any and all
communications shall be deemed duly served or given if mailed,
postage prepaid, addressed to such Participant of record at its
address as recorded on the Share Register.
30
ARTICLE IS
VALUATION OF INVESTMENT FUNDS
11
SECTION 9.01. ASSET VALUATION.
(A) As of the close of business on each Business Day, the
investments of each Investment Fund shall be valued by the
Trustees, using such consistent method or basis of valuation and
based upon such sources of information as will, in the Trustees'
opinion, result in the fair and equitable valuation of the
Investment Fund and its assets. The Trustees, insofar as
practicable, shall utilize the following basic guidelines:
(1) The value of each security listed on generally
recognized securities exchanges shall be the last sales price
as reported by such exchanges on the date of valuation. Where
a security is traded on more than one securities exchange, the
Trustees may designate that one exchange will be used as the
basis of valuations. If no sale has been so reported, the
average of the bid and asked price for the date of valuation
shall be used, unless in the Trustees' opinion, use of the
last reported sale or the last reported bid as reported by
such exchanges, whichever is more recent, would more truly
reflect the value of such security. If neither a sale nor a
bid and asked price has been reported for the date of
valuation, then the most recent sales price shall be used.
(2). Non -listed securities shall be valued by taking the
most recent published bid as of the date of valuation obtained
with the Trustees' approval, from one or more reputable
brokers, dealers, investment bankers or pricing or quotation
services that regularly deal in or that determine and quote
the value of the security being valued or by reference to a
valuation supplied by a generally accepted pricing or
quotation service. Alternatively, if the Trustees determine
that the average of the reported bid and asked prices, if such
are reported for the date of valuation, would more truly
reflect the value of such security, then such average shall
be used. Should no bid and asked prices have been reported
for the date of valuation, the last reported sale value shall
be used unless, in the Trustees' judgment, the most recent bid
price would more truly reflect the value of such security.
(3) The value of marketable United States Government or
government agency obligations shall be the most recent
published bid as of the date of valuation obtained from one
or more recognized dealers regularly dealing in such
securities.
31
(4) The value of any other investment shall be the
market value thereof as determined by the Trustees as of the
date of valuation. In determining such market value, the
Trustees may obtain and consider: quotations furnished by
reputable sources, such as pricing or quotation services,
security dealers, brokers or investment bankers; values of
comparable property; appraisals; or such other information as
the Trustees deem pertinent.
(5) An investment purchased, the purchase price of which
has not been paid, shall be included for valuation purposes
as a security held, and the cash or any cash equivalents shall
be adjusted by deducting the purchase price, including
brokerst commissions and other expenses. Brokers' commissions
and other expenses which may be incurred on future sales shall
not be considered in valuing an Investment Fund.
(6) If, in the opinion of the Trustees, the valuations
obtained by the foregoing methods do not fairly indicate the
actual market value of an investment, or no reliable data is
available, the Trustees shall obtain and use quotations
furnished by one or more reputable brokers or investment
bankers or, as a basis for such valuation, such other
pertinent information, or such other method of valuation, as
may, in their judgment, be necessary to determine the value
as of the date of valuation. For the purposes of this Section
9.01(B)(6), information reported (a) in newspapers of general
circulation, or in New York City, (b) in standard financial
publications or periodicals, (c) in the records of any
recognized security exchange, (d) statistical or valuation
services, or (e) any one or more of such sources may be
selected by the Trustees, noted in the records of the Trust,
and shall be accepted as evidence thereof.
(B) Valuation of the investments in any Investment Fund may
be delegated by the Trustees to the Investment Advisor, the
Administrator, the Custodian or such other person as the Trustees
may designate by resolution or agreement.
SECTION 9.02. COMPUTATION OF NET ASSET VALUE.
(A) To the aggregate value of investments determined in the
manner required by Section 9.01, there shall be added (1) any cash
or cash equivalents, adjusted as required by Section 9.01(A)(5) and
(2) any other amounts properly allocable to the Investment Fund.
From the total so obtained there shall be deducted all charges,
reserves and liabilities due, accrued or anticipated, as described
in Section 9.04, which are properly chargeable to the Investment
Fund. The net amount remaining shall be deemed to be the Net Asset
Value of the Investment Fund as of the date of valuation.
32
(B) Computation of the Net Asset Value of any Investment Fund
may be delegated by the Trustees to the Investment Advisor, the
Administrator, the Custodian or such other person as the Trustees
may designate by resolution or agreement.
SECTION 9.03. COMPUTATION OF SHARE VALDE.
(A) At the inception of any Investment Fund, the Share Value
shall be deemed to be ten dollars ($10.00), unless the Trustees
shall, in the records of the Trust, specify a different value
therefor. The Share Value on any date of valuation shall be
computed by dividing the Net Asset Value of the Investment Fund by
the number of Shares into which the Investment Fund is then
divided; provided however, that'fractions of a cent per Share may
be omitted.
(B) Computation of the Share Value of any Investment Fund may
be delegated by the Trustees to the Investment Advisor, the
Administrator, the Custodian or such other person as the Trustees
may designate by resolution or agreement.
SECTION 9.04. EXPENSES, RETAINED EARNINGS AND RESERVES. The
Trustees shall retain first from earnings and profits of the each
Investment Fund and, to the extent those funds are not sufficient,
from the assets of each Investment Fund, such amount as they may
deem necessary (A) to pay any debts of the Trust properly allocable
to such Investment Fund and (B) to pay that portion of the
Operating Expenses of the Trust properly allocable to such
Investment Fund. In addition, the Trustees shall retain for the
payment of Development Expenses and Education Expenses an amount
equal to .6666 basis points per month of the daily average for each
Investment Fund during such month of (1) the value of investments,
determined in the manner required by Section 9.01, (2) any cash or
cash equivalents, adjusted as required by Section 9.01(A)(5) and
(3) any other amounts properly allocable to the Investment Fund.
The Trustees shall also have the power to establish from earnings
and profits such reasonable reserves as they believe may be
required to protect the Trust and the Participants against
contingent liabilities.
33
ARTICLE x
AMENDMENT OR TERMINATION OF TRUST; DURATION OF TRUST
SECTION 10.01. AMENDMENTS. The provisions of this Agreement
may be amended or altered at any meeting of the Board of Trustees
or pursuant to any vote of the Board called for that purpose. No
such amendment shall become effective prior to (1) providing 30
day's written notice to each Participant holding Shares in any
Investment Fund and (2) permitting each Participant to redeem its
Shares in such Investment Fund.
SECTION 10.02. TERMINATION.
(A) The Trust or any Investment Fund may be terminated at any
meeting of the Board of Trustees. The Trust shall also be
terminated if either the County Association or the Clerks
Association (1) notifies the Trust in writing that it will no
longer appoint Trustees or (2) fails to appoint a replacement
Trustee within 90 days after notification of any vacancy.
(B) The termination of the Trust or any Investment Fund shall
not (1) change any rights with respect to any allocated Shares of
a terminated Investment Fund by reducing the amount payable thereon
upon liquidation, except with the vote or written consent of 100
percent of the Participants in such Investment Fund; (2) change the
limitations on personal liability of the Participants and the
Trustees; and (3) change the prohibition of assessments against
Participants.
(C) Upon the termination of the Trust: (1) the Trust shall
carry on no business, except for the purpose of winding up its
affairs; (2) the Trustees shall proceed to wind up the affairs of
the Trust, and pursuant thereto all of the powers of the Trustees
under this Agreement shall continue until the affairs of the Trust
shall have been concluded, including but not limited to the power
to fulfill or discharge the contracts of the Trust, to collect
Trust assets, sell, convey, assign, exchange, transfer or otherwise
dispose of all or any part of the remaining Trust Property to one
or more persons at public or private sale for consideration which
may consist in whole or in part of cash, securities or other
property of any kind, to discharge or pay Trust liabilities, and
to do all other acts appropriate to liquidate Trust affairs; and
(3) after paying or adequately providing for the payment of all
liabilities, and upon receipt of such releases, indemnities and
refunding agreement as they deem necessary for the Trust's
protection, the Trustees may distribute the remaining Trust
Property, in cash or in kind or partly in each, among the
Participants according to their respective proportionate allocation
of Shares.
34
(D) Upon termination of the Trust and distribution to the
Participants as herein provided, a majority of the Trustees shall ..
execute and lodge among the records of the Trust an instrument in
writing setting forth the fact of such termination, and the
Trustees shall thereupon be discharged from all further liabilities
and duties hereunder, and the right, title and interest of all
Participants shall cease and be cancelled and discharged.
88CTION 10.03. DURATION. The Trust shall continue in
existence in perpetuity, subject in all respects to the provisions
of this Article X.
35
ARTICLE SI
MISCELLANEOUS
SECTION 11.01. GOVERNING LAW. This Agreement is executed by
the Initial Participants and delivered in the State and with
reference to the laws thereof, and the rights of all parties and
the validity, construction and effect of every provision hereof
shall be subject to and construed according to the laws of the
State.
SECTION 11.02. COUNTERPARTS. This Agreement may be executed
in several counterparts, each df which when so executed shall be
deemed to be an original, and such counterparts shall constitute
but one and the same instrument, which shall be sufficiently
evidenced by any such original counterpart.
SECTION 11.03. RELIANCE BY THIRD PARTIES. Any certificate by
an individual who, according to the records of the Trust, or of any
official or public body or office in which this Agreement may be
recorded, appears to be a Trustee hereunder or the Chairman of the
Trust, certifying to: (A) the number or identity of Trustees or
Participants; (B) the due authorization of the execution of any
instrument or writing; (C) the form of any vote passed at a meeting
of the Trustees; (D) the fact that the number of Trustees or
Participants present at any meeting or executing any written
instrument satisfies the requirements of this Agreement; (E) the
form of any by-laws adopted by or the identity of any officers
elected by the Trustees; or (F) existence of any fact or facts
which in any.manner relate to the affairs of the Trust, shall be
conclusive evidence as to the matters so certified in favor of any
person dealing with the Trustees or any of them or the Trust and
the successors of such person.
SECTION 11.04. PROVISIONS IN CONFLICT WITH LAW. The
provisions of this Agreement are severable. If the Trustees shall
determine, with the advise of its counsel, that any one or more of
such provisions (the "conflicting provisions") are in conflict with
applicable federal or State laws, the conflicting provisions shall
be deemed never to have constituted a part of this Agreement;
provided that such determination by the Trustees shall not affect
or impair any of the remaining provisions of this Agreement or
render invalid or improper any action taken or omitted (including
but not limited to the election of Trustees) prior to such
determination.
36
IN RITNE8S WKBR80F, Robert L. Anderson has executed and
delivered this Agreement and Declaration of Trust as of the day and
year.first above written.
Witnesses:
STATE OF FLORIDA )
)
COUNTY OF SARASOTA )
V 0
, 0, �-0-0 " -7, V0
o)fb ert . Anderson
Before me personally appeared Robert L. Anderson, to me well
known and known to me to be the person described in and who
executed the foregoing instrument, and acknowledged to and before
me, that he executed said instrument for the purposes therein
expressed.
WITNESS my hand and official seal, this 9th day of December ,
A.D., 1991.
not4ryoPublic
State of Florida
My commission expires Jan. 24. 1991 YcoPV,-,LIC E;;;;;;;;: .„),..
SONOEO THRU WTFRT {.0 O LSO UNJ6 H..,H
37
ZN WITNES8 WHEREOF, Scott I. Cowan has executed and delivered
this Agreement and Declaration of Trust as of the day and year
first above written.
STATE OF )
)
COUNTY OF )
Sco I. tovian
Before me personally appeared Scott I. Cowan, to me well known
and known to me to be the person described in and who executed the
foregoing instrument, and acknowledged to and before me that he
executed said instrument for the purposes therein express. ,
WITNESS my hand and official seal, this ^ )�Ad�y►
A.D., 1991. / i/ /
Notary P
State of
tliy commission expires � � I -1
38
T x
IN WITNESS WHEREOF, Martha O. Haynie has executed and
"delivered this Agreement and Declaration of Trust as of the day and
year first above written.
Witnesses:
Martha O. Haynie
STATE OF
COUNTY OF
Before me personally appeared Martha O. Haynie, to me well
known and known to me to be the person described in and who
executed the foregoing instrument, and acknowledged to and before
me that she executed said instrument for the purposes therein
expressed.
WITNESS my hand and official seal, this TN day of 0 E C
A.D., 1991.
My commission expires
Nwary Palk :tit, 03
�p Canrdca:an Ee,Pi;rs °i;.;t. ; d, 1,,,.;4
�and.d tAw Troy Pain . Inwr.,,y+ laz.
39
�� oma, ' �fl�lgl�-Q•r.�
Notary Public
State of F Oki1614
tN WXTNESS WHEREOF, Karen Nicolai has executed and delivered
this Agreement and Declaration of Trust as of the day and year
first above written.
Witnesses:
r
Karen Nicolai
STATE OF Florida
COUNTY OF Hernando
Before me personally appeared Karen Nicolai, to me well known
and known to me to be the person described in and who executed the
foregoing instrument, and acknowledged to and before me that she
executed said instrument for the purposes therein expressed.
WITNESS my hand and official seal, this 10th day of December,
A.D., 1991.
Notary Public ;
State of......._
NOTARY PUBLIC STATE OF FLORIDA
My COmm1SSlOri expires MY COMMISSION EMP.JUNE 11.1993 J
8
QMU0-TNRU fiN 2AL-JAS. UND.
40
IN WXTNE88 WHEREOF, Terry R. Wood has executed and delivered
this Agreement and Declaration of Trust as of the day and year
first above written.
Witnesses:
•r _
STATE OF
COUNTYJ
Te ry R. Wood
Before me personally appeared Terry R. Wood, to me well known
and known to me to be the person described in and who executed the
foregoing instrument, and acknowledged to and before me that he
executed said instrument for the purposes therein expressed.
WITNESS my hand and official seal, this 1a day of �,
A.D., 1991.
My commission expire /
IOTARY PUBLIC, STATE OF FLORIDA AT LA ROE
NY COAIA"SS10M EXPIRES JULY 04; 1992
BONDED TNRU AGENT'S NOTARY BROKERsCE
41
Not Public
State of ��291c10
IN WITNESS WHEREOF, Richard B. Shore has executed and
delivered this Agreement and Declaration of Trust as of the day and
year first above written.
Witnesses:
I
-v
.S1NEW
mm
1
STATE OF
COUNTY -OF =eU_
i
. jztxx_d��
Richard B. Shore
Before me personally appeared Richard B. Shore, to me well
known and known to me to be the person described in and who
executed the foregoing instrument, and acknowledged to and before
me that he executed said instrument for the purposes therein
expressed.
WITNESS my hand and official seal, this o2�e day of_8L�__;
A.D., 1991.
dz . A A--,,
Notary Publ' I1
State of
My commission expires
42
i
IN WITNESS WHEREOF, the Board of County Commissioners of
Brevard County, Florida has caused this Agreement and Declaration
of Trust'to be executed and delivered as of the day and year first
abovb written.
ATTEST:
W/I
Clerk to the Bo d of
County Commissioners
(SEAL)
43
T
OUNTY, PLO
RIDAA
Chairman, Board of County
Commissioners
IN WITNESS WHEREOF, the Board of County Commissioners of
Hernando County, Florida, has caused this Agreement and
Z-e-craratlon of Trust to be executed and delivered as of the day and
year first above written.
,rTE.ST,:,
-C.
erk tot he,-'-1pqard
qard
,.,.County Conbils.iiioners
0?,
6— 44
11rp'— - - -- - - - - ----
Hernando COUNTY, FLORIDA
rTan, Bo r4f County��
7 sioners
XX wxTNEBs WHEREOF, the Board of County Commissioners of
Manatee County, Florida has caused this Agreement and Declaration
ofTrustto be executed and delivered as of the day and year first
-above written.
NANATE OUNTY, FLORIDA
ATTEST:
Clerk. -to the Board ef
County Commissioners
`SEAL,
45
Chairman, Board
Commissioners
ATTEST:
Comptroller
(SEAL)