HomeMy WebLinkAboutContract 52423 L� TIAA CSj\jso CITY SECRETARY -
Ft 2019 CONTRACT NO. d
JUN 17
C1N} S�CRE(A Y H
TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA
RECORDKEEPING SERVICES AGREEMENT WITH A TIAA
BROKERAGE ACCOUNT FOR GOVERNMENTAL PLANS
THIS AGREEMENT("Agreement")is entered into as of this Oday of April,2019,or such later date as the parties
shall agree by Notice,by and between Teachers Insurance and Annuity Association of America("TIAA"),a
corporation organized and existing under the laws of the State of New York,and City of Fort Worth("City").
TIAA and City are each a"Party"to this Agreement. There are no third party beneficiaries under this Agreement.
WITNESSETH:
WHEREAS,City sponsors and maintains the City of Fort Worth 457 Deferred Compensation Plan(the
"Plan(s)"), for the benefit of eligible employees and participants,beneficiaries and alternate payees with an account
balance(collectively,"Participants");
WHEREAS,City entered into that certain Record Keeping Agreement with TIAA effective as of April 1,2014,as
amended from time to time, for the Plan and which terminates as of March 31,2019(the"Original Agreement"),
WHEREAS,assets of such Plan(s)are allocated to and invested in certain mutual funds,TIAA Brokerage Account,
other funds and Teachers Insurance and Annuity Association of America-College Retirement Equities Fund
("TIAA-CREF")annuity contracts selected by City and made available by City under the terms of the Plan(s)for the
benefit of Participants;
WHEREAS,City seeks the provision of certain record keeping services in connection with the operation and
administration of the Plan(s);and
WHEREAS,TIAA desires to provide such services to City in connection with the operation and administration of
the Plan(s)as set forth in more particularity in this Agreement.
NOW,THEREFORE,in consideration of the promises and mutual covenants,representations and warranties set
forth herein,TIAA and City agree,as follows:
I OFFICIAL RECORD
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1. APPOINTMENT; ACCEPTANCE; AUTHORITY TO DIRECT OTHERS
1.1 The City hereby appoints TIAA as a record keeper for the Plan(s)to provide"Contracted Services"as
defined in Section 1.1.TIAA shall provide the Contracted Services in accordance with the provisions of
the Plan(s),but TIAA shall have no discretionary control over the Plan(s).
"Contracted Services"means solely and exclusively the end-product/services outputs,outcomes,
communications to Plan Parties and quality assurance over the foregoing included in the description
of services in Part I—Contracted Services of Schedule A to this Agreement;and
"Plan Parties"means,collectively,the City and employees of the City eligible to participate in the
Plan.
The Contracted Services shall not include any infrastructure or ancillary or supporting activities,
functions or operations of TIAA and/or its affiliates or subcontractors,including,without
limitation,activities,functions and operations that support TIAA's or its affiliates' lines of business
and/or internal corporate infrastructure and operations,which are referred to herein as"TIAA
Infrastructure and Other Operations".
TIAA Infrastructure and Other Operations do not constitute a part of the Contracted Services and
are not subject to the terms and requirements of this Agreement.
1.2 TIAA hereby accepts the appointment as a record keeper for the Plan(s)and agrees to provide the
Contracted Services.TIARA is responsible for exercising reasonable care in providing the Contracted
Services.Should an error occur,TIAA shall make a good faith effort to correct any error caused by its
performance subject to the limitations herein set forth to restore the Plan(s)to the position it would have
been in had the failure not occurred,including restoration of current and former Participants to the
benefits and rights they would have had if the failure had not occurred. TIAA shall in no event be liable,
regardless of the form of the action,for loss of profit,goodwill,or other special consequential damages
suffered by the City or the Plan(s) as a result of the Contracted Services. The Contracted Services
performed by TIAA under this Agreement may be performed on TIAA's behalf wholly or in part
through subcontractors designated by Thy A.TIAA shall continue to be liable for the performance of
any Contracted Service performed by such subcontractors and shall be solely responsible for paying the
fees such subcontractors charge for the performance of such Contracted Services.To the extent that
Contracted Services are to be performed by a broker-dealer as determined solely by TIAA,the City
agrees that such Contracted Services may be performed by TIAA-CREF Individual&Institutional
Services,LLC,a wholly owned subsidiary of TIAA.
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2. NON- FIDUCIARY STATUS
Except with respect to its offering a Contracted Service that delivers investment and savings advice to
Participants as described in Schedule A,it is intended that the Contracted Services be ministerial in nature and
that nothing in this Agreement should be construed as granting any discretionary authority,control or
responsibility to TIAA with respect to the Plan(s),the Participants,or the investments under the Plan(s).
The power to determine which funding options are made available to Participants under the Plan(s)(as listed
in Schedule B of this Agreement)is reserved to the City and fiduciary(ies)of the Plan(s).The City and
fiduciary(ies)of the Plan(s),in their sole discretion,shall select such funding options from the funding options
that TIAA makes available on its recordkeeping platform. TIAA shall have no responsibility for the selection
of funding options under the Plan(s)and shall not render investment advice to any person in connection with
the selection of such options.
3. CHANGES TO ADMINISTRATIVE PROCEDURES
TIAA reserves the right to make changes to any administrative procedures in order to assure quality service;
provided,that TIAA agrees to provide the City with(i)reasonable advance notice of any changes,and(ii)the
opportunity to have input into the manner in which any such changes are made and implemented.
4. DATA REQUIREMENTS; TRANSMITTAL OF DATA
TIAA and the City shall work together to develop guidelines for data processing. The City shall be
responsible for the timely transmittal to TIAA of participant data that is materially correct and complete.
5. PERSONNEL AND RESOURCES
TIAA shall provide sufficient personnel and resources as may be necessary to perform the Contracted
Services in a thorough and professional manner. The personnel designated by TIAA to perform the Contracted
Services shall have the training and background necessary to perform such Contracted Services.
6. ERRORS, OMISSIONS OR DELAYS
6.1 Each Party to this Agreement will be responsible to the other Party for their own respective errors,
omissions or delays in the performance of their responsibilities under this Agreement.Each Party shall
notify the other Party(i)of any errors,omissions or interruptions in,or delay or unavailability of,the
Contracted Services in the case of TIAA and services performed by the City in the case of City or(ii)if
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it is unable to perform any of its obligations under this Agreement. Such notice shall be provided as
promptly as administratively feasible following the discovery of any events covered by(i)or the
occurrence of any events covered by(ii)of this paragraph.Notification under this provision shall be in
such form as is required by Section 13 of this Agreement. Such notice shall not relieve the notifying
Party of its obligations under this Agreement.Within ninety(90)days following the date on which the
City is furnished with a report in which the claimed error is contained,the City shall furnish all data
necessary to make the correction.
6.2 The City acknowledges that in performing the Contracted Services,TIAA must rely exclusively on the
data and information provided to TIAA by the City and Participants,and that TIAA is not obligated to
inquire into and is not responsible for the authenticity or accuracy of such data or information received
from the City and Participants.If TIAA is required to repeat or reprocess any task as a result of
incomplete or inaccurate information provided by a Plan,TIAA may charge a reasonable reprocessing
fee. In addition,if amounts are sent with incorrect instructions,or in amounts that do not reconcile with
the instructions given,TIAA may(1)apply the amounts for which accurate instructions are given and
refund any excess amounts to the City,or(2)if amounts are less than the instructions call for,refund
the entire amounts to the City.
6.3 The City shall review all record keeping reports and shall immediately notify TIAA of any claimed
error with respect to any data or report. TIAA assumes no responsibility for verification and any report
not challenged in writing by the City within ninety(90)days of receipt thereof shall be conclusively
presumed accurate and complete.
6.4 The foregoing notwithstanding,TIAA will,at the City's request,make a good faith effort to correct any
error brought to its attention after the ninety(90)day time period set forth in 6.1 or 6.3 has expired.
7. REPRESENTATIONS, WARRANTIES AND COVENANTS
7.1 Each Party represents that it is free to enter into this Agreement and that by doing so it will not breach
or otherwise impair any other agreement or understanding with any other person,corporation or entity.
TIAA further represents,warrants and covenants that:
a. It has full power and authority under applicable law,and has taken all action necessary,to enter
into and perform this Agreement, and that the person executing this Agreement on its behalf is
duly authorized and empowered to execute and deliver this Agreement;
b. This Agreement,when executed and delivered,shall constitute the valid,legal and binding
obligation of TIAA,enforceable in accordance with its terms;
C. TIAA is a stock life insurance company duly organized, existing and in good standing under the
laws of the State of New York;and
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The City further represents,warrants and covenants that:
d. It has full power and authority under applicable law,and has taken all action necessary,to enter
into and perform this Agreement,and that the person executing this Agreement on its behalf is
duly authorized and empowered to execute and deliver this Agreement;and
e. This Agreement,when executed and delivered,shall constitute the valid,legal and binding
obligation of the City,enforceable in accordance with its terms.
f In the event TIAA or its affiliates or subsidiaries provide the City with communications marked
"institutional use"only,the City agrees that such materials are for its use and not intended for use
with or distribution to Participants. The City agrees not to distribute such materials to
Participants,unless required by law.
8. FEES & COMPENSATION FOR SERVICES
8.1 TIAA's annual revenue requirement for the services under this Agreement is 0.08%(8 basis points
multiplied by plan assets equals,the"Revenue Requirement")per Plan. TIAA's Revenue Requirement
for the Plan(s)will remain in effect for a five(5)year period beginning April 1,2019(ending March
31,2024)(the"Revenue Requirement Term").
Where the City with respect to a Plan maintains a balance in and makes active contributions to any of
the mutual funds,other investment vehicles,and/or TIAA-CREF annuity contracts recordkept on
TIAA's platform,TIAA will compare the Revenue Requirement to the revenue generated by such Plan
on a quarterly basis to determine if the Plan generated sufficient revenue to meet TIAA's Revenue
Requirement("Reconciliation Process"). TIAA will provide the City a Reconciliation report accessible
on P1anFocus, TIAA's administrative web service,which will provide the results of the Reconciliation
Process.The revenue generated by a Plan that is considered by the Reconciliation Process to pay for
TIAA's Revenue Requirement for that Plan may be attributable to the following:
Investments that provide Revenue Sharing Payments:
The City understands that certain proprietary and non-proprietary mutual fund investments may make
Revenue Sharing Payments' to TIAA as a record keeper.A Revenue Sharing Payment is money paid
from a mutual fund's expense ratio,or by a fund's investment manager,distribution company or
transfer agent from their revenues to a plan record keeper for keeping track of the ownership of the
mutual fund's shares and other shareholder services.Any revenue shared by an investment provider is
included as part of each of their investment's expense ratio and is not in addition to the published
expense ratios.
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The City agrees that the amount of such Revenue Sharing Payments shall be used in the Reconciliation
Process to satisfy the Plan Revenue Requirement.In addition,for those investments that provide
revenue greater than 0.115%(11.5 basis points)such excess revenue shall be credited to the specific
investments held in each Plan participant's and beneficiary's Plan accounts("Participant Accounts")
that generated such revenue sharing credits("Investment Level Credit"). The Investment Level Credit
shall be based upon the participant's and beneficiary's average daily balance and processed in arrears
with the first credit occurring on June 28,2019,and quarterly thereafter.
The current schedule of investments and their respective Revenue Sharing Payment amounts are listed
in Schedule B,as amended from time to time.Revenue Sharing Payments are subject to change at the
election of the fund company.In no event shall such changes to Revenue Sharing Payments change
TIAA's Revenue Requirement as set forth above.
8.2 In the event that the Reconciliation Process determines that the Plan(s)generated revenue in excess of
TIAA's Revenue Requirement,TIAA shall credit the Plan(s)Revenue Credit Account in the amount of
the excess.A Revenue Credit Account is a suspense account held under the terms of the Plan which is
funded with excess revenue generated from that Plan.
The Revenue Credit Accounts may only be used either to pay dv-ect,reasonable and necessary Plan
expenses which the Plan(s)are authorized to pay or to provide benefits for Plan participants and
beneficiaries in the form of plan servicing credits. Such credits can be paid to Plan participants'
accounts,with at least thirty(30)days'Notice from the City to TIAA prior to the plan year end, in a
method elected by the City provided that TIAA can administer such City election and provided that
TIAA determines,in its sole discretion,that the elected method will not violate applicable law.
Payments from Revenue Credit Accounts directly to the City will be made only if the following
procedures are followed:
1. Legal counsel for the City shall provide,in writing,assurance to TIAA that such legal counsel
has reviewed the reimbursement arrangement for plan expenses to be paid directly to the City and
that in its opinion the program for expense reimbursement,as structured,is set up in accordance
with the Plan and state law and covers expenses that would not have been incurred by the City
but for the retirement plan(e.g.,no overhead or settlor expenses,are covered). This will be a
onetime certification and will be effective for the duration of the Revenue Requirement Term.
2. Prior to each payment the City shall provide TIAA with a written certification that the expenses
to be paid meet the requirement that they are reasonable in amount, necessary for the
administration of the Plan, are in accordance with Plan terms and would not have been incurred
but for the Plan and are expenses that TIAA can pay in accordance with state law.
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The City represents that payments from Revenue Credit Accounts shall be used to reimburse direct,
reasonable and necessary expenses of the Plan(s)that the Plan(s)are authorized to pay or to provide
revenue credits to Plan Participants Accounts as stated above.No payments shall be made directly to
the City or the Named Fiduciary of the Plan(s)without adherence to the above requirements.For
payments made directly to a Plan service provider,TIAA shall facilitate transactions to cover
reasonable and necessary Plan expenses that each Plan itself could pay.To establish a service provider
for reimbursement,the City shall provide a W-9 to TIAA.Newly established service providers shall be
reimbursed through electronic funds transfer(EFT)means only.In addition,the City is responsible for
any applicable tax-withholding and reporting(e.g., 1099-MISC tax reporting).The service provider
invoice must be submitted along with detailed payment instructions. The City agrees to utilize
P1anFocus,TIAA's administrative web service to manage their Revenue Credit Accounts including
establishing service providers,providing a W-9,and submitting reimbursement requests. Once
instructed through P1anFocus,payments shall be made directly to the plan service provider within an
administratively feasible period of time and no later than thirty(30)days after the date the instructions
were received.
8.3 In the event that the Reconciliation Process determines that a Plan did not generate sufficient revenue to
meet TIAA's Revenue Requirement and therefore results in a shortfall,the City understands and agrees
that TIAA shall invoice the City for such shortfall and the City agrees to pay such invoice within thirty
days of receipt.
8.4 If,in the good faith determination of both parties the assumptions and terms as determined above have
changed substantially,the parties agree to revise this section.The City and TIAA will amend this
section and any additional agreements in order to reflect the new Revenue Requirement that will be
used for the Reconciliation Process.Notwithstanding the foregoing,TIAA agrees to give the City sixty
(60)days advance notice prior to requesting such a revision.In the event the Revenue Requirement
Term expires and a new Revenue Requirement and/or Revenue Requirement Term has not been
established,the terms of this Section 8 will continue until the effective date of the new Revenue
Requirement and/or Revenue Requirement Term.
8.5 For the purpose of this Agreement,the table below details each Legal Plan and their associated TIAA
identification numbers that will be utilized for the Reconciliation Process under this Section 8:
Legal Plan Name I TIAA Identification Numbers
City of Fort Worth 457 Deferred Compensation Plan 406425
8.6 Other Fee Assessments not considered in Reconciliation Process include:
The City understands and accepts that certain fees and commissions will apply to the TIAA Brokerage
Accounts. Such fees and commissions shall be listed in the TIAA Self-Directed Brokerage Account
Customer Agreement and,pursuant to the Agreement,such fees and commissions will be subject to
change. If such fees or commissions are changed,TIAA will provide the Plan Administrator with 60
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days prior written notice.Certain minimum balance and minimum investment amounts may also be
required pursuant to the terms of that Agreement.If such fees cannot be paid from the Self Directed
Brokerage Account itself,they may be paid from the participant's or beneficiary's other Plan accounts
pursuant to the terms of the Customer Agreement.In addition,the City understands,with respect to
TIAA's Revenue Requirement as set forth above,that the assets in a TIAA Brokerage Account are
counted as Plan assets but any fees and commissions collected under a TIAA Brokerage Account
Agreement shall not count for purposes of meeting a Plan's Revenue Requirement.
9. MAINTENANCE OF RECORDS
TIAA agrees that the books,records,accounts,ledgers,documents,and other compilations of data(whether
written,electronic,computer related or otherwise)collected and maintained by TIAA for the City and/or the
'Plan(s)under any provision or requirement of this Agreement(the"Records")are the property of the City.
During the term of this Agreement,TIAA will at all times cooperate with and grant the City or its designee
reasonable access to the Records during TIAA's normal business hours. If any litigation,claim,negotiation,
audit,or other action involving the Records is commenced prior to the expiration of the applicable retention
period,both TIAA and the City shall retain all Records until completion of the action and resolution of all
issues resulting therefrom.Upon the expiration or termination of this Agreement,TIAA shall provide Records
to the City upon such schedule and in such form or format as the City and TIAA agree is reasonable.
10. INDEMNIFICATION AND LEGAL ACTIONS
10.1 If any person or entity threatens to commence or commences any action against TIAA or the City,or
their respective employees,officers,directors,agents,affiliates and subcontractors or related persons or
organizations,with respect to the performance of their duties and obligations under this Agreement,
then TIAA or the City,as the case may be,shall promptly give notice thereof to the other party to this
Agreement.Each party shall be entitled,on its own behalf,and at its own expense,to assume control of
its defense of such action with counsel selected by that party.Without the prior written consent of the
other party,which consent shall not be withheld unreasonably,each party may not settle or compromise
the liability of the other party in such action,or consent to or permit the entry of any judgment in
respect thereof unless in connection with such settlement,compromise or consent the other party
receives from such claimant an unconditional release from all liability in respect of such claim.
10.2 Notwithstanding anything to the contrary herein and in this Section 10,TIAA shall expressly
indemnify,defend and hold harmless any of the City Parties from all,loss,damage,costs,
charges,liability penalties,fines or expense,including without limitation,reasonable
attorneys'fees and accountants'fees and disbursements that may be incurred by,imposed
upon,or asserted against any of the City Parties,on account of any claim or action at law or in
equity against any of the City Parties to the proportionate extent that it results from the
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negligence,errors,omissions or wrongdoing of the Custodian,its employees,agents,
subcontractors and affiliates under that certain Custodial Account Agreement for a 457(b)Plan
between the City and TIAA,FSB,entered into on or about the effective date of the Original
Agreement.
10.3 The provisions of this Section 10 and the indemnities granted by TIAA in this Section shall survive the
termination of this Agreement for any claims that arise from actions taken by the Parties during the term
of the Agreement..
11. CONFIDENTIALITY; CITY/ PLAN(S) NAME
11.1 City is a government.entity under the laws of the State of Texas and all documents held or maintained
by City may be subject to disclosure under the Texas Public Information Act.To the extent the
Agreement requires that City maintain records in violation of the Act,City hereby objects to such
provisions and such provisions are hereby deleted from the Agreement and shall have no force or effect.
In the event there is a request for information marked Confidential or Proprietary,City shall promptly
notify TIAA.It will be the responsibility of TIAA to submit reasons objecting to disclosure.A
determination on whether such reasons are sufficient will not be decided by City,but by the Office of
the Attorney General of the State of Texas or by a court of competent jurisdiction.
11.2 With the exception of section 11.1 above,TIAA and the City recognize and acknowledge that,by
entering into this Agreement,each Party may have access to certain information of the other Party that
is confidential and constitutes valuable,special and unique property of that other Party.The Parties
agree that they will not at any time,either during or for a period of five(5)years following the
expiration or termination of this Agreement,disclose confidential information to any third party,or use,
copy or permit the transmittal of confidential information to any third party,without the other Parry's
express prior written consent.Notwithstanding the foregoing,consent is not required in connection with
(i)TIAA's disclosure,use,copy or transmittal of confidential information to third parties to the extent
TIAA deems necessary to provide the Contracted Services,(ii)disclosure of the terms of this
Agreement by the Parties to their regulators,legal counsel,accountant or financial advisors(none of
whom will be associated or affiliated in any way with the other Party or any of its affiliates),and(iii)
disclosure that is required by law.Unauthorized disclosure of the terms of this Agreement will be a
material breach of this Agreement and will provide the non-breaching Party the option of pursuing all
remedies under this Agreement and at law and equity.
11.3 All payroll,employee,and Participant information received by TIAA under this Agreement shall be
treated as confidential information and shall be handled by TIAA in accordance with applicable law,
TIAA's privacy policy,the terms of the Plan,and in accordance with the requirements of this Agreement.
11.4 Notwithstanding anything herein to the contrary,no obligation or liability shall accrue hereunder with
respect to any confidential information that:
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a. was in the public domain prior to the date of this Agreement or subsequently came into the public
domain through no act of the recipient Party;or
b. was lawfully received by the recipient Party from a third party free of any obligation of
confidentiality to such third party;or
c. was already in the lawful possession of the recipient Party,prior to receipt thereof from the
disclosing Party.
11.5 Subject to the express written consent of the City,TIAA shall have the non-exclusive and non-
transferable right to use the name of the City and the Plan(s)solely in connection with rendering
Contracted Services.Any material,including electronic,print, or other media,in which the City's or the
Plan(s)name may be used shall be submitted to the City in hard copy or electronic copy for review and
approval prior to use by TIAA.Notwithstanding the foregoing or any other provision of Section 11,the
City(i)agrees that TIA.A may include the names of the City and the Plan(s) in any material or
presentation that is specifically prepared and used in connection with a process relating to a request for
proposal or procurement solicitation from a non-for-profit or governmental entity("RFP-Related
Disclosure"),and(ii)acknowledges that no prior review or approval is required in connection with such
RFP-Related Disclosure.For the avoidance of doubt,none of a general solicitation,advertising,or press
release shall constitute RFP-Related Disclosure.Upon termination of this Agreement,TIAA agrees to
immediately discontinue use of the City and the Plan names.
12. WAIVER
The failure of either TIAA or the City at any time to require performance of any provisions hereof will in no
manner affect its right at a later time to enforce such provision and will not act as a waiver thereof.
13. NOTICE
Any notices that may be required under this Agreement shall be given:in writing and delivered personally or
mailed by certified mail or courier service to the other Party at the following address or such other address as
each Party may give notice to the other. In addition to the methods of providing notice as described herein,any
notice required under Section 6.1 may be given by electronic transmission including by facsimile or electronic
mail.
If to TIAA,to:
Client Agreement Team
TIAA
730 Third Ave-26`b floor
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Attention:Director Institutional Client Services
If to the City,to:
City:Assistant City Manager for the Human Resources Department
City Manager's Office
City of Fort Worth
1000 Throckmorton Street
Fort Worth,TX 76102
14. EFFECTIVENESS; TERMINATION
This Agreement shall become effective as of the date set forth above. The City may remove TIAA as record
keeper upon ninety(90)days prior written notice to TIAA.TIAA may resign as record keeper upon ninety
(90)days prior written notice to the City.
15. APPLICABLE LAW
This Agreement shall be construed,and the provisions hereof interpreted under,in accordance with the laws
of the state or other jurisdiction in which the City was organized or established("Jurisdictional Venue"),as
applicable,without regard to such Jurisdictional Venue's principles regarding conflicts of law.
16. COMPLETE AGREEMENT; MODIFICATIONS
This Agreement,including applicable exhibits,embodies the entire agreement between the Parties and
supersedes all prior agreements and documents relating to the subject matter of this Agreement. All
amendments to this Agreement must be in writing and signed by both Parties.
17. COUNTERPARTS
This Agreement may be executed simultaneously in two or more counterparts,each of which taken together
shall constitute one and the same Agreement.
18. SEVERABILITY
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If any provision of this Agreement shall be held or made invalid by a court decision,statute,rule or otherwise,
the remainder of this Agreement shall not be affected thereby.
19. SUCCESSORS AND ASSIGNS
This Agreement will be binding upon,inure to the benefit of,and be enforceable by the respective successors
of the Parties. This Agreement will not be assignable by any Party hereto without the written consent of the
other Party.
20. NON-EXCLUSIVITY
Each of the Parties acknowledges and agrees that this Agreement and the arrangements described herein are
intended to be non-exclusive and that each of the Parties is free to enter into similar agreements and
arrangements with other entities.
21. RIGHT TO AUDIT
TIAA agrees that City shall,until the expiration of three(3)years after expiration or termination of the
Agreement,have access to and the right to examine any directly pertinent books,documents,papers and
records of TIAA involving transactions relating to the Agreement.TLAA agrees that City shall have access
during normal working hours to all necessary TIAA facilities and shall be provided adequate and appropriate
workspace in order to conduct audits in compliance with the provisions of this section.City shall give TIAA
reasonable advance notice of intended audits.
22. GOVERNMENTAL POWERS
Both Parties agree and understand that the City does not waive or surrender any of its governmental powers
by execution of this Agreement.
23. TEXAS PUBLIC INFORMATION ACT
TIAA understands and agrees that the City is subject to the Texas Public Information Act.TLAA for itself and
its officers,agents,employees,independent contracts,contractors,or subcontractors further agrees that it shall
treat all information provided to it by the City as confidential and shall not disclose any such information to
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any third party without the prior written approval of the City.Company further agrees that City shall have
access to anything that is deemed public information held in the possession of Company that City may be
obligated by law to provide to the public.
24. TERM
24.1 The Term of this Agreement shall begin April 1,2019 and end April 1, 2022("Initial Term").
24.2 In addition to the Initial Term,there shall be two options to renew this Agreement for terms of one(1)
year each,unless earlier terminated as provided herein,each a"Renewal Term."Renewal shall occur
automatically unless City or TIAA provides the other party with thirty(30)days written notice of its
intent not to renew. The Initial Term plus any and all Renewal Terms are collectively herein referred to
as the"Term."
25. NON-DISCRIMINATION
TIAA, in the execution, performance or attempted performance of this Agreement, will not discriminate
against any person or persons because of disability, age, familial status, sex, race, religion, color or national
origin,nor will TIAA permit its officers,agents, employees, independent contractors, or subcontractors to
engage in such discrimination.
This Agreement is made and entered into with reference specifically to Chapter 17,Article III, Division 3,
of the City Code of the City of Fort Worth ("Discrimination in Employment Practices"), and TIAA hereby
covenants and agrees that it,its agents,employees and subcontractors have fully complied with all
provisions of same and that no employee or employee-applicant has been discriminated against by either
TIAA, its agents,employees or subcontractors.
26. FISCAL FUNDING
In the event no funds or insufficient funds are appropriated by the City in any fiscal period for any services
to be provided hereunder,City will notify TIAA of such occurrence and this Agreement shall terminate on
the last day of the fiscal period for which appropriations were received without penalty or expense to City of
any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds shall have
been appropriated.
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(� TIAA
Should any action, whether real or asserted, at law or in equity, arise out of the execution, performance,
attempted performance of this Agreement,venue for said action shall lie in Tarrant County,Texas.
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TIAA
CITY:
City of Fort Worth Contract Compliance Manager:
By signing I acknowledge that 1 am the person
responsible for the monitoring and administration of this
contract,including ensuring all performance and
By: _ reporting requirements.
Name: q i S
Title: "'�Assistant City Manager i�
Date: By: Name:
Approval Recommended: Title:
Approved as to Form and Legality:
By:
Name:
Title: By:
Name: John 9. Stron
Attest: Title: Assistant City A orney
pntract Authorization:
By:
Name: MaVwer
Title: City Secretary
TIAA:
Teachers Insurance and Annuity Association of America
By:
Name: Stephanie Morano
Title: Manager,Client Agreements
Date: 5 J/
OFFICIAL RECORD
15 CITY SECRETARY
IORT", X
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L11. TIAA
SCHEDULE A
Part I— Contracted Services
TIAA shall provide the Contracted Services as listed in this Schedule A.
1. TIAA will provide Participants with enrollment,education and consulting services.TIAA will provide
Participants with Plan enrollment kits and shall otherwise aid in the enrollment of employees eligible to
participate in a Plan. Such services may include internet based services,voice response unit service and mail
service.
2. TIAA will provide the Plan Parties with functionality of record keeping system which will be based solely on
information provided to TIAA by the Plan.TIAA,based on the funding options listed in Schedule B,shall
maintain records of each Plan Participant's account balances including those amounts paid as premiums to
and balances in TLAA-CREF annuity contracts. The records of each such account balance shall reflect
amounts attributable to City contributions,participant elective-deferral contributions,rollover contributions
(when permitted by the applicable Plan)and transfers,and any after-tax contributions(when permitted by the
applicable Plan). If a 403(b),governmental 457(b)or 401(k)plan accepts after-tax Roth elective deferral
contributions,TLAA shall keep records that separately account for such contributions.TIAA shall also
maintain records of rollover Roth contributions,as permitted by the Plan,which shall also be accounted for
separately.
3. TIAA shall arrange for contributions to and investments in a Participant's account to be allocated to the
investment options under a Plan including a TIAA Brokerage Account as described in Schedule B,as directed
by the Participant. The investment options and,if applicable,TLAA Brokerage Account chosen for the Plans
by the City and/or fiduciary(ies)of the Plan are set forth in Schedule B.All contributions shall be allocated
among such funding options in accordance with the most recent valid instructions. Transfers among plan
funding options shall be made pursuant to the instructions of the Participant in accordance with the terms of
the Plans but subject to any restrictions in the applicable mutual fund,TIAA-CREF annuity contract or, if
applicable,brokerage agreement. TIAA shall provide to the Participant all of the forms necessary to enable
them to allocate contributions or transfer amounts among the Plan funding options.TIAA reserves the right, in
its sole discretion,to amend or delete funding options that are offered an TIAA's recordkeeping platform and
made available to plan sponsors which shall include,if applicable,the addition or deletion of one or more of
the TIAA-CREF Lifecycle or Lifecycle Index Funds. TLAA shall provide the City notice of such amendment
or deletion at least ninety(90)days prior to such action or,if there are exigent circumstances beyond the
control of TLAA(including,but not limited to,a change initiated by a fund company),as soon as
administratively practicable following notice to TLAA by the fund company. The City or fiduciary(ies)of the
Plan may,in their sole discretion,select another funding option from TIAA's recordkeeping platform to
replace the deleted or amended funding option. To the extent permitted by such funding option,amounts in a
deleted or amended funding option will be transferred to a funding option directed by the City or the
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UTIAA
fiduciary(ies)of the Plan(s)or,at the election of the City or fiduciary(ies)of the Plan(s),shall remain in the
amended funding option.TIAA shall work with the City to amend Schedule B of this Agreement and
transition to the new or amended funding option directed by the City or the fiduciary(ies)of the Plans.In the
event that the City or the fiduciary(ies)of the Plan(s)fail to provide TIAA with instructions, and such City or
fiduciary(ies)of the Plan(s)have not selected another funding option from TIAA's recordkeeping platform,
the City hereby directs TIAA to transfer amounts in a deleted funding option to the Plan's default fund until
TIAA receives such instructions.If the Plan's default fund has been deleted the City agrees to provide TIAA
with instructions to transition to a new default fund.Notwithstanding the foregoing,unless otherwise
instructed by the City and to provide more favorable terms for Participants,the City hereby directs TIAA to
replace CREF Annuity funding options with a less expensive class of the same funding option in the event
that such less expensive class becomes available. The City shall be notified in the event that such less
expensive share class becomes available and shall be given the opportunity to reject such change by providing -
reasonable advance notice to TIAA directing TIAA not to make the less expensive CREF Annuity class
available.
In connection with plan administration matters,including but not limited to the correction of errors relating to
the remittance of a contribution or a change of plan custodian,the City may,in its sole discretion,take any or
all of the following actions with respect to participant's account(a)instruct and direct TIAA-CREF and/or
Custodian to liquidate securities,(b)terminate account and(c)transfer assets in participant account to another
institution,all without participant's consent.
4. TIAA shall send periodic record keeping reports and communications to the City of Fort Worth Deferred
Compensation Plan Oversight Committee("Committee")and other entities as the Committee may direct and
each Participant,including but not limited to information regarding returns and investment performance under
the mutual funds and TIAA-CREF annuity contracts used to fund the Participant's account under a Plan.
5. TIAA shall send any communication that it is required to provide by mail to a Participant to the address
provided to TIAA by the Plan or by the Participant.
6. TIAA shall,as authorized under a Plan by the City and subject to applicable law,administer and account for
plan loans available under the terms of a Plan and shall,as authorized under a Plan by the City and subject to
applicable law,administer and account for unforeseeable emergencies in accordance with the requirements of
26 CFR§ 1.457-6 and other applicable guidance from the Internal Revenue Service a s directed by the City in
accordance with,and if permitted under the terms of the Plan.
7. TIAA shall,if applicable,as authorized under a Plan by the City and subject to applicable law,provide for the
liquidation of amounts in and make plan benefit payment distributions permitted under,the TIAA-CREF
annuity contracts in a Participant's Plan account as outlined in Schedule B.In addition,TIAA shall,as
authorized under a Plan by the City and subject to applicable law,provide instructions to TIAA,FSB for the
liquidation of investments in and to make plan benefit payment distributions permitted under the mutual funds
in a Participant's Plan account.
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8. TIAA shall maintain records of each Participant's designated beneficiaries based on information provided by
the Participants or the Plan.
9. To the extent permitted under applicable law,TIAA shall assure the performance of any required withholding
of income tax from distributions and withdrawals.The foregoing notwithstanding,TIAA shall not provide for
the performance of withholding of income tax from distributions and withdrawals from any Plan that is
maintained pursuant to private tax-exempt section 457(b)of the Internal Revenue Code of 1986,as amended
("Code"),Code section 415(m)or Code section 457(f)covered under this Agreement unless appropriate
arrangements are made in writing with TIAA.Prior to the distribution of each Participant's benefits,TIAA
shall provide the appropriate notice as required under section 402(f)of the Code,when applicable.
10. On each day the New York Stock Exchange(the"Exchange")is open for business(each a"Business Day"),
TIAA may receive instructions from a Plan and/or Participant on behalf of TIAA,FSB for the purchase or
redemption of shares of the mutual funds offered under the terms of the Plan("Instructions").Instructions
which are received in"good order"(defined below)prior to the close of regular trading of the Exchange
(generally 4:00 pm Eastern Time)(the"Close of Trading")on any given Business Day,will be executed by
TIAA,FSB at the net asset value determined as of the Close of Trading on such Business Day.Instructions
which are received in"good order"(defined below)on such day but after the Close of Trading,will be
executed by TIAA,FSB at the net asset value determined as the Close of Trading on the next Business Day
following the date of receipt of the Instruction. Instructions shall be considered received in"good order"when
all necessary information and monies in connection with such Instructions balance and conform to all other
operating procedures,including any restrictions or limits set forth in the applicable fund prospectus or as
otherwise set forth by TIAA on behalf of TIAA,FSB.The date the Instructions are executed shall be referred
to as the"Participation Date".Notwithstanding the foregoing,in the event that the Securities and Exchange
Commission promulgates or amends rules under which the foregoing procedures would be impermissible,this
paragraph 10 shall be amended to provide a procedure that conforms to such rules.
11. TIAA shall cause to be delivered to the City or at the direction of the City,directly to Participants,all notices,
prospectuses,financial statements,proxies and proxy soliciting materials received by TIAA relating to the
TIAA-CREF annuity contracts or the mutual fund shares held in a Participant's Plan accounts.Proxies shall
be voted by,or in accordance with,the instructions of the Participants.If no instructions for voting proxies
applicable to mutual fund shares are received, TIAA shall not exercise the voting rights for such shares and
shall not be responsible for the failure to vote,or instruct the vote on such shares.
12. TIAA shall,as authorized by the City,offer a Plan level service that delivers investment and savings advice to
Participants from an independent third party advice provider.The program follows the guidelines set forth in
Department of Labor("DOL")Advisory Opinion 2001-09A(known as the Sun America Opinion).
Morningstar Investment Management,LLC is the independent financial expert under this participant advice
program.The advice service will be delivered to Participants over the phone,through the web,and by TIAA-
CREF consultants in the field.TIAA accepts fiduciary responsibility for the provision of advice under this
program.
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13. At such times as the City and TIAA shall agree,TIAA shall provide reports to the Committee,and other
entities as the Committee may direct,concerning employee elective deferrals in order to aid in their
compliance with the applicable limits on employee elective deferrals in sections 402(g),457(e)and 414(v) of
the Code,as applicable.
14. As authorized by the City and subject to applicable law,TIAA will administer the spousal consent
requirements applicable to a Plan and have distributed Plan balances in accordance with any Qualified
Domestic Relations Order(as defined in section 414(p)of the Code)received by TIAA or forwarded to TIAA
by a Plan and in accordance with the instructions of the City.
15. TIAA will provide centralized online salary deferral agreement administration,which includes distribution,
receipt and data storage of any salary deferral agreement information input by the participant or through other
means as mutually agreed upon by both parties.This service includes processing of new deferral agreements,
modifying and/or terminating existing deferral agreements and preparing and delivering confirmation
statements. Salary deferral information can be recorded as dollar amounts,percentage of salary,or both as
directed by the plan sponsor.Deferral information will be delivered electronically via a standard file format or
viewed on a website maintained by TIAA on an agreed upon schedule.
16. Upon receipt of the required indicative data in the agreed-upon electronic format,TIAA will identify
eligibility and waiting periods using the employee's eligibility date,as provided by the client,to develop and
deliver all retirement plan enrollment materials.Enrollment materials will be delivered as mutually agreed
upon.
17. Upon receipt of the required indicative and payroll data in the agreed upon electronic format,TIAA will
analyze an employee's contributions to one or more vendors against the applicable individual contribution
limits,based on a calendar year and 401(a)(17)compensation limits, including the 402(g),415(c),457(b),and
any applicable catch-up provisions including 402(g)(7),414(v)and 457(b)(3). TIAA's calculations will be
accurate according to the data provided by the plan sponsor or the participant,as applicable. The service will
adjust contributions to an amount equal to or less than the amount required to reach an individual limit for the
payroll where the limit would be exceeded. The participant's contribution will be suspended for the remainder
of the calendar year and automatically reinstate contributions,using the employee specified SDA that is active
on the current date At the end of each calendar year,TIAA will calculate any required true-up contributions.
Deferral information will be delivered electronically via a standard file format or viewed on a website
maintained by TIAA on an agreed upon schedule.
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LTIAA
Part II — TIAA Infrastructure and Other Operations
All services,activities and functions performed by or for TIAA which are not expressly included in Schedule A,
Part I—"Contracted Services"shall not constitute a part of the Contracted Services to be provided under the
Agreement.Activities,functions and operations that are not a part of,and do not constitute Contracted Services
include TIAA corporate and business lines systems,quality control,data entry and other activities and
operations that are ancillary to the-provision of Contracted Services as defined in the Agreement and this
Schedule A,Part I.
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CTIAA
SCHEDULE B
Plan Funding Options
TIAA-CREF Mutual Funds
Annual Revenue Sharing
Payments
Fund Name Share Class (in basis points) Ticker
TIAA-CREF International Equity Index Fund Premier 15 TRIPX
TIAA-CREF Lifecycle Retirement Income Fund Premier 15 TPILX
TIAA-CREF Lifecycle Funds'
TIAA-CREF Lifecycle 2010 Fund Premier 15 TCTPX
TIAA-CREF Lifecycle 2015 Fund Premier 15 TCFPX
TIAA-CREF Lifecycle 2020 Fund Premier 15 TCWPX
TIAA-CREF Lifecycle 2025 Fund Premier 15 TCQPX
TIAA-CREF Lifecycle 2030 Fund Premier 15 TCHPX
TIAA-CREF Lifecycle 2035 Fund Premier 15 TCYPX
TIAA-CREF Lifecycle 2040 Fund Premier 15 TCZPX
TIAA-CREF Lifecycle 2045 Fund Premier 15 TTFPX
TIA.A-CREF Lifecycle 2050 Fund Premier 15 TCLPX
TIAA-CREF Lifecycle 2055 Fund Premier 15 TTRPX
TIA.A-CREF Lifecycle 2060 Fund Premier 15 TLXPX
Non-Proprietary Mutual Funds
Annual 12b-1 and Revenue Share that
Fund Name TIAA receives in basispoints) Ticker
American Funds New Economy R5E 15 RNGHX
American Funds SMALLCAP World R5E 15 RSLDX
BlackRock High Yield Bond Instl 15 BHYIX
Carillon Scout Mid Cap I 15 UMBMX
The actual Lifecycle Funds currently available as funding options under the Plans are detailed in Schedule B of this Agreement.
TIAA will deem Schedule B to this Agreement to be amended to include a new Lifecycle Fund when a new Lifecycle Fund
becomes available and is subsequently approved by the City to be added as a funding option under the Plans.Any additional
funds, that are not part of the Lifecycle family offunds,will need a signed and executed Amendment to the Record Keeping
Agreement prior to being added as a funding option under the Plans.
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Annual 12b-1 and Revenue Share that
Fund Name TIAA receives in basispoints) Ticker
DFA Emerging Markets Small Cap I 0 DEMSX
DFA Real Estate Securities I 0 DFREX
Goldman Sachs Small Cap Value Instl 15 GSSIX
Invesco Diversified Dividend R5 35 DDFIX
Lazard International Equity Instl 15 LZIEX
Metropolitan West Total Return Bond I 10 MWTIX
Vanguard Institutional Index I 0 V1NIX
Vanguard Mid Cap Index Adm 0 VIMAX
Vanguard Small Cap Index Adm 0 VSMAX
Vanguard Total Bond Market Index Adm 0 VBTLX
Vanguard Treasury Money Mkt Inv 0 VUSXX.
Collective Investment Trust
Annual Revenue Sharing Payments
Fund Name (in basis points) CUSIP
ICMA-RC VantageTrust PLUS Fund R10+ 52 92208J709
TIAA Brokerage Account
Notwithstanding any other provision of the Agreement to which this Schedule is attached to the contrary,the
following provisions shall apply to the TIAA Brokerage Account.If so directed by the City and subject to TIAA's
acceptance of a properly executed TIAA Retirement Plan Self-Directed Brokerage Account Application of a
Participant,all or a portion of the assets of the accounts of a Plan shall be segregated into individual TIAA
Brokerage Accounts established for the benefit of Participants.Pursuant to the terms of the applicable Plan,each
Participant shall have the power to direct the investment and reinvestment of assets in the TIAA Brokerage Account
established for his or her benefit,subject to such administrative rules and procedures as TIAA may establish.
Pursuant to the terms of the applicable Plan,Participants shall provide instructions regarding the investment of the
TIAA Brokerage Account directly to the broker appointed for purposes of executing transactions under the account.
For 403(b)Plans,investments in the TIAA Brokerage Account shall be limited to mutual funds in accordance with
Internal Revenue Code Section 403(b)(7).
Z The 5 basis point administrative payment is subject to ICMA entering into a new participant agreement and platform agreement
with City of Fort Worth and TIAA.Failure reach agreement with ICMA on the new agreements will result in administrative
payment of 0 bps.
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TIAA
SCHEDULE C
SERVICE LEVEL GUARANTEES
TIAA warrants that all of the services under this Agreement will be delivered appropriately and to the satisfaction of
the City. If any defect or error occurs,the City should identify the issue and TIAA will make a good faith effort to
rectify the situation without any additional cost to the City.
TIAA backs this satisfaction guarantee with a financial commitment as follows:
Subject to the Legal Qualifiers as stated below, if the City's identified issue goes unresolved,the City should
provide TIAA with evidence that TIAA did not rectify the situation to the satisfaction of the City. In that case,
a service guarantee penalty related to the cost of providing that service will be paid to the City's plan(s).The
maximum guaranteed amount will be$10,000 annually for the Plan(s).Such amounts shall be paid to the
Revenue Credit Account under the Plan(s).
Legal Qualifiers
TIAA shall be entitled to a ninety(90)day grace period to cure any service that is not delivered appropriately and to
the satisfaction of the City. If after the expiration of the cure period TIAA the service is still not delivered to the
City's satisfaction then the penalties described above shall apply.
Notwithstanding the foregoing,TIAA's obligations and liabilities shall be limited to the following limitations:
(a) The Participant Services Group(PSG)shall be available to respond to telephone calls Monday through Friday
(excluding holidays observed by TIAA) from 8 a.m.to 10 p.m.Eastern Time and Saturdays from 9 a.m.to 6
p.m. Eastern Time.All calls to the PSG will be recorded to help ensure they are handled properly. Calls may
be monitored for training,review and other business purposes. TIAA shall also provide Plan participants toll-
free access to the Automated Telephone Service(ATS)modules. The ATS shall be available seven days a
week and 24 hours a day,except during maintenance downtime and except at other times due to a failure of
telecommunication,electrical,and/or computer systems,or other similar situations. TIAA shall use its best
efforts to remedy any such failure. TIAA shall provide City of Fort Worth with at least 24 hours' advance
notice in the event of a scheduled material maintenance of the ATS expected to result in the unavailability of
the ATS to City of Fort Worth participants for any material period of time,and to the extent reasonably
feasible,TIAA shall facilitate notification to participants in the plans of such unavailability via the web site.
(b) City of Fort Worth shall be solely responsible for the timeliness,accuracy and completeness of the data that it
(or its agent)submits to TIAA,and for any adverse consequences that may result from errors or inaccuracies
caused by the inaccuracy or incompleteness of such data;provided,however,TI .A shall not be excused from
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liability to the extent that TIAA has actual knowledge that such data is erroneous and does not take reasonable
action to notify City of Fort Worth to obtain corrected data. Subject to the foregoing,TIAA may fully rely on
data received,and shall have no obligation to review it or verify its accuracy.
(c) City of Fort Worth agrees that TIAA's performance may deviate from the established expectations from time
to time due to causes beyond TIAA's reasonable control,e.g.,TIAA's receipt of poor or incomplete data,the
periodic failure of information or communications systems(except where such failures are solely attributable
to TIAA's negligence),the operation of the capital markets,computer or operational system failures(except
where such system failures are solely attributable to TIAA's negligence in maintaining such systems),"Acts
of God,"fire,flood,civil or labor disturbance,war,terrorism,act of any governmental authority or other act
or threat of any authority(de jure or de facto),legal constraint,fraud or forgery,inability to obtain or
interruption of external communications facilities,or any cause beyond the reasonable control of TIAA or
other unusual circumstances.
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TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA
RECORDKEEPING SERVICES AGREEMENT WITH A TIAA
BROKERAGE ACCOUNT FOR GOVERNMENTAL PLANS
THIS AGREEMENT("Agreement")is entered into as of this I'day of April,2019, or such later date as the parties
shall agree by Notice,by and between Teachers Insurance and Annuity Association of America("TIAA"),a
corporation organized and existing under the laws of the State of New York,and City of Fort Worth("City").
TIAA and City are each a"Party"to this Agreement.There are no third party beneficiaries under this Agreement.
WITNESSETH:
WHEREAS,City sponsors and maintains the City of Fort Worth 457 Deferred Compensation Plan(the
"Plan(s)"),for the benefit of eligible employees and participants,beneficiaries and alternate payees with an account
balance(collectively,"Participants");
WHEREAS,City entered into that certain Record Keeping Agreement with TIAA effective as of April 1,2014,as
amended from time to time, for the Plan and which terminates as of March 31,2019(the"Original Agreement"),
WHEREAS,assets of such Plan(s)are allocated to and invested in certain mutual funds,TIAA Brokerage Account,
other funds and Teachers Insurance and Annuity Association of America-College Retirement Equities Fund
("TIAA-CREF")annuity contracts selected by City and made available by City under the terms of the Plan(s)for the
benefit of Participants;
WHEREAS,City seeks the provision of certain record keeping services in connection with the operation and
administration of the Plan(s);and
WHEREAS,TIAA desires to provide such services to City in connection with the operation and administration of
the Plan(s)as set forth in more particularity in this Agreement.
NOW,THEREFORE,in consideration of the promises and mutual covenants,representations and warranties set
forth herein,TIAA and City agree,as follows:
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LTIAA
1. APPOINTMENT; ACCEPTANCE; AUTHORITY TO DIRECT OTHERS
1.1 The City hereby appoints TIAA as a record keeper for the Plan(s)to provide`'Contracted Services"as
defined in Section 1.1. TIAA shall provide the Contracted Services in accordance with the provisions of
the Plan(s),but TIAA shall have no discretionary control over the Plan(s).
"Contracted Services"means solely and exclusively the end-product/services outputs,outcomes,
communications to Plan Parties and quality assurance over the foregoing included in the description
of services in Part I—Contracted Services of Schedule A to this Agreement;and
"Plan Parties"means,collectively,the City and employees of the City eligible to participate in the
Plan.
The Contracted Services shall not include any infrastructure or ancillary or supporting activities,
functions or operations of TIAA and/or its affiliates or subcontractors,including,without
limitation,activities,functions and operations that support TIAA's or its affiliates' lines of business
and/or internal corporate infrastructure and operations,which are referred to herein as"TIAA
Infrastructure and Other Operations".
TIAA Infrastructure and Other Operations do not constitute a part of the Contracted Services and
are not subject to the terms and requirements of this Agreeirnent.
1.2 TIAA hereby accepts the appointment as a record keeper for the Plan(s) and agrees to provide the
Contracted Services.TIAA is responsible for exercising reasonable care in providing the Contracted
Services. Should an error occur,TIAA shall make a good faith effort to correct any error caused by its
performance subject to the limitations herein set forth to restore the Plan(s)to the position it would have
been in had the failure not occurred, including restoration of current and former Participants to the
benefits and rights they would have had if the failure had not occurred. TIAA shall in no event be liable,
regardless of the form of the action,for loss of profit,goodwill,or other special consequential damages
suffered by the City or the Plan(s)as a result of the Contracted Services.The Contracted Services
performed by TIAA under this Agreement may be performed on TIAA's behalf wholly or in part
through subcontractors designated by TIAA. TIAA shall continue to be liable for the performance of
any Contracted Service performed by such subcontractors and shall be solely responsible for paying the
fees such subcontractors charge for the performance of such Contracted Services. To the extent that
Contracted Services are to be performed by a broker-dealer as determined solely by TIAA,the City
agrees that such Contracted Services may be performed by TIAA-CREF Individual&Institutional
Services,LLC,a wholly owned subsidiary of TIAA.
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2. NOW FIDUCIARY STATUS
Except with respect to its offering a Contracted Service that delivers investment and savings advice to
Participants as described in Schedule A,it is intended that the Contracted Services be ministerial in nature and
that nothing in this Agreement should be construed as granting any discretionary authority,control or
responsibility to TIAA with respect to the Plan(s),the Participants,or the investments under the Plan(s).
The power to determine which funding options are made available to Participants under the Plan(s)(as listed
in Schedule B of this Agreement)is reserved to the City and fiduciary(ies)of the Plan(s). The City and
fiduciary(ies)of the Plan(s), in their sole discretion,shall select such funding options from the funding options
that TIAA makes available on its recordkeeping platform. TIAA shall have no responsibility for the selection
of funding options under the Plan(s)and shall not render investment advice to any person in connection with
the selection of such options.
3. CHANGES TO ADMINISTRATIVE PROCEDURES
TIAA reserves the right to make changes to any administrative procedures in order to assure quality service;
provided,that TIAA agrees to provide the City with(i)reasonable advance notice of any changes,and(ii)the
opportunity to have input into the manner in which any such changes are made and implemented.
4. DATA REQUIREMENTS; TRANSMITTAL OF DATA
TIAA and the City shall work together to develop guidelines for data processing.The City shall be
responsible for the timely transmittal to TIAA of participant data that is materially correct and complete.
5. PERSONNEL AND RESOURCES
TIAA shall provide sufficient personnel and resources as may be necessary to perform the Contracted
Services in a thorough and professional manner. The personnel designated by TIAA to perform the Contracted
Services shall have the training and background necessary to perform such Contracted Services.
6. ERRORS, OMISSIONS OR DELAYS
6.1 Each Party to this Agreement will be responsible to the other Party for their own respective errors,
omissions or delays in the performance of their responsibilities under this Agreement.Each Party shall
notify the other Party(i)of any errors,omissions or interruptions in,or delay or unavailability of,the
Contracted Services in the case of TIAA and services performed by the City in the case of City or(ii)if
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it is unable to perform any of its obligations under this Agreement. Such notice shall be provided as
promptly as administratively feasible following the discovery of any events covered by(i)or the
occurrence of any events covered by(ii)of this paragraph.Notification under this provision shall be in
such form as is required by Section 13 of this Agreement. Such:notice shall not relieve the notifying
Party of its obligations under this Agreement.Within ninety(90)days following the date on which the
City is furnished with a report in which the claimed error is contained,the City shall furnish all data
necessary to make the correction.
6.2 The City acknowledges that in performing the Contracted Services,TIAA must rely exclusively on the
data and information provided to TIAA by the City and Participants,and that TIAA is not obligated to
inquire into and is not responsible for the authenticity or accuracy of such data or information received
from the City and Participants.If TIAA is required to repeat or reprocess any task as a result of
incomplete or inaccurate information provided by a Plan,TIAA may charge a reasonable reprocessing
fee.In addition,if amounts are sent with incorrect instructions,or in amounts that do not reconcile with
the instructions given,TIAA may(1)apply the amounts for which accurate instructions are given and
refund any excess amounts to the City,or(2)if amounts are less than the instructions call for,refund
the entire amounts to the City.
6.3 The City shall review all record keeping reports and shall immediately notify TIAA of any claimed
error with respect to any data or report. TIAA assumes no responsibility for verification and any report
not challenged in writing by the City within ninety(90)days of receipt thereof shall be conclusively
presumed accurate and complete.
6.4 The foregoing notwithstanding,TIAA will,at the City's request,make a good faith effort to correct any
error brought to its attention after the ninety(90)day time period set forth in 6.1 or 6.3 has expired.
7. REPRESENTATIONS, WARRANTIES AND COVENANTS
7.1 Each Party represents that it is free to enter into this Agreement and that by doing so it will not breach
or otherwise impair any other agreement or understanding with any other person,corporation or entity.
TIAA further represents,warrants and covenants that:
a. It has full power and authority under applicable law,and has taken all action necessary,to enter
into and perform this Agreement,and that the person executing this Agreement on its behalf is
duly authorized and empowered to execute and deliver this Agreement;
b. This Agreement,when executed and delivered,shall constitute the valid,legal and binding
obligation of TIAA,enforceable in accordance with its terms;
C. TIAA is a stock life insurance company duly organized,txisting and in good standing under the
laws of the State of New York;and
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The City further represents,warrants and covenants that:
d. It has full power and authority under applicable law,and has taken all action necessary,to enter
into and perform this Agreement,and that the person executing this Agreement on its behalf is
duly authorized and empowered to execute and deliver this Agreement;and
e. This Agreement,when executed and delivered,shall constitute the valid,legal and binding
obligation of the City, enforceable in accordance with its terms.
f. In the event TIAA or its affiliates or subsidiaries provide the City with communications marked
"institutional use"only,the City agrees that such materials are for its use and not intended for use
with or distribution to Participants. The City agrees not to distribute such materials to
Participants,unless required by law.
8. FEES & COMPENSATION FOR SERVICES
8.1 TIAA's annual revenue requirement for the services under this Agreement is 0.08%(8 basis points
multiplied by plan assets equals,the"Revenue Requirement")per Plan. TIAA's Revenue Requirement
for the Plan(s)will remain in effect for a five(5)year period beginning April 1,2019(ending March
31,2024)(the"Revenue Requirement Term").
Where the City with respect to a Plan maintains a balance in and makes active contributions to any of
the mutual funds,other investment vehicles,and/or TIAA-CREF annuity contracts recordkept on
TIAA's platform,TIAA will compare the Revenue Requirement to the revenue generated by such Plan
on a quarterly basis to determine if the Plan generated sufficient revenue to meet TIAA's Revenue
Requirement("Reconciliation Process").TIAA will provide the City a Reconciliation report accessible
on P1anFocus,TIAA's administrative web service,which will provide the results of the Reconciliation
Process.The revenue generated by a Plan that is considered by the Reconciliation Process to pay for
TIAA's Revenue Requirement for that Plan may be attributable to the following:
Investments that provide Revenue Sharing Payments:
The City understands that certain proprietary and non-proprietary mutual fund investments may make
Revenue Sharing Payments'to TIAA as a record keeper.A Revenue Sharing Payment is money paid
from a mutual fund's expense ratio,or by a fund's investment manager,distribution company or
transfer agent from their revenues to a plan record keeper for keeping track of the ownership of the
mutual fund's shares and other shareholder services.Any revenue shared by an investment provider is
included as part of each of their investment's expense ratio and is not in addition to the published
expense ratios.
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The City agrees that the amount of such Revenue Sharing Payments shall be used in the Reconciliation
Process to satisfy the Plan Revenue Requirement.In addition,for those investments that provide
revenue greater than 0.115%(11.5 basis points)such excess revenue shall be credited to the specific
investments held in each Plan participant's and beneficiary's Plan accounts("Participant Accounts")
that generated such revenue sharing credits("Investment Level Credit"). The Investment Level Credit
shall be based upon the participant's and beneficiary's average daily balance and processed in arrears
with the first credit occurring on June 28,2019,and quarterly thereafter.
The current schedule of investments and their respective Revenue Sharing Payment amounts are listed
in Schedule B,as amended from time to time.Revenue Sharing Payments are subject to change at the
election of the fund company.In no event shall such changes to Revenue Sharing Payments change
TIAA's Revenue Requirement as set forth above.
8.2 In the event that the Reconciliation Process determines that the Plan(s)generated revenue in excess of
TIAA's Revenue Requirement,TIA.A shall credit the Plan(s)Revenue Credit Account in the amount of
the excess.A Revenue Credit Account is a suspense account held under the terms of the Plan which is
funded with excess revenue generated from that Plan.
The Revenue Credit Accounts may only be used either to pay direct,reasonable and necessary Plan
expenses which the Plan(s)are authorized to pay or to provide benefits for Plan participants and
beneficiaries in the form of plan servicing credits. Such credits can be paid to Plan participants'
accounts,with at least thirty(30)days'Notice from the City to TIAA prior to the plan year end,in a
method elected by the City provided that TIAA can administer such City election and provided that
TIAA determines,in its sole discretion,that the elected method will not violate applicable law.
Payments from Revenue Credit Accounts directly to the City vvll be made only if the following
procedures are followed:
1. Legal counsel for the City shall provide,in writing,assurance to TIAA that such legal counsel
has reviewed the reimbursement arrangement for plan expenses to be paid directly to the City and
that in its opinion the program for expense reimbursement,as structured,is set up in accordance
with the Plan and state law and covers expenses that would not have been incurred by the City
but for the retirement plan(e.g.,no overhead or settlor expenses,are covered). This will be a
onetime certification and will be effective for the duration of the Revenue Requirement Term.
2. Prior to each payment the City shall provide TIA.A with a written certification that the expenses
to be paid meet the requirement that they are reasonable in amount, necessary for the
administration of the Plan, are in accordance with Plan terms and would not have been incurred
but for the Plan and are expenses that TIAA can pay in accordance with state law.
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The City represents that payments from Revenue Credit Accounts shall be used to reimburse direct,
reasonable and necessary expenses of the Plan(s)that the Plan(s)are authorized to pay or to provide
revenue credits to Plan Participants Accounts as stated above.No payments shall be made directly to
the City or the Named Fiduciary of the Plan(s)without adherence to the above requirements.For
payments made directly to a Plan service provider,TIAA shall facilitate transactions to cover
reasonable and necessary Plan expenses that each Plan itself could pay.To establish a service provider
for reimbursement,the City shall provide a W-9 to TIAA.Newly established service providers shall be
reimbursed through electronic funds transfer(EFT)means only.In addition,the City is responsible for
any applicable tax-withholding and reporting(e.g., 1099-MISC tax reporting).The service provider
invoice must be submitted along with detailed payment instructions.The City agrees to utilize
P1anFocus,TIAA's administrative web service to manage their Revenue Credit Accounts including
establishing service providers,providing a W-9,and submitting reimbursement requests. Once
instructed through PlanFocus,payments shall be made directly to the plan service provider within an
administratively feasible period of time and no later than thirty(30)days after the date the instructions
were received.
8.3 In the event that the Reconciliation Process determines that a Plan did not generate sufficient revenue to
meet TIAA's Revenue Requirement and therefore results in a shortfall,the City understands and agrees
that TIAA shall invoice the City for such shortfall and the City agrees to pay such invoice within thirty
days of receipt.
8.4 If,in the good faith determination of both parties the assumptions and terms as determined above have
changed substantially,the parties agree to revise this section.The City and TIAA will amend this
section and any additional agreements in order to reflect the new Revenue Requirement that will be
used for the Reconciliation Process.Notwithstanding the foregoing,TIAA agrees to give the City sixty
(60)days advance notice prior to requesting such a revision.In the event the Revenue Requirement
Term expires and a new Revenue Requirement and/or Revenue Requirement Term has not been
established,the terms of this Section 8 will continue until the effective date of the new Revenue
Requirement and/or Revenue Requirement Term.
8.5 For the purpose of this Agreement,the table below details each Legal Plan and their associated TIAA
identification numbers that will be utilized for the Reconciliation Process under this Section 8:
Legal Plan Name I TIAA Identification Numbers
City of Fort Worth 457 Deferred Compensation Plan 1406425
8.6 Other Fee Assessments not considered in Reconciliation Process include:
The City understands and accepts that certain fees and commissions will apply to the TIAA Brokerage
Accounts. Such fees and commissions shall be listed in the TIAA Self-Directed Brokerage Account
Customer Agreement and,pursuant to the Agreement,such fees and commissions will be subject to
change. If such fees or commissions are changed,TIAA will provide the Plan Administrator with 60
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days prior written notice. Certain minimum balance and minimum investment amounts may also be
required pursuant to the terms of that Agreement.If such fees cannot be paid from the Self Directed
Brokerage Account itself,they may be paid from the participant's or beneficiary's other Plan accounts
pursuant to the terms of the Customer Agreement.In addition,the City understands,with respect to
TIAA's Revenue Requirement as set forth above,that the assets in a TIAA Brokerage Account are
counted as Plan assets but any fees and commissions collected under a TIAA Brokerage Account
Agreement shall not count for purposes of meeting a Plan's Revenue Requirement.
9. MAINTENANCE OF RECORDS
TIAA agrees that the books,records,accounts,ledgers,documents,and other compilations of data(whether
written,electronic,computer related or otherwise)collected and maintained by TIAA for the City and/or the
Plan(s)under any provision or requirement of this Agreement(the"Records")are the property of the City.
During the term of this Agreement,TIAA will at all times cooperate with and grant the City or its designee
reasonable access to the Records during TIAA's normal business hours.If any litigation,claim,negotiation,
audit,or other action involving the Records is commenced prior to the expiration of the applicable retention
period,both TIAA and the City shall retain all Records until completion of the action and resolution of all
issues resulting therefrom.Upon the expiration or termination of this Agreement,TIAA shall provide Records
to the City upon such schedule and in such form or format as the City and TIAA agree is reasonable.
10. INDEMNIFICATION AND LEGAL ACTIONS
10.1 If any person or entity threatens to commence or commences any action against TIAA or the City,or
their respective employees,officers,directors,agents,affiliates and subcontractors or related persons or
organizations,with respect to the performance of their duties and obligations under this Agreement,
then TIAA or the City,as the case may be,shall promptly give notice thereof to the other party to this
Agreement.Each party shall be entitled,on its own behalf,and at its own expense,to assume control of
its defense of such action with counsel selected by that party. Without the prior written consent of the
other party,which consent shall not be withheld unreasonably,each party may not settle or compromise
the liability of the other party in such action,or consent to or permit the entry of any judgment in
respect thereof,unless in connection with such settlement,compromise or consent the other party
receives from such claimant an unconditional release from all liability in respect of such claim.
10.2 Notwithstanding anything to the contrary herein and in this Section 10,TIAA shall expressly
indemnify,defend and hold harmless any of the City Parties from all,loss,damage,costs,
charges,liability penalties,fines or expense,including without limitation,reasonable
attorneys' fees and accountants' fees and disbursements that may be incurred by,imposed
upon,or asserted against any of the City Parties,on account of any claim or action at law or in
equity against any of the City Parties to the proportionate extent that it results from the
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negligence,errors, omissions or wrongdoing of the Custodian, its employees,agents,
subcontractors and affiliates under that certain Custodial Account Agreement for a 457(b)Plan
between the City and TIAA,FSB,entered into on or about the effective date of the Original
Agreement.
10.3 The provisions of this Section 10 and the indemnities granted by TIAA in this Section shall survive the
termination of this Agreement for any claims that arise from actions taken by the Parties during the term
of the Agreement..
11. CONFIDENTIALITY; CITY/ PLAN(S) NAME
11.1 City is a government entity under the laws of the State of Texas and all documents held or maintained
by City may be subject to disclosure under the Texas Public Information Act.To the extent the
Agreement requires that City maintain records in violation of the Act,City hereby objects to such
provisions and such provisions are hereby deleted from the Agreement and shall have no force or effect.
In the event there is a request for information marked Confidential or Proprietary,City shall promptly
notify TIAA.It will be the responsibility of TIAA to submit reasons objecting to disclosure.A
determination on whether such reasons are sufficient will not be decided by City,but by the Office of
the Attorney General of the State of Texas or by a court of competent jurisdiction.
11.2 With the exception of section 11.1 above,TI .A and the City recognize and acknowledge that,by
entering into this Agreement,each Party may have access to certain information of the other Party that
is confidential and constitutes valuable,special and unique property of that other Party. The Parties
agree that they will not at any time,either during or for a period of five(5)years following the
expiration or termination of this Agreement,disclose confidential information to any third party,or use,
copy or permit the transmittal of confidential information to any third party,without the other Party's
express prior written consent.Notwithstanding the foregoing,consent is not required in connection with
(i)TIAA's disclosure,use,copy or transmittal of confidential information to third parties to the extent
TIAA deems necessary to provide the Contracted Services,(ii)disclosure of the terms of this
Agreement by the Parties to their regulators,legal counsel,accountant or financial advisors(none of
whom will be associated or affiliated in any way with the other Party or any of its affiliates), and(iii)
disclosure that is required by law.Unauthorized disclosure of the terms of this Agreement will be a
material breach of this Agreement and will provide the non-breaching Party the option of pursuing all
remedies under this Agreement and at law and equity.
11.3 All payroll,employee,and Participant information received by TIAA under this Agreement shall be
treated as confidential information and shall be handled by TIAA in accordance with applicable law,
TIAA's privacy policy,the terms of the Plan,and in accordance with the requirements of this Agreement.
11.4 Notwithstanding anything herein to the contrary,no obligation or liability shall accrue hereunder with
respect to any confidential information that:
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a. was in the public domain prior to the date of this Agreement or subsequently came into the public
domain through no act of the recipient Party;or
b. was lawfully received by the recipient Party from a third party free of any obligation of
confidentiality to such third party;or
c. was already in the lawful possession of the recipient Party prior to receipt thereof from the
disclosing Party.
11.5 Subject to the express written consent of the City,TIAA shall have the non-exclusive and non-
transferable right to use the name of the City and the Plan(s)solely in connection with rendering
Contracted Services.Any material,including electronic,print,or other media,in which the City's or the
Plan(s)name may be used shall be submitted to the City in hard copy or electronic copy for review and
approval prior to use by TIAA.Notwithstanding the foregoing or any other provision of Section 11,the
City(i)agrees that TIAA may include the names of the City and the Plan(s)in any material or
presentation that is specifically prepared and used in connection with a process relating to a request for
proposal or procurement solicitation from a non-for-profit or governmental entity("RFP-Related
Disclosure"),and(ii)acknowledges that no prior review or approval is required in connection with such
RFP-Related Disclosure.For the avoidance of doubt,none of a general solicitation,advertising,or press
release shall constitute RFP-Related Disclosure. Upon termination of this Agreement,TIAA agrees to
immediately discontinue use of the City and the Plan names.
12. WAIVER
The failure of either TIA.A or the City at any time to require performance of any provisions hereof will in no
manner affect its right at a later time to enforce such provision and will not act as a waiver thereof.
13. NOTICE
Any notices that may be required under this Agreement shall be given in writing and delivered personally or
mailed by certified mail or courier service to the other Party at the following address or such other address as
each Party may give notice to the other. In addition to the methods of providing notice as described herein,any
notice required under Section 6.1 may be given by electronic transmission including by facsimile or electronic
mail.
If to TIAA,to:
Client Agreement Team
TIAA
730 Third Ave-26t'floor
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Attention:Director Institutional Client Services
If to the City,to:
City:Assistant City Manager for the Human Resources Department
City Manager's Office
City of Fort Worth
1000 Throckmorton Street
Fort Worth,TX 76102
14. EFFECTIVENESS; TERMINATION
This Agreement shall become effective as of the date set forth above.The City may remove TIAA as record
keeper upon ninety(90)days prior written notice to TIAA. TIAA may resign as record keeper upon ninety
(90)days prior written notice to the City.
15. APPLICABLE LAW
This Agreement shall be construed,and the provisions hereof interpreted under,in accordance with the laws
of the state or other jurisdiction in which the City was organized or established("Jurisdictional Venue"), as
applicable,without regard to such Jurisdictional Venue's principles regarding conflicts of law.
16. COMPLETE AGREEMENT; MODIFICATIONS
This Agreement, including applicable exhibits,embodies the entire agreement between the Parties and
supersedes all prior agreements and documents relating to the subject matter of this Agreement. All
amendments to this Agreement must be in writing and signed by both Parties.
17. COUNTERPARTS
This Agreement may be executed simultaneously in two or more counterparts,each of which taken together
shall constitute one and the same Agreement.
18. SEVERABILITY
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If any provision of this Agreement shall be held or made invalid by a court.decision,statute,rule or otherwise,
the remainder of this Agreement shall not be affected thereby.
19. SUCCESSORS AND ASSIGNS
This Agreement will be binding upon,inure to the benefit of,and be enforceable by the respective successors.
of the Parties. This Agreement will not be assignable by any Party hereto without the written consent of the
other Party.
20. NON-EXCLUSIVITY
Each of the Parties acknowledges and agrees that this Agreement and the arrangements described herein are
intended to be non-exclusive and that each of the Parties is free to enter into similar agreements and
arrangements with other entities.
21. RIGHT TO AUDIT
TIAA agrees that City shall,until the expiration of three(3)years after expiration or termination of the
Agreement,have access to and the right to examine any directly pertinent books,documents,papers and
records of TIAA involving transactions relating to the Agreement.TIAA agrees that City shall have access
during normal working hours to all necessary TIAA facilities and shall be provided adequate and appropriate
workspace in order to conduct audits in compliance with the provisions of this section.City shall give TIAA
reasonable advance notice of intended audits.
22. GOVERNMENTAL POWERS
Both Parties agree and understand that the City does not waive or surrender any of its governmental powers
by execution of this Agreement.
23. TEXAS PUBLIC INFORMATION ACT
TIAA understands and agrees that the City is subject to the Texas Public Information Act. TIAA for itself and
its officers,agents,employees,independent contracts,contractors,or subcontractors further agrees that it shall
treat all information provided to it by the City as confidential and shall not disclose any such information to
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any third party without the prior written approval of the City. Company further agrees that City shall have
access to anything that is deemed public information held in the possession of Company that City may be
obligated by law to provide to the public.
24. TERM
24.1 The Term of this Agreement shall begin April 1,2019 and end April 1,2022("Initial Term").
24.2 In addition to the Initial Term,there shall be two options to renew this Agreement for terms of one(1)
year each,unless earlier terminated as provided herein,each a"Renewal Term."Renewal shall occur
automatically unless City or TIAA provides the other party with thirty(30)days written notice of its
intent not to renew. The Initial Term plus any and all Renewal Terms are collectively herein referred to
as the"Term."
25. NON-DISCRIMINATION
TIAA, in the execution, performance or attempted performance of this Agreement, will not discriminate
against any person or persons because of disability, age, familial status, sex, race, religion, color or national
origin,nor will TIAA permit its officers,agents, employees, independent contractors, or subcontractors to
engage in such discrimination.
This Agreement is made and entered into with reference specifically to Chapter 17,Article III, Division 3,
of the City Code of the City of Fort Worth ("Discrimination in Employment Practices"), and TIAA hereby
covenants and agrees that it,its agents,employees and subcontractors have fully complied with all
provisions of same and that no employee or employee-applicant has been discriminated against by either
TIAA,its agents,employees or subcontractors.
26. FISCAL FUNDING
In the event no funds or insufficient funds are appropriated by the City in any fiscal period for any services
to be provided hereunder,City will notify TIAA of such occurrence and this Agreement shall terminate on
the last day of the fiscal period for which appropriations were received without penalty or expense to City of
any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds shall have
been appropriated.
27 VENUE AND JURISDICTION.
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Should any action, whether real or asserted, at law or in equity, arise out of the execution, performance,
attempted performance of this Agreement,venue for said action shall lice in Tarrant County,Texas,
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