ERS_3(38)_Agreement_Costa_Mesa_Sanitary_District_08_01_251
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INVESTMENT ADVISORY AGREEMENT
This Advisory Agreement (this “Agreement”) is made and entered into by and between Envestnet Retirement Solutions, LLC
(“ERS”) and the Plan Sponsor listed below.
This Agreement is effective as of the date of the last signature below (the “Effective Date”). The services will not begin until ERS
has received quarter-end Plan data from the Recordkeeper identified below.
RETIREMENT PLAN INFORMATION
Plan Name:
Plan Sponsor (Entity Name):
Name: Title:
Phone Number: Email:
Address:
City: State: Zip Code:
FINANCIAL ADVISOR INFORMATION
Name: Title:
Phone Number: Email:
Practice/Firm Name: Broker Dealer:
Address:
City: State: Zip Code:
RECORDKEEPER INFORMATION
Name of Recordkeeper Product/Platform:
Plan ID: Contact Name:
Contact Phone Number: Email:
Please select services (Required):
☐3(21) Fund Line-Up Services. Plan Sponsor hereby appoints ERS as an “investment adviser” (as defined in
Section 3(21)(A)(ii) of ERISA) with respect to the performance of 3(21) Services as described in Exhibit A. The
3(21) Services are called the “Non-Discretionary Fiduciary Services” in this Agreement.
☐3(38) Fund Line-Up Services. Plan Sponsor hereby appoints ERS as an “investment manager” (as defined in
Section 3(38) of ERISA) with respect to the performance of the Fund Line-Up Services as described in the
3(38) Services of Exhibit A. The 3(38) Services are called the “Discretionary Fiduciary Services” in this
Agreement.
☐Asset Allocation Model Services. Plan Sponsor hereby appoints ERS as an “investment manager” (as defined
in Section 3(38) of ERISA) with respect to the performance of the Asset Allocation Model Services as
described in the 3(38) Services of Exhibit A.
Costa Mesa Sanitary District 457b Plan
Costa Mesa Sanitary District
SCOTT CARROLL General Manager
949-645-8400 scarroll@cmsdca.gov
290 Paularino Avenue
Costa Mesa CA 92626
Empower
100433 Marcelia Johnson
800-695-4952 x 40458 Myteam.g@empower.com
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Reports specific to the Plan Sponsor shall be delivered to (If different from above):
Plan Sponsor Financial Advisor Other:
Plan Sponsor acknowledges receipt of, and agreement to, the contents of the documents (also available on the ERS website):
o Terms & Conditions
o Investment Policy Statement
o Revenue Policy Statement
o Investment Evaluation Criteria &
Investment Categories
o Current form 408(b)(2)
ADDITIONAL TERMS, CONDITIONS AND ACKNOWLEDGMENTS
Plan Sponsor agrees to the following terms and conditions:
1. ERS Fiduciary Services
(a) For 3(21) Investment Advice Only: ERS accepts the foregoing appointment and agrees that in
performing the Non-Discretionary Fiduciary Services it will be acting as a “fiduciary” under the
Employee Retirement Income Security Act of 1974 (“ERISA”) and offers “investment advice” (as
defined in Section 3(21)(A)(ii) of ERISA and 29 CFR 2510.3021(c)) and shall act with the care, skill,
prudence and diligence under the circumstances then prevailing that a prudent man acting in a
like capacity and familiar with such matters would use in the conduct of an enterprise of like
character and with like aims.
(b) For 3(38) Investment Management Only: ERS accepts the foregoing appointment and agrees that
in performing the Discretionary Fiduciary Services it will be acting as a “fiduciary” under ERISA and
as an “investment manager” (as defined in Section 3(38) of ERISA) and shall act with the care, skill,
prudence and diligence under the circumstances then prevailing that a prudent man acting in a
like capacity and familiar with such matters would use in the conduct of an enterprise of like
character and with like aims.
(c) Plan Sponsor acknowledges that ERS has no responsibility to provide any services related to the
following types of assets: employer securities; real estate (except for real estate funds and publicly
traded REITs); self-directed brokerage accounts; participant loans; non-publicly traded partnership
interests; other non-publicly traded securities (other than collective trusts, unitized models and
similar vehicles); or other hard-to-value securities or assets.
(d) If the Plan Sponsor selects the Non-Discretionary Fiduciary Services and appoints ERS as an
“investment adviser” (as defined in Section 3(21)(A)(ii) of ERISA): The Plan Sponsor hereby directs
the Plan’s recordkeeper, custodian and/or third party administrator (“Plan Provider”) to act in
accordance with this Agreement, including authorizing the Plan Provider to implement trade
instructions from ERS, authorizes the Plan Provider to debit and remit the payment of fees to ERS,
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and authorizes ERS to obtain Plan data from the applicable Plan Provider as may be needed to
provide the services outlined in this Agreement.
(e) If the Plan Sponsor selects the Discretionary Fiduciary Services and appoints ERS as an
“investment manager” (as defined in Section 3(38) of ERISA): The Plan Sponsor agrees that its acceptance of the terms of this Agreement constitutes the Plan Sponsor’s authorization of ERS to
determine, on a discretionary basis, the investment options under the criteria set forth in the
Guidelines selected by the Plan Sponsor, as described in Exhibit A, and to instruct the Plan’s
recordkeeper to add, remove and/or replace the Plan’s investment options as determined by ERS
within the criteria set forth in such Guidelines. Further, the Plan Sponsor hereby directs the Plan
Provider to act in accordance with this Agreement, including authorizing the Plan Provider to
implement trade instructions from ERS as may be delivered to Plan Provider from time to time.
Plan Sponsor further authorizes ERS to obtain Plan data from the applicable Plan Provider as may
be needed to provide the services outlined in this Agreement.
2. Limitations on Function
(a) For 3(21) Investment Advice Only: ERS shall not trade or otherwise exercise investment discretion
over Plan assets. Plan Sponsor will retain final decision-making authority with respect to removing
and/or replacing Plan investments. Other than the investment recommendation(s) provided to
Plan Sponsor, ERS will not have any further responsibility to communicate instructions to any third-
party, including the Plan’s recordkeeper, custodian, and/or third-party administrator. ERS will not
be liable if Plan Sponsor does not follow the recommendations made by ERS.
(b) In performing ministerial or administrative support services from time to time, on an ad hoc basis,
in furtherance of and incidental to rendering the Non-Discretionary Fiduciary Services or
Discretionary Fiduciary Services (together the “Fiduciary Services”), ERS is not acting as a fiduciary
of the Plan as defined in ERISA.
(c) In performing both ministerial or administrative support services and the Fiduciary Services, ERS
does not act as, nor has ERS agreed to assume the duties of, a trustee or the “Plan Administrator,”
as defined in ERISA, and ERS has no discretion to interpret the Plan documents, to determine
eligibility or participation under the Plan to provide participant disclosures or communications, or
to take any other action with respect to the management, administration or any other aspect of the
Plan. At no time shall ERS have custody or physical control over the Plan’s assets.
(d) The Plan Sponsor is responsible for selecting the Plan Provider. In performing Fiduciary Services,
ERS will be limited to the investment options available through the designated platform chosen by
Plan Sponsor.
(e) Plan Sponsor is responsible for determining the proper share class to utilize for the Plan. Investment
options may offer more than one “class” of shares. Each class represents the same interest in the
investment option’s portfolio; however, the plan advisor may be compensated differently
depending on what classes of shares are chosen. ERS does not make recommendations on the class
of shares utilized and, therefore, shall utilize the share classes provided by the Plan in its investment
option recommendations.
(f) ERS does not provide legal or tax advice or vote shareholder proxies.
(g) As part of the services, ERS may provide Plan Sponsor with online access to web-based reports,
service requests and information. The access and use of the web-based reports, service requests
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and information is referred to as the “Online Materials and Online Services” and is a separate and
distinct service from the services set forth herein and in Exhibit A attached hereto. Use of the Online
Materials and Online Services is governed by the Terms and Conditions, as described on the ERS
website.
3. Fees
(a) The compensation of ERS for the performance of the services is described in Exhibit B. The Plan
Sponsor hereby authorizes the Plan recordkeeper to debit and remit the payment of Program Fees
to ERS.
(b) Unless agreed to by the parties, ERS will not receive any other compensation, direct or indirect,
for its services under this Agreement or, if ERS or an affiliate receives any other compensation for
such services, ERS or the affiliate will offset that compensation against stated fees.
4. Representations, Warranties and Covenants of Plan Sponsor
Plan Sponsor represents, warrants and covenants to ERS as follows:
(a) It is the “named fiduciary” for the control or management of the assets of the Plan and for the
selection and monitoring of service providers for the Plan, in accordance with the requirements of
ERISA.
(b) The person signing the Agreement on behalf of the Plan Sponsor has all necessary authority to do so.
(c) The execution of this Agreement and the performance thereof is within the scope of the investment
authority authorized by the governing instrument and/or applicable laws. If Plan Sponsor is a
corporation, the signatory on behalf of Plan Sponsor represents that the execution of the Agreement
has been duly authorized by appropriate corporate action and agrees to provide such supporting
documentation as may be reasonably required by ERS.
(d) Upon request, Plan Sponsor shall deliver to ERS true and accurate copies of the governing plan
documents including, without limitation, any and all amendments thereto, and shall timely provide
ERS with copies of any subsequent amendments or restatements of those documents.
(e) Plan Sponsor will comply with all of the federal and state securities laws and rules that are applicable
to Plan Sponsor by virtue of the activities contemplated by this Agreement.
(f) Fiduciary Authority. The Plan Sponsor has the authority to designate investment alternatives under
the Plan and the related trust and to enter into an Agreement with third parties to assist in these and
related duties.
(g) Plan Sponsor has received and reviewed a copy of ERS’s Form ADV Part 2A and 2B and the ERS privacy
policy, which contains an explanation of ERS’s policies and procedures including those that address
actual or potential conflicts of interest or those that are designed to prevent either the compensation
or relationships from adversely affecting the services to the Plan. The Form ADV and privacy policy
also explain how the policies and procedures address such conflicts of interest and how they prevent
an adverse effect on the provision of services.
(h) The Plan and related trust permit payment of fees out of Plan assets. Plan Sponsor has evaluated
the fees to be paid to ERS (set forth in Exhibit B) and has determined that the Fees charged by ERS
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are reasonable compensation for the services to be performed by ERS and constitute permissible
expenses of the Plan.
(i) Plan Sponsor acknowledges that ERS is entitled to rely upon all information provided to ERS, whether
financial or otherwise, by Plan Sponsor or other parties. Plan Sponsor represents that all such
financial and other information provided to ERS by Plan Sponsor or its designees is true, correct and
complete in all material respects. Plan Sponsor agrees to promptly notify ERS in writing of any
material change in the financial and other information provided to ERS and to promptly provide any
such additional information as may be reasonably requested by ERS.
(j) Plan Sponsor acknowledges that use of the Online Materials and Online Services is governed by the
Terms and Conditions described on the ERS website. Plan Sponsor may direct ERS to administer instructions through the promotion of various “service requests” through the Online Materials and
Online Services. By administering directions to ERS, Plan Sponsor is representing that Plan Sponsor
has the authority to direct ERS to perform the requested services. Upon reasonable notice, Plan
Sponsor agrees to provide such documentation as reasonably necessary to demonstrate that Plan
Sponsor has the authority described within this section.
(k) If Discretionary Fiduciary Services are selected, Plan Sponsor will: (i) maintain, at its own expense,
fiduciary liability insurance coverage as necessary to comply with ERISA; (ii) name ERS as an insured
on the fidelity bond; and (iii) provide ERS with evidence of such insurance on written request. Plan
Sponsor will promptly notify ERS upon receipt of any notice of material change, cancellation or non-
renewal of the party’s insurance coverage, or a reduction of such coverage.
(l) If Discretionary Fiduciary Services are selected above, Plan Sponsor has the authority to, and by this
Agreement does authorize and direct ERS to determine, on a discretionary basis, the Plan’s
investment options based on the criteria set forth in the Guidelines as described in Exhibit A, and
Plan Sponsor further authorizes and directs ERS to instruct the Plan’s recordkeeper to add, remove
and/or replace the Plan’s investment options as determined by ERS within the criteria set forth in
such Guidelines.
(m) Plan Sponsor acknowledges and agrees that the services provided by ERS may include collective
investment trusts qualified under Rev. Rul. 81-100 and subsequent authority (“CIT”), including a CIT
for which ERS or an affiliate serves in an investment or other capacity provided that ERS and its
affiliates receive no additional compensation from any person in respect of the investment by the
Plan in such CIT. ERS may still recognize ancillary benefits with respect to investments by the Plan
in such CIT. Plan Sponsor authorizes and directs ERS to execute such agreements and take other
such actions on behalf of the Plan as may be necessary or appropriate for the Plan to participate in
a CIT, including providing to the CIT trustee the representations contemplated in Rev. Rul. 2011-01
and subsequent authority on behalf of the Plan.
5. Representations, Warranties and Covenants of ERS
ERS represents, warrants and covenants to Plan Sponsor as follows:
(a) ERS is an investment advisor registered under the Advisers Act of 1940. ERS has made all notice
filings and paid all fees, if any, under applicable state securities laws as its current activities require
it to make or pay. ERS will obtain or maintain all such registrations, file all such notices and pay all
such fees, if any, for as long as required under applicable law. ERS will promptly notify Plan Sponsor
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if it does not continue to be registered as an investment advisor with the Securities and Exchange
Commission (the “SEC”).
(b) ERS will comply with all of the federal and state securities laws and rules that are applicable to ERS
by virtue of the activities contemplated by this Agreement.
(c) ERS has the full power and authority to execute and perform this Agreement, and the execution and
performance of this Agreement by ERS will not violate any law or agreement to which ERS is a party
or by which it is otherwise bound. When executed by a duly authorized officer, this Agreement will
be enforceable against ERS in accordance with its terms.
(d) ERS has delivered to Plan Sponsor a copy of its current Form ADV Part 2A and 2B. As of the date
hereof, all amendments to Form ADV which are legally required have been made and filed with the
SEC. ERS will furnish Plan Sponsor promptly with any amendments to Part 2A of ERS’s Form ADV.
(e) In fulfilling its obligations hereunder, including, but not limited to, providing the Online Materials and
Online Services, ERS will not infringe upon the intellectual property rights of any third party.
Notwithstanding the above, ERS makes no representation and provides no warranty that any
materials provided to ERS by a third-party provider for inclusion will not infringe upon the intellectual
property rights of any third party.
(f) It will disclose all information related to this Agreement and any compensation or fees received
under the Agreement that is reasonably requested by Plan Sponsor in order to enable Plan Sponsor
to comply with the reporting and disclosure requirements of Title I of ERISA and the regulations,
forms and schedules issued thereunder.
6. Relationship Not Exclusive
Plan Sponsor understands that ERS and its affiliates may perform, among other things, retirement plan
investment consulting, retirement plan fiduciary consulting, retirement plan design consulting, plan
administration and record keeping services, and portfolio management services for other clients. Plan
Sponsor recognizes that ERS or its affiliates may give advice and take action in the performance of its duties
for such other clients (including those who may have similar retirement plan arrangements as Plan Sponsor)
that may differ from advice given, or in the timing and nature of action taken, with respect to Plan Sponsor.
Nothing in this Agreement shall be deemed to impose on ERS, or any of its affiliates, any obligation to advise
Plan Sponsor with respect to the Plan, including the services under this Agreement, in the same manner as
it may advise any of its other clients. Plan Sponsor also acknowledges that ERS and its affiliates may, by
reason of its other such activities as described above, from time to time acquire confidential information.
Plan Sponsor acknowledges and agrees that ERS is unable to divulge to the Plan Sponsor or any other party,
or to act upon, any such confidential information with respect to its performance of this Agreement.
7. Disclosure of Information
(a) Plan Sponsor and ERS each agree that with respect to any confidential information or documents
that are furnished by the other party hereto, such information shall be kept in strict confidence and
shall not be used, directly or indirectly, for any purpose other than that for which it was furnished.
The foregoing notwithstanding, such confidential information shall not include any information that:
(i) was known to the recipient at the time it received the information; (ii) was or became publicly
known through no wrongful act of the recipient; (iii) was received from a third party without similar
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restrictions and without breach of this agreement; (iv) was developed independently by the
recipient; or (v) was approved for release by written authorization of a party authorized to disclose
such information.
(b) The parties shall establish and maintain safeguards against the unauthorized access, destruction, loss
or alteration of such confidential information in their control which are no less rigorous than those
maintained by a party for its own information of a similar nature.
(c) Neither ERS nor Plan Sponsor will use the other’s name, logo or trademark without the other party’s
written consent. Under no circumstances shall either party use the other’s name in such a manner
as to create the impression that the relationship created or intended between them is anything other
than what is described in this Agreement.
(d) The foregoing notwithstanding, either party may use or disclose the other party’s confidential
information to the extent such use or disclosure is required by applicable law, regulation or court
order; provided, however, that prior to any such disclosure, the disclosing party shall notify the other
party and provide the other party an opportunity, if possible, to prevent disclosure, which may
include seeking a protective order. The disclosing party will cooperate in any such proceeding.
(e) Subject to ERS’ compliance with the other applicable provisions of this Agreement, ERS may compile,
distribute and otherwise utilize Aggregated Data (defined below) derived from the ERS Platform and
ERS Services. “Aggregated Data” shall mean data aggregated with similar data of ERS’ other
customers that is compiled as a result of use of the ERS Platform which is of a general, non-
identifiable nature and in no cases containing or capable of identifying personally identifiable
information or information which may identify (i) advisor, an advisor representative or a client of
advisor; or (ii) the data of the foregoing, whether alone or as a whole.
8. Regulation S-P
The parties acknowledge that financial institutions are subject to certain laws and regulations regarding the
privacy and protection of consumer information, and that any receipt or use of personal information by the
parties is also subject to compliance with such laws and regulations. Accordingly, the parties agree that any
Nonpublic Personal Information, as defined in Section 248.3(t) of Regulation S-P, received from either party
shall be subject to the limitations on redisclosure and reuse set forth in Section 248.11 of such Regulation. In addition, the parties acknowledge that they have adopted policies and procedures that address
administrative, technical and physical safeguards that are reasonably designed to insure the security and
confidentiality of the information, protecting against any anticipated threats or unauthorized access to or
use of such information.
9. Termination
This Agreement shall continue in force until terminated by either party upon no less than 30 days prior
written notice. The provisions of Sections 7, 8, 9, 10, 12 and 13 shall survive the termination of this
Agreement.
10. Indemnification
(a) ERS agrees to indemnify and hold Plan Sponsor harmless from any and all liabilities and claims,
including but not limited to damages, court costs, reasonable legal fees and costs of investigation,
which arise directly from ERS’s breach of its fiduciary duty, intentional misconduct or gross
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negligence with respect to the Fiduciary Services hereunder; provided, however, in no event shall
ERS be liable for any indirect, special consequential or exemplary damages with respect to its services
provided.
(b) With regard to ERS activity arising from services other than Fiduciary Services, Plan Sponsor agrees
to indemnify and hold ERS harmless from any and all liabilities and claims, including, but not limited
to, damages, court costs, reasonable legal fees and costs of investigation which directly or indirectly
are related to the Plan, its investments, expenses or other operations and administration provided
that such losses or damages are not directly caused by ERS’s intentional misconduct or gross
negligence.
(c) With regard to Fiduciary Services, Plan Sponsor agrees to indemnify and hold ERS harmless from any
such liabilities and claims, so long as they are not caused by ERS’s failure to fulfill its fiduciary duties
in the performance of the Fiduciary Services.
(d) Plan Sponsor acknowledges that ERS makes no guarantee of profit nor offers any protection against
loss of principal on any investment and that all purchases and sales of mutual funds or other
securities shall be solely for the account and risk of the Plan.
(e) If either party asserts a claim with respect to which it is entitled to indemnification under this Section,
such indemnified party shall promptly: (i) notify the indemnifying party in writing of the claim giving
rise to indemnification under this Agreement; (ii) grant the indemnifying party, at the indemnifying
party’s request, control of the defense and/or settlement of any claim, lawsuit or proceeding; and
(iii) reasonably cooperate with the indemnifying party with respect to the indemnifying party’s
defense and/or settlement efforts.. The parties agree that no claim asserted by a third party for
which indemnification from an indemnifying party is sought shall be settled without first obtaining
the written consent of the indemnifying party, which consent shall not be unreasonably withheld.
11. Notices
Except as provided for in Section 21, all notices and other communications hereunder shall be in writing,
delivered to the addresses set forth below, and shall be deemed to have been duly given: (i) if sent via
facsimile, then upon the date and time of actual receipt; (ii) if mailed first-class, registered or certified mail,
return receipt requested, postage prepaid, then upon the date and time return receipt delivery is attempted
by the U. S. Postal Service; (iii) if delivered by courier for hand-delivery, then upon the date and time of
actual delivery; or (iv) if delivered by overnight U.S. or private mail service, then upon the date and time of
actual delivery (with or without recipient signature) by the U.S. Postal Service or private delivery service
company, as applicable.
TO PLAN SPONSOR (If different from above):
TO ERS: Envestnet Retirement Solutions, LLC
1000 Chesterbrook Blvd., Suite 250
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Berwyn, PA 19312
Attention: General Counsel
Facsimile Number: (312) 827-2801
Either party may, by notice to the other, change its address for receiving such notices by giving notice to
the other party in the manner provided by this Section.
12. Governing Law
This Agreement and the interpretation and application of the provisions hereof shall be governed and
construed in accordance with the laws of Illinois, without giving effect to its choice of law provisions.
13. Arbitration Agreement
To the extent permitted by law, all controversies between Plan Sponsor and ERS, which may arise out of or
relate to any of the services provided by ERS under this Agreement, or the construction, performance or
breach of this or any other agreement between ERS and Plan Sponsor, whether entered into prior to, on or
subsequent to the date hereof, shall be settled by binding arbitration in Chicago, Illinois, under the
Commercial Arbitration Rules of the American Arbitration Association. Judgment upon any award rendered
by the arbitrator(s) shall be final and may be entered into any court having jurisdiction.
14. Entire Agreement; Amendment
(a) This Agreement, including the attached Exhibits, constitutes the entire understanding between the
parties relating to the subject matter contained herein and merges and supersedes all prior
discussions and writings between them.
(b) Amendment Process. The Agreement may also be modified, including without limitation the services
to be provided by ERS or the fees charged by ERS, in the manner set forth herein and consistent with
the procedure described in Department of Labor Advisory Opinion 97-16A.
(i) ERS may propose to increase or otherwise change the fees charged, to change the services
provided or otherwise modify this Agreement by giving Plan Sponsor reasonable advance
notice of the proposed change. The notice shall be given in the manner described in this
Agreement. The notice will (1) explain the proposed modification of the fees, services or other provisions; (2) fully disclose any resulting changes in the fees to be charged as a result of any
proposed change in the services or other changes to this Agreement; (3) identify the effective
date of the change; (4) explain Plan Sponsor’s right to reject the change or terminate this
Agreement; and (5) state that pursuant to the provisions of this Agreement, if Plan Sponsor
fails to object to the proposed change(s) before the date on which the change(s) become
effective Plan Sponsor will be deemed to have consented to the proposed change(s).
(ii) If Plan Sponsor objects to any change to this Agreement proposed by ERS, ERS shall not be
authorized to make the proposed change. In that event, Plan Sponsor shall have an additional
sixty (60) days from the proposed effective date (or such additional time beyond 60 days as
may be agreed by ERS) to locate a service provider in place and instead of ERS. If at the end
of such additional sixty (60) day period (or such additional time period as agreed by ERS), the
parties have not reached Agreement on the proposed changes, this Agreement shall
automatically terminate.
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(c) Except for the process specifically described above, neither party shall be bound by any conditions,
warrant or representation other than as expressly stated in this Agreement or subsequently set forth
in a signed amendment by both parties.
15. Severability
If any provision of this Agreement is held to be invalid, void or unenforceable by reason of any law, rule,
administrative order or judicial decision, that determination shall not affect the validity of the remaining
provisions of this Agreement.
16. Assignment
This Agreement may not be assigned by either party without the consent of the other party, except that
ERS may assign this Agreement by using a “negative consent” process whereby Plan Sponsor has no less
than 30 days to respond to a notice of intended assignment. ERS’s parent company, Envestnet, Inc., has
agreed to be acquired by affiliate vehicles managed or advised by Bain Capital Private Equity, LP and
certain minority investors expected to close in the fourth quarter of 2024. This change in control of ERS’s
parent will result in an assignment by ERS of this Agreement under the Advisers Act of 1940 (the
“Assignment”). In entering into this Agreement, Plan Sponsor consents to the Assignment without a
requirement of further notice.
17. Force Majeure
None of the parties shall be held responsible for any delay or failure to perform any part of this Agreement
to the extent such delay or failure results from any cause beyond its control and without the fault or
negligence of the party claiming excusable delay, such as acts of God, acts of war or terrorism, extraordinary
acts of the United States of America or any state, territory or political subdivision thereof, fires, storms,
floods, epidemics, riots, work stoppages, strikes (work stoppages and/or strikes of any of the parties to this
agreement are specifically excluded from the language of this section), embargoes, computer viruses,
unauthorized access, systems failure, failure or technical difficulties with software, hardware or other
equipment, downtime for hardware and software maintenance, unusual volumes of traffic, failure of
communications lines, telephone or other interconnect problems, theft, government restrictions, exchange
or market rulings, extreme market volumes or volatility, suspension of trading (whether declared or
undeclared), failure of utility services, adverse weather or events of nature.
18. Waiver
Either party's failure to enforce any provision or provisions of this Agreement shall not in any way be
construed as a waiver of any such provision or provisions as to future violations thereof, nor prevent that
party thereafter from enforcing each and every other provision of this Agreement. The rights granted the
parties herein are cumulative and the waiver by a party of any single remedy shall not constitute a waiver
of such party's right to assert all other legal remedies available to him or it under the circumstances.
19. Waiver of Limitation
Nothing in this Agreement shall in any way constitute a waiver or limitation of any rights which Plan Sponsor
or Plan or any other party may have under ERISA or federal or state securities laws.
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20. Form 408(b)(2)
Plan Sponsor has received all current disclosures required by the regulations promulgated under Section
408(b)(2) of ERISA for the services provided and has determined that such disclosures satisfy ERS’s
obligations under such regulations.
21. Electronic Receipt of Documents
By signing below, Plan Sponsor hereby agrees that ERS may deliver the Fiduciary Services, provide notices,
communication, reports and any ERS disclosure documents to Plan Sponsor and appointed Plan advisor
through the e-mail addresses provided below. Plan Sponsor is responsible for updating ERS with any Plan
advisor changes or updates. Plan Sponsor is able to receive electronic communications and agrees that
such electronic communications (unless e-mail is returned as undeliverable) shall constitute delivery. Plan
Sponsor agrees to promptly notify ERS of any need to update the e-mail provided below and until Plan
Sponsor has updated its e-mail address, ERS may utilize and rely on the contact information provided below
for the delivery of such communications reports and other documents.
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IN WITNESS WHEREOF, the parties, by their duly authorized representatives, have executed this Agreement as of
the day and year first above written:
Plan Sponsor*:
Signature:
Name:
Title:
Date:
Envestnet Retirement Solutions, LLC:
Signature:
Name:
Title:
Date:
*The Plan Sponsor is signing this Agreement both as the employer that sponsors the Plan and as the fiduciary
responsible for selecting the Plan’s investments and engaging its service providers.
Docusign Envelope ID: 54E179AC-60E5-4E79-9E2A-96FAA0B7D991
7/31/2025
General Manager
Scott Carroll
President of ERS
Erik Preus
August 1, 2025
13
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EXHIBIT A
3(21) SERVICES DESCRIPTION
ERS is being retained to perform the following services:
ERS will provide the responsible plan fiduciary (“RPF”) (or an authorized delegate thereof) an investment policy
statement (“IPS”) template, available on the ERS website.
Fund Line-Up Services
The IPS will set forth the minimum number of general investment options and asset class categories to be offered
to Plan participants with a goal of providing a menu of investments that will allow for the creation of well-diversified
portfolios designed to provide for long-term appreciation and capital preservation through a mix of equity and fixed
income exposures. If ERS’s due diligence methodology changes, such changes shall be stated in the Quarterly
Monitoring Report and shall make a copy of the most recent IPS methodology available on the ERS website and upon
request from Plan Sponsor.
ERS will perform the following services, which constitute the Non-Discretionary Fiduciary Services: (i) ERS will cross-
reference Plan investment option information with ERS’s methodology, but no less frequent than quarterly, other
than retirement income products, in order to determine the appropriateness of Plan investment options; and (ii)
ERS will provide a quarterly electronic communication to Plan Sponsor that confirms that the Plan investment option
review resulted in either (1) a recommendation to maintain the existing Plan investment options, or (2) a
recommendation to replace or add one or more of the Plan investment options with an alternative investment.
Other than the investment recommendation provided to Plan Sponsor, ERS will not have any further responsibility
to communicate instructions to any third-party, including the Plan’s recordkeeper, custodian, and/or third-party
administrator. ERS will not be liable if Plan Sponsor does not follow the recommendations made by ERS. ERS does
not provide portfolio asset allocation advice under this service.
For the avoidance of doubt, in performing the Non-Discretionary Fiduciary Services, ERS will be limited to the
investment options available through the Plan recordkeeper’s platform chosen by Plan Sponsor.
3(38) SERVICES DESCRIPTION
ERS is being retained to perform the following services:
ERS will provide the responsible plan fiduciary (“RPF”) (or an authorized delegate thereof) an investment policy
statement (“IPS”) according to which ERS shall provide advisory services, available on the ERS website. RPF
acknowledges that it has adopted the IPS.
Fund Line-Up Services
The IPS will set forth the minimum number of general investment options and asset class categories to be offered
to Plan participants with a goal of providing a menu of investments that will allow for the creation of well-diversified
portfolios designed to provide for long-term appreciation and capital preservation through a mix of equity and fixed
income exposures. If ERS’s due diligence methodology changes, such changes shall be stated in the Quarterly
Monitoring Report and shall make a copy of the most recent IPS methodology available upon request from Plan
Sponsor.
Docusign Envelope ID: 54E179AC-60E5-4E79-9E2A-96FAA0B7D991
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ERS will perform the following services, which constitute the Discretionary Fiduciary Services: (i) ERS will review the
investment options available through the plan and will notify the plan’s recordkeeper as to ERS’s instructions to add,
remove and/or replace specific “core” investment options to be offered to plan participants that meet the criteria
set forth in the IPS; and (ii) ERS will monitor the investment options and, on a regular basis, provide instructions to the Plan’s recordkeeper to remove and/or replace investments that no longer meet the IPS criteria. For the
avoidance of doubt, in performing the Discretionary Fiduciary Services, ERS will be limited to the investment options
available through the Plan recordkeeper’s platform and will have no responsibility for selecting the investment
options included in the Plan recordkeeper’s platform. In performing the Discretionary Fiduciary Services, ERS will
act as a fiduciary under ERISA and will serve as an “investment manager” as defined in Section 3(38) of ERISA. ERS
does not provide portfolio asset allocation advice under this service.
ERS will retain final decision-making authority with respect to removing, adding and/or replacing investments in the
Plan’s lineup, and the RPF will not have responsibility to communicate instructions to any third-party, including the
plan’s recordkeeper, custodian and/or third-party administrator.
Asset Allocation Model Service
In conjunction with the Fund Line-Up Service, under the Asset Allocation Model Service, ERS will perform the
additional Discretionary Fiduciary Services as follows. Based on ERS’s capital market assumptions, ERS will construct
and maintain diversified asset allocated portfolios to be populated with the available investment options. ERS shall
review and adjust asset allocations as necessary on quarterly basis.
Docusign Envelope ID: 54E179AC-60E5-4E79-9E2A-96FAA0B7D991
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EXHIBIT B
PROGRAM FEES
3(21) Fund Line-Up Services 3(38) Fund Line-Up Services
Plan Assets Program Fee
$0 mm - $100 mm 2bps $100 mm + 1bps
Plan Assets Program Fee
$0 mm - $100 mm 5bps $100 mm + 2bps
3(21) Fund Line-Up Services and Asset Allocation Model Services 3(38) Fund Line-Up Services and Asset Allocation Model Services
Plan Assets Program Fee
$0 mm - $100 mm 6bps
$100 mm + 2bps
Plan Assets Program Fee
$0 mm - $100 mm 8bps
$100mm + 4bps
While certain assets (as described herein) may be excluded from the Fiduciary Services, the Program Fees shown
above will be applied to the full value of all assets in the applicable Plan, as the Plan Sponsor shall receive ancillary
administrative benefits such as reporting and analytics on all Plan assets.
The fee schedule listed above is a blended rate. Assets in each tier will be billed at the rate shown, resulting in an
overall blended rate for multi-tier assets.
The default fee calculation method for the ERS services (the “Program Fee”) is to bill in arrears on a quarterly basis
based on the value of Plan assets (including interest paid or accrued) on the last business day of the prior calendar
quarter; provided, however, that the calculation and remittance methodology of the Program Fee may vary based
upon the recordkeeper utilized by the Plan Sponsor. In the event of conflicting methodology, the billing
methodology of the recordkeeper utilized by Plan Sponsor shall prevail. ERS will perform a good faith fair market
value of the Plan assets based on the applicable recordkeeper.
Plan Sponsor acknowledges and agrees that it is Plan Sponsor’s responsibility to verify the accuracy of such fee
calculation and that the recordkeeper will not determine whether fees are properly calculated.
Docusign Envelope ID: 54E179AC-60E5-4E79-9E2A-96FAA0B7D991