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HomeMy WebLinkAboutCC RES 2015-02RESOLUTION NO. 2015- 02 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, AMENDING EXISTING DEFINED CONTRIBUTION 457 PLAN WITH NATIONWIDE RETIREMENT SOLUTIONS CORPORATION AGREEMENT WHEREAS, the City of Palm Desert has employees rendering valuable services; and WHEREAS, the City of Palm Desert first adopted its deferred compensation in 1988 administered by the Nationwide Retirement Solutions Corporation Employer Plan Number 0037064001; and WHEREAS, over the years the plan has been amended to reflect changes in Federal law and the City's benefits structure; and WHEREAS, the City of Palm Desert will permit loans under the plan as provided in Article XIII of the Adoption Agreement and in the executed Loan Administrative Procedures and ProAccount — Plan Sponsor Agreement; and NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Palm Desert, California approve the attached Loan Administrative Procedures and ProAccount — Plan Sponsor Agreement; and PASSED, APPROVED AND ADOPTED at the regular meeting of the Palm Desert City Council, held on this 8th day of January, 2015, by the following vote to wit: AYES: HARNIK, JONATHAN, SPIEGEL, TANNER, and WEBER NOES: NONE ABSENT: NONE ABSTAIN: NONE Susan Marie Weber, Mayor 4 I I I I I I 10?" I lir Olkow- RA� HELLE D. KLASSEN, C CLERK CITY OF PALM DESERT, CALIFORNIA RESOLUTION NO. 2015-02 [This page has intentionally been left blank.] Resolution No. 2015-02 GOVERNMENTAL PLANS 457(b) PLAN PARTICIPANT LOAN ADMINISTRATIVE PROCEDURES Nationwide Retirement Solutions, Inc. ("NRS") agrees to administer loans in accordance with the term of these Participant Loan Administrative Procedures as approved by the Sponsor of the Plan. The Sponsor is encouraged to consult with its legal advisors in determining whether the procedures identified herein are appropriate for its Plan. The Sponsor acknowledges that NRS may need to make changes from time -to -time to the administrative procedures set forth herein and may request amendments to the Plan documents to maintain compliance of the loan program with Internal Revenue Service guidelines. In such a case, NRS will provide the Sponsor with timely notice of such changes as they become necessary. The following administrative procedures shall govern participant loans offered in the Sponsor's 457(b) Plan: 1. Loan Administration. Sponsor delegates to NRS certain administrative duties regarding the administration of loans from the Plan, which are set forth herein and which may be modified by NRS upon timely notice to Sponsor. 2. Loan Eligibility. Any Plan participant who is an active employee at the time a loan is made is eligible for a loan from the Plan. Each participant is entitled to one (1) loan from the Plan at any time, and may not take out additional loans until the prior loan has been repaid in full. In addition, a participant who has defaulted on a previous loan shall not be eligible for another loan from the Plan until all defaulted loans are repaid in full, including accrued interest and fees. 3. Loan Application and Loan Agreement. In order to receive a loan from the Plan, an eligible participant must complete a loan application and return it to NRS. A loan application fee of $50.001 will be deducted from the participant's account(s) after the loan has been funded by the participant's account(s). Before a loan is issued, the participant must enter into a legally These fees and minimums are subject to change by NRS upon reasonable notice to the Plan Sponsor. Loan fees will appear as administrative charges on Participant Statements. NRN-0854AO 05/2014 1 Resolution No. 2015-02 enforceable loan agreement as provided by NRS on behalf of the Plan. If the Sponsor permits loans for the purchase of the participant's principal residence, the participant will be required to sign a primary residence certificate form and provide NRS with sufficient additional documentation to support the purchase of a principal residence. A Plan loan shall be made only from the Before -Tax Deferral Account or, if applicable, Rollover Accounts that are not attributable to after-tax rollovers (including rollovers of Roth accounts). Loans may be withdrawn only from pre-tax balances, after tax money sources will not be included in the calculation of the Participant's account for purposes of calculating availability for a loan. Additionally, no loans will be funded from any after tax money source. To the extent that a Participant has a self -directed brokerage account, no funding from such self -directed brokerage account shall be permitted. To the extent that insufficient funds from non -self -directed brokerage account are available to fund the loan, the loan shall not be approved. 4. Loan Repayment/Minimum and Maximum Loan Term. Repayment of any loan made to a participant shall be made in a manner and pursuant to the terms set forth in the loan agreement. Loans must be repaid through electronic debiting from a bank account. The participant receiving a loan shall be required to furnish the information and authorization necessary to effectuate the foregoing payments prior to the commencement of a loan. The minimum loan term over which a loan may be repaid is one (1) year. The maximum term over which a loan may be repaid is five (5) years (fifteen (15) years if the Sponsor permits loans for the purchase of the participant's principal residence) (See Section 17 below for more information about principal residence loans). In the event that a participant elects to receive a distribution from the Plan that is less than 100% of his outstanding account balance at a time when such person has a plan loan outstanding, the participant may continue to make payments on the loan. 5. Loan Amortization. Each loan shall be amortized beginning approximately thirty (30) days from the date the loan is processed in substantially equal payments consisting of principal and interest during the term of the loan. Payments of principal and interest shall be made in a manner and pursuant to the terms set forth in the loan agreement not Tess frequently than quarterly. The amount of the final payment may be higher or lower. NRN-0854AO 05/2014 2 Resolution No. 2015-02 6. Loan Frequency. Each participant may have only one (1) Plan loan outstanding at any given time from the Plan. A Plan loan which is in default, even if the defaulted loan was treated as a "deemed distribution" under federal regulations, shall be treated as an outstanding loan until the participant repays the total amount outstanding on the loan. NRS shall offset an active or defaulted loan upon a participant's request for a full distribution of his or her account from the Plan. 7. Rejected Payments. The participant must pay the full amount of each payment (principal and interest) on the date that it is due. If NRS is unable to process an ACH debit payment on the date due, NRS will assess a fee of $25.00 that will be deducted from the participant's account(s) and will notify the participant of the rejected payment. If a payment is rejected because of insufficient funds, NRS will attempt to process the payment a second time within five (5) days of the rejected payment. If the second ACH debit processing fails, NRS will attempt to process two (2) payments on the next payment due date. If this fails, one last attempt will be made to process the payment within the next five (5) days. As an example, if a payment is due January 1 and the ACH debit payment is rejected on that date, NRS will attempt to process the payment again no later than January 6. If the January 6 attempt is rejected. NRS will attempt to process two payments on February 1. If this fails, NRS will make a final attempt to process the two payments no later than February 6. 8. Default. If a participant fails to make a loan payment when due, NRS will send written notification of the failure to the participant and request that payment be made within one calendar month of the payment due date. The entire amount of the loan will be defaulted and treated as a deemed distribution effective as of one calendar month following the original due date of the initial missed loan payment if both the missed payment and the next payment are not paid by that date. A deemed distribution is treated as a distribution from the Plan for federal (and possibly state or local) income tax purposes; therefore amounts treated as a deemed distribution will be subject to federal, state and/or local income taxes, and certain excise taxes and penalties may apply depending on the type of Plan. NRS will issue a Form 1099-R to the participant no later than January 31 of the year following the year in which the deemed distribution occurs reflecting the deemed distribution. Any payment made on a defaulted NRN-0854AO 05/2014 3 Resolution No. 2015-02 loan must pay off the outstanding balance of the loan in full including accrued interest. Such payment following the date of default, will be treated as after tax amounts and the participant will receive tax basis in his or her Plan account for such amounts. The entire outstanding balance of the loan will also be due and payable upon notification to NRS of the death of the participant and the outstanding balance of the loan will be treated as a deemed distribution if the loan is not repaid in full within one calendar month following the date of notification. 9. Loan Prepayment. The entire amount of a loan, including outstanding principal and any accrued interest, may be paid without penalty prior to the end of the term of the loan in the manner prescribed by NRS. 10. Loan Security. By accepting a loan, the participant is giving the Plan a security interest in his or her vested Plan balance equal to the total loan amount, but not to exceed 50% of the participant's vested Plan balance. 11. Minimum/Maximum Loan Amount. The minimum loan amount permitted is $1,000.002. Account balances attributable to Section 3121 contributions and associated earnings will not be considered in determining the maximum and minimum loan amount. The maximum amount of any loan permitted under the Plan (when added to the outstanding balance of all other loans from the plan) is the lesser of (i) $50,000, reduced by the excess (if any) of (A) the highest outstanding balance of loans from the plan during the one-year period ending on the day before the date on which the loan was made over (B) the outstanding balance of loans from the plan on the date on which the loan is made, or (ii) one half of the present value of the Participant's vested account balance. Any tax reporting required as a result of the receipt by a participant of a loan that exceeds the limits imposed by federal regulations shall not be the responsibility of NRS, unless it is determined that such limits were exceeded solely as a result of a loan made through NRS as service provider. Consequently, NRS shall not be required to account for loans made pursuant to a plan other than this Plan or loans made under this Plan that are made by another provider. 2 See footnote 1. NRN-0854AO 05/2014 4 Resolution No. 2015-02 12. Loans Offered under Multiple Vendor Arrangements/Multiple Plans. The Internal Revenue Code requires that the maximum loan amount described in Section 11 above be applied in the aggregate to all loans made under any plan sponsored by an employer. The Sponsor and/or participant and not NRS shall at all times remain responsible for ensuring that any loan received under the Plan is in accordance with such limits taking into account any other loans received by the participant under any other plans of the participant's employer. NRS shall apply the maximum loan amount limit and any other limits imposed under the Internal Revenue Code without regard to any other loans received by the participant from any other investment provider under this Plan or any other plan maintained by the Sponsor. 13. Suspension of Loan Payments. A participant's obligation to repay any loan under the Plan may be suspended during the period in which the participant is performing service in the United States military as may be required by law. The Participant must resume repayment of the loan upon his or her completion of military service and the outstanding loan balance, including any accrued interest and fees, must be repaid and may be re -amortized over a period that does not exceed the latest permissible term for a loan under the regulations plus the period of the military service. While the participant is on active duty in the United States military, the interest rate on the loan shall not exceed six percent (6%), compounded annually unless the Participant elects in writing during or after his or her military leave to have the loan higher interest rate, if applicable, apply to the loan. In addition, a participant's obligation to repay any loan under the Plan may be suspended during the period (not to exceed one (1) year) while the participant is on an approved non-military leave of absence provided that the leave is not less than six (6) months and the participant provides requested documentation regarding the leave from his or her employer. The Participant must resume repayment of the loan upon his or her return from leave and the outstanding loan balance, including any accrued interest and fees, must be repaid and may be re -amortized over a period that does not exceed the latest permissible term for a loan under the regulations. The Sponsor assumes responsibility to notify NRS when a Participant begins and returns from a leave described above as well as describe the type of leave. NRN-0854A0 05/2014 5 Resolution No. 2015-02 14. Loan Interest Rate. The interest rates for a Plan loan shall be commensurate with interest rates being charged by entities in the business of lending money under similar circumstances. Generally, the rate assumed will be Prime Rate + 2.00%+ other administrative and/or asset fees, as applicable3. The Prime Rate shall be the prime rate published by the Wall Street Journal two weeks prior to the end of the most recent calendar -year quarter and the new rate will be effective on the first day of the new calendar quarter. The loan interest rate may be adjusted for participants entering active duty in the military services as may be required by law. 15. Annual Loan Maintenance and Asset Fees. An annual loan maintenance fee of $50.004 will be deducted from the participant's account until the loan is repaid in full or defaulted. The amount of the outstanding loan balance will be subject to the maximum asset fee, administrative charge or such other fees NRS is entitled to receive under its separate agreement with the Sponsor. 16. Loan Default Fee. At the time a loan is treated as a deemed distribution, a $50.005 fee will be deducted from the participant's account and will apply annually thereafter, while the defaulted loan remains unpaid. 17. Loans for the Purchase of a Principal Residence. All loans issued by the Plan will be general loans to be repaid in no more than five (5) years unless the Sponsor affirmatively elects to offer loans for the purchase of the participant's principal residence, which may be repaid in no more than fifteen (15) years. Such loans shall be solely secured by the participant's vested account balance as set forth in Section 10 above. All administrative procedures set forth herein shall apply to such loans. Will the Sponsor permit loans for the purchase of the Participant's principal residence? Indicate below: Yes ¢( No ❑ 3 See footnote 1. 4 See footnote 1. S See footnote 1. NRN-0854AO 05/2014 6 Resolution No. 2015-02 18. Loan Correction. In the event an error occurs in the administration of the loan, at the Sponsor's direction, NRS may undertake correction of the error in accordance with methods prescribed by the IRS or through any IRS correction program. The undersigned Sponsor hereby adopts these Participant Loan Administrative Procedures effective for loans issued on or after the effective date set forth below, and instructs NRS to administer loans made to Plan participants in accordance with these terms. 19. Acceptance of Procedures. The Sponsor acknowledges the following: (i) that the Sponsor has decided to offer loans under the Plan and is instructing NRS to administer loans under the Plan; (ii) that it understands that, as a result of offering loans under the Plan, the Plan participants could be subject to adverse tax consequences upon default of the loan; (in) that the Sponsor has independently weighed these risks, and despite the risks has determined that offering loans under the Plan is in the best interest of Plan participants; and (iv) NRS shall not be liable for any adverse tax consequences described in (ii), except as specifically stated under paragraph 11 herein, resulting from the Sponsor's decision to offer loans under the Plan. Plan Sponsor Name ("Sponsor"): Street Address: City, State, Zip Code Plan Name ("Plan"): Plan Number: Plan Sponsor Signature: Title: Date of Signature: Email Address: For new plan setup, an executed copy of these Procedures should be returned to Nationwide Retirement Solutions at 10 W. Nationwide Blvd, 05-04-101 A, Columbus, Ohio 43215 (Attn: Plan Administrator) For existing plans, an executed copy of these Procedures should be returned to Nationwide Retirement Solutions at PO Box 182797, Columbus, Ohio 43218 (Attn: Loans Administrator) NRN-0854A0 05/2014 7 Resolution NO. 2015-02 Nationwide Investment Advisors, LLC ProAccount - Plan Sponsor Agreement Formal Plan Name: (the "Plan") Name of Plan Sponsor: (the "Plan Sponsor") The foregoing Plan currently utilizes services and products offered by Nationwide Retirement Solutions, Inc. ("NRS") and its affiliated companies (the "Nationwide Retirement Program"). On behalf of the Plan, the Plan Sponsor desires to appoint Nationwide Investment Advisors, LLC ("NIA"), an Ohio limited liability company, registered as an investment adviser with the Securities and Exchange Commission under the Investment Adviser's Act of 1940 ("Advisers Act") and an affiliate of NRS, as an authorized provider of investment advisory services to participants in the Plan ("Plan Participants") who desire professional guidance in managing their self -directed accounts within the Plan ("Accounts"). NIA's ProAccount program (the "Advice Program") offers individualized investment advice using an investment process developed and maintained by an independent financial expert ("IFE") selected and retained by NIA. WHEREAS, on behalf of the Plan, the Plan Sponsor hereby approves NIA as an authorized provider of investment advisory services through the Advice Program to those Plan Participants who choose to have their Accounts managed by NIA (collectively, the "Plan's Account"); WHEREAS, the Plan Sponsor hereby authorizes each such Plan Participant's self -direction of their own Account, subject to guidelines imposed by the Plan, and authorizes each Plan Participant to enter into an investment advisory agreement directly with NIA for the management of their account; WHEREAS, the Plan Sponsor acknowledges that such advisory services are permitted under the documents establishing the Plan ("Plan Documents") and that the investments and investment strategies proposed by NIA through the Advice Program are consistent with the Investment Policy of the Plan; and WHEREAS, Plan Sponsor acknowledges that NIA and NRS are affiliates and that NRS will provide to NIA certain administrative services in support of the Advice Program; NOW, THEREFORE, in consideration of the foregoing and the promises, covenants and mutual agreements set forth herein, the adequacy of which is hereby mutually acknowledged, NIA and the Plan Sponsor, each intending to be legally bound, hereby do agree as follows: I. APPOINTMENT OF INVESTMENT ADVISOR The Plan Sponsor hereby appoints NIA to exercise discretionary authority to allocate and reallocate Plan Participant Accounts in the manner described in Section II below and NIA hereby accepts this appointment, subject to the terms and conditions of this Agreement. NIA's authority under this Agreement will remain in effect until changed or terminated pursuant to the termination provisions described in this Agreement. NIA's authority under this Agreement shall apply to all defined contribution plans sponsored by the Plan Sponsor that are record kept at Nationwide or any of it's affiliates on a single Nationwide record keeping system. To the extent that the Plan Sponsor desires to exclude a defined contribution plan from coverage under this Agreement subsequent to coverage of such plan, the Plan Sponsor must notify NIA of such individual plan's termination of services under this Agreement in accordance with Section IX of this Agreement. Nationwide Retirement Solutions 10 W. Nationwide Blvd. Columbus, Ohio 43215 NRM-7982A0.6-0714 1 of 7 Resolution No. 2015-02 II. ADVICE PROGRAM DESCRIPTION The Advice Program is a discretionary managed account service offered by NIA for retirement plan participants who desire professional guidance in managing their self -directed retirement plan account. The Advice Program offers individualized investment advice using an investment process developed and maintained by an IFE. Under the Advice Program, the IFE develops and maintains managed account portfolios ("Portfolios") based on all eligible investment options available under the Plan's menu of investments ("Advice Program Investments"). In addition, the Plan may offer investment options other than Advice Program Investments, including, but not limited to, individual stocks, employer stock, guaranteed certificate funds, and collective investment funds (collectively, "Non -Advice Program Investments"), which will not be considered by the IFE in the development of Portfolios. In order for Plan Accounts to be eligible for management under the Advice Program, they must be invested in mutual funds or variable insurance sub -accounts at the time the Plan Participant enrolls in the Advice Program. Plan Sponsor hereby acknowledges that any employer -directed assets, restricted assets (including assets invested in the Nationwide Fixed Contract), or assets held in self -directed brokerage accounts are not eligible for the Advice Program and will remain invested in their current manner until further action is taken by the Plan Participant or the Plan. The IFE is not a party to this Agreement, and there is no contractual relationship between the Plan and the IFE. All fees and expenses charged by the IFE for its services will be paid by NIA. The advice provided to Plan Participants under the Advice Program is limited to the independent advice provided based on the Portfolios created by the IFE, which NIA cannot modify. By signing this Agreement, you agree that NIA has discretion to terminate its relationship with the IFE at any time, without notice to you, and engage the services of a suitable replacement. By allowing the Advice Program to be offered to the Plan, you are naming NIA as an authorized provider of investment advisory services to those Plan Participants who choose to have their accounts managed by NIA. III. OBLIGATIONS AND REPRESENTATIONS OF THE PLAN SPONSOR The Plan Sponsor agrees to notify NIA of any change to the Plan Documents that affects NIA's rights or duties to the Plan or Plan Participants, and acknowledges that such change will bind NIA, as the case may be, only when NIA agrees to it in writing. The Plan Sponsor represents that (1) NIA's investment advisory services are permitted under the Plan Documents; (2) the Plan Sponsor has the authority to enter into this Agreement on behalf of the Plan; and (3) the Plan is operated, and NIA's appointment is, in compliance with all applicable federal and state laws, rules and regulations. Nationwide Retirement Solutions 10 W. Nationwide Blvd. Columbus, Ohio 43215 NRM-7982A0.6-0714 2 of 7 Resolution N0. 2015-02 IV. OBLIGATIONS AND REPRESENTATIONS OF NIA NIA agrees that in performing any of its duties and obligations hereunder, NIA will act in conformity with all terms and provisions of the agreements entered into between NIA and the Plan Participants and any instructions given pursuant thereto or otherwise, and will conform to and comply with the requirements of the Advisers Act and all other applicable federal and state laws, rules and regulations, as each may be amended from time to time. NIA represents that it is registered as an investment adviser under the Advisers Act or under applicable state law in each state in which it is providing investment advisory services or is otherwise required to be registered and/or notice filed, and each of its representatives are properly registered, licensed and/or qualified to act as such under all applicable federal and state securities statutes and regulations. NIA does not have any duty, responsibility or liability for Plan assets that are not part of the Plan's Account that NIA manages through the Advice Program. NIA will not be providing investment advice regarding, or have fiduciary responsibility for, the selection and monitoring of investment options available in the Plan. NIA shall have no obligation or authority to take any action or render any advice with respect to the voting of proxies solicited by or with respect to issuers of securities held in the Advice Program. V. ADVICE PROGRAM FEES In consideration of services rendered to Plan Participants, the Plan Sponsor hereby approves, subject to specific approval by each Plan Participant electing to have their Accounts managed by NIA, a participant level Advice Progam fee ("Advice Program Fee") as outlined in the following schedule: Account Balance The first $99,999.99 The next $150,000 The next $150,000 The next $100,000 Assets of $500,000 and above Annual Program Fee 1.00% 0.90% 0.75% 0.60% 0.50% To the extent the ProAccount Fee applies to multiple plans of the Plan Sponsor, the ProAccount Fee shall be based on the combined balances within the ProAccount but will be withdrawn on a pro rata basis among the Participant's accounts in the separate plans. The Advice Program Fee is separate from the fees and expenses charged by investment options offered through the Plan and in addition to any trustee, custodial, asset, service, administrative or transactional fees that the Plan Participants or the Plan may incur through the Nationwide Retirement Program. The Advice Program Fee shall be calculated daily based on the Participant's daily balance and the calculated Advice Program Fee withdrawn quarterly in accordance with each Plan Participant's investment advisory agreement with NIA. The Plan Sponsor hereby consents to the withdrawal of the Advice Program Fee from the applicable Plan Participant Accounts and agrees that it will use its best efforts to facilitate payment of such Advice Program Fee. If this Agreement ends before the end of the applicable calendar quarter, then a pro-rata share of the Advice Program Fee will be withdrawn from the Plan's Account. Nationwide Retirement Solutions 10 W. Nationwide Blvd. Columbus, Ohio 43215 NRM-7982A0.6-0714 3 of 7 Resolution NO. 2015-02 To the extent permitted by applicable law or regulation, affiliates of NIA may receive payments from, or in connection with, investment options selected by the IFE which are included in the Portfolios. In addition, the IFE may select certain investment options for which NIA or an investment advisory affiliate acts as investment adviser. The IFE's fees for services provided under the Advice Program are not related to the investment options the IFE selects for the Portfolios or otherwise influenced by the payments NIA or its affiliates may receive from such investment options. Certain Advice Program Investments may charge a redemption fee or impose a trade restriction on certain transactions. Redemption fees vary in amount and application from investment option to investment option. It is possible that transactions initiated by NIA under the Advice Program may result in the imposition of redemption fees or trade restrictions on one or more investment options held in Plan Participant Accounts. Any redemption fees will be deducted from the Plan Participant's Advice Program Account balance. For further information on redemption fees or trade restrictions, including whether they will be applicable to any of the investment options within your Plan, please consult the individual fund prospectus or other investment option disclosure material. VI. INDEMNIFICATION, LIMITATION OF LIABILITY, AND RISK ACKNOWLEDGMENT Each party agrees to hold harmless, defend and indemnify the other party (including its directors, officers, employees, affiliates and agents) from and against any and all claims, liabilities, losses, costs, damages or expenses (including, without limitation, cost of litigation and reasonable attorneys' fees) (collectively, "Losses") arising out of or attributable to the indemnifying party's (i) willful misconduct, bad faith, criminal activity, or gross negligence, (ii) material breach of this Agreement or the material inaccuracy of any representation or warranty provided hereunder, or (iii) violation of any law to which such party is subject. Plan Sponsor, on behalf of the Plan, agrees to hold harmless, defend and indemnify NIA (including its directors, officers, employees, affiliates and agents) from and against any and all Losses arising out of or attributable to NIA's following directions or carrying out instructions, or using obsolete, inaccurate or incomplete information, given or furnished by the Plan or its agents. A party that seeks indemnification under this Section VI must promptly give the indemnifying party written notice of any legal action. But a delay in notice does not relieve an indemnifying party of any liability to an indemnified party, except to the extent the indemnifying party shows that the delay prejudiced the defense of the action. The indemnifying party may participate in the defense at any time or it may assume the defense by giving notice to the other party. After assuming the defense, the indemnifying party: must select an attorney that is satisfactory to the other party; is not liable to the other party for any later attorney's fees or for any other later expenses that the other party incurs, except for reasonable investigation costs; must not compromise or settle the action without the other party's consent (but the other party must not unreasonably withhold its consent); and is not liable for any compromise or settlement made without its consent. If the indemnifying party fails to participate in or assume the defense within 15 days after receiving notice of the action, the indemnifying party is bound by any determination made in the action or by any compromise or settlement made by the other party Federal and state securities laws impose liabilities in certain circumstances on persons who act in good faith, and nothing in this Agreement waives or limits any rights either party has under those laws. Nationwide Retirement Solutions 10 W. Nationwide Blvd. Columbus, Ohio 43215 NRM-7982A0.6-0714 4 of 7 Resolution No. 2015-02 Risk Acknowledgment NIA uses reasonable care, consistent with industry practice, in providing advisory services through the Advice Program. Investments within the Plan, as all investments in securities, involve risk and will not always be profitable. Investment return and principal will fluctuate with market conditions, and Plan Participant Accounts may lose money. Past performance of investments is no guarantee of future results. The analysis and advice provided by the IFE and delivered by NIA depends upon a number of factors, including the information you or the Plan Participants may provide, various assumptions and estimates, and other considerations. As a result, the advice developed and the recommendations provided are not guarantees that Plan Participants will achieve their retirement goals or anticipated performance. The investment advice provided under this Agreement relates only to the Plan Participant Accounts and will not apply to any other assets a Plan Participant may own. VII. CONFIDENTIALITY Each party agrees that it will not, without the prior written consent of the other party, at any time during the term of this Agreement or any time thereafter, except as may be required by competent legal authority or as necessary to facilitate the implementation of services hereunder, use or disclose to any person, firm or other legal entity, including any affiliate or other representative of the party, any confidential records, secrets or information related to the other party (collectively, "Confidential Information"). Confidential Information shall include, without limitation, information about the other party's products and services, customer lists, customer or client information, Plan and Plan Participant information, and all other proprietary information used by the party in its business. The parties acknowledge and agree that all Confidential Information that it has acquired, or may acquire, was received, or will be received in confidence. Each party will exercise utmost diligence to protect and guard such Confidential Information. The Plan Sponsor (1) acknowledges that it is authorized to provide Confidential Information, including but not limited to Plan Participant information, to NIA for the operation of the Advice Program, and the provision of such information does not violate any Plan or company provisions or policies; and (2) authorizes the sharing of Plan Participant information among NIA and its affiliates as necessary for the operation of the Advice Program. VIII. TERM OF AGREEMENT This Agreement shall become effective upon acceptance by NIA, or its designated agent, upon review and receipt in its principal place of business, and such acceptance may be evidenced by internal records maintained by NIA or its designated agent. This Agreement shall continue until terminated by either party upon at least 30 days' advance written notice to the other. This Agreement will terminate immediately if the Plan terminates its participation in the Nationwide Retirement Program. In the event NIA terminates its relationship with the current IFE and has not designated a successor IFE, this Agreement shall automatically terminate upon written notice from NIA. The Plan Sponsor understands that upon termination of this Agreement, the Plan's Account will remain invested in the Advice Program Investments last allocated by NIA until such time as Plan Participants make changes to their individual Accounts. Nationwide Retirement Solutions 10 W. Nationwide Blvd. Columbus, Ohio 43215 NRM-7982A0.6-0714 5 of 7 Resolution No. 2015-02 IX. MISCELLANEOUS Notices All notices required to be delivered under this Agreement will be delivered in person or by U.S. first class mail, overnight courier, or facsimile (with a paper copy provided via the U.S. mail), in each case prepaid, to NIA at the address provided below and to the Plan Sponsor at the address provided on the signature page of this Agreement (or to such other addresses as the parties may specify to one another in writing): Nationwide Investment Advisors, LLC Attention: Nationwide ProAccount P.O. Box 183192, Mail Stop: 5-02-201 Columbus, Ohio 43218-3192 Phone: 888/540-2896 Fax: 855/435-1863 Notices will be deemed given upon dispatch. Form ADV The Plan Sponsor acknowledges having received and read NIA's Form ADV, Part 2 ("Form ADV") and Privacy Policy upon entering into this Agreement. The Form ADV is a disclosure document that summarizes the investment advisory services provided by an investment adviser registered with the SEC and/or the states. The Form ADV contains additional information about the Advice Program. Entire Agreement; Amendment This Agreement constitutes the entire agreement between the parties hereto with respect to the obligations arising hereunder and supersedes and cancels any prior agreements, representations, warranties or communications, whether oral or written, among the parties hereto relating to the subject matter hereof. This Agreement may be amended by NIA upon 30 days' prior written notice to the Plan Sponsor and may be amended immediately upon notice to the extent required to satisfy federal or state regulatory requirements. Headings All Section headings in this Agreement are for convenience of reference only and do not form part of this Agreement. Section headings will not, in any way, affect the meaning or interpretation of this Agreement. Waiver No delay by either party in requiring performance by the other shall affect the right of such party to require performance; no waiver by either party of any breach shall be construed as a waiver of any subsequent breach or as a waiver of the provision itself or any other provision. Survival All terms and provisions of this Agreement, including without limitation: "Indemnification, Limitation of Liability, and Risk Acknowledgment," "Confidentiality," and Miscellaneous" which should by their nature survive the termination of this Agreement, shall so survive the termination of this Agreement. Nationwide Retirement Solutions 10 W. Nationwide Blvd. Columbus, Ohio 43215 NRM-7982A0.6-0714 6 of 7 Resolution No. 2015-02 Assignment Neither party may assign this Agreement (within the meaning of the Advisers Act) or assign any of the rights or delegate any of the duties or obligations of this Agreement without the other party's prior consent. Any assignment in violation of this provision shall be void and of no force or effect. Force Majeure Neither party shall be liable for failure to perform if the failure results from a cause beyond its control, including, without limitation, fire, electrical, mechanical, or equipment breakdowns, delays by third party providers and/or communications carriers, civil disturbances or disorders, terrorist acts, strikes, acts of government authority or new governmental restrictions, or acts of God. Severability Should any provision of this Agreement be held invalid or unenforceable by any court, arbitrator, statute, rule or otherwise, the remaining provisions of this Agreement will not be affected thereby and will continue in full force and effect to the fullest extent practicable. Governing Law This Agreement and its enforcement will be governed by and construed in accordance with the laws of the State of Ohio, without regard to the conflicts of law provisions or principles. Nothing herein will be construed in any manner inconsistent with the Advisers Act or any rule or order of the Securities and Exchange Commission, as applicable. IN WITNESS WHEREOF, the Plan Sponsor, on behalf of the Plan, has executed this Agreement as of the date set forth below. Plan: By: (Signature) Name: (Printed) Plan Address: Plan Contact/Telephone: Date: ACCEPTED BY NIA: Nationwide Investment Advisors, LLC By: Title: Print Name: Date: Title: Nationwide Retirement Solutions 10 W. Nationwide Blvd. Columbus, Ohio 43215 NRM-7982A0.6-0714 7 of 7