N.Y. Comp. Codes R. & Regs. tit. 9 § 9003.5

Current through Register Vol. 46, No. 50, December 11, 2024

Section 9003.5 - Miscellaneous requirements

(a) All contracts and agreements entered into with a trustee, an independent consultant, a financial organization, a firm of certified public accountants or an administrative service agency shall be in writing, shall be awarded on the basis of a competitive bid conducted or a search conducted in accordance with section 9003.1(c) of this Part in respect of the specific contract or agreement in accordance with this Part, shall not exceed five years in duration, and shall impose no penalties or surrender charges for the transfer of assets or responsibilities on expiration of the contract or agreement. Where the board or a deferred compensation committee enters into a contract or agreement with a trustee, a financial organization or organizations, and an administrative service agency and such trustee, financial organization or organizations and administrative service agency is selected by the board or deferred compensation committee independently from each other service, such contracts or agreements shall not exceed 10 years in duration. Notwithstanding the previous sentence, no trustee who is the only trustee of a plan shall be forced to resign the position of trustee solely by operation of this subdivision prior to the time such person's successor as trustee has been duly qualified and appointed.

(b) Notwithstanding subdivision (a) of this section, when the board or a deferred compensation committee deems it to be in the best interest of the plan, the board or any deferred compensation committee may extend, in writing, by vote duly taken, any contract or agreement entered into with a trustee, an independent consultant, a financial organization, a firm of certified public accountants or an administrative service agency for a duration not to exceed two consecutive one-year periods and with the consent of such party; provided, however, that any such one- year extension shall be implemented only upon:

(1) the expiration of the initial term of such contract or agreement in the case of the first one-year extension; or

(2) the expiration of the first one-year extension in the case of the second one-year extension. In the event that the board or a deferred compensation committee implements such an extension, the board or the deferred compensation committee shall describe in writing the reasons for its determination that the extension is in the best interest of the plan.

(c) Neither the board nor any deferred compensation committee may permit, nor enter into an agreement that permits, a trustee, financial organization, independent consultant, administrative service agency or any other person to select one or more other trustees, administrative service agencies, firms of certified public accountants, independent consultants, or financial organizations to provide services in respect of a plan. Notwithstanding the previous sentence, this subdivision shall not prohibit the board or any deferred compensation committee from entering into an agreement with:

(1) a financial organization selected and retained by the board or a deferred compensation committee, as applicable, in accordance with this Subtitle, that provides for self-directed investment services through a mutual fund or brokerage window arrangement sponsored by such financial organization with respect to a plan, provided that such self-directed investment services shall not be the sole investment alternative provided under a plan and that the board and the deferred compensation committee shall establish clear guidelines regarding participants' access to, and level of participation in, such self-directed investment services.

(2) a financial organization selected and retained by the board or a deferred compensation committee, as applicable, in accordance with this Subtitle, to manage the stable income fund of such plan which authorizes such financial organization to engage in one or more of the following fund management activities with respect to the assets of a stable income fund:

(i) the investment of the assets of the stable income fund in one or more guaranteed investment contracts, provided, however, that such guaranteed investment contract shall not exceed five years in duration;

(ii) the purchase of one or more wrap contracts with respect to the assets of the stable income fund; or

(iii) the periodic allocation of the assets of the stable income fund between or among two or more other financial organizations selected and retained by the board or deferred compensation committee, as applicable, in accordance with this Subtitle, provided that, in each case:

(a) the written agreement between the board or deferred compensation committee, as applicable, and the financial organization, expressly authorizes the applicable fund management activities and states that the financial organization is a fiduciary to the plan with respect to the fund management activities so authorized;

(b) any such fund management activity is undertaken by the financial organization in accordance with reasonable practices of the financial organization applicable to its clients generally, and the financial organization receives no fee or other consideration from any person (other than the plan) related to such fund management activity;

(c) the guaranteed investment contract or wrap contract, as applicable, imposes no penalties or surrender charges for the transfer of assets or responsibilities on expiration of the contract or agreement;

(d) the trustee of the plan continues to be the owner on behalf of the plan of all of the assets of the stable income fund; and

(e) any such fund management activity complies with the criteria for selection and reporting of section 9003.3 of this Subtitle and the then effective investment policies and guidelines of the board or deferred compensation committee, as applicable, related to the stable income fund.

A financial organization engaged in the management activities described in this paragraph shall do so in accordance with the procedures of this paragraph and with other provisions of this Subtitle to the extent such other provisions are incorporated into this paragraph.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 9003.5