Title 128 · ORS Chapter 128

128.336, an institution may delegate to an external agent the management and investment of an institutional fund to the extent that an institution could prudently delegate under the circumstances. An

Citation: ORS 128.336

Section: 128.336

128.336, an institution may delegate to an external agent the management and investment of an institutional fund to the extent that an institution could prudently delegate under the circumstances. An institution shall act in good faith, with the care that an ordinarily prudent person in a like position would exercise under similar circumstances, in:

�� (a) Selecting an agent;

�� (b) Establishing the scope and terms of the delegation, consistent with the purposes of the institution and the institutional fund; and

�� (c) Periodically reviewing the agent�s actions in order to monitor the agent�s performance and compliance with the scope and terms of the delegation.

�� (2) In performing a delegated function, an agent owes a duty to the institution to exercise reasonable care to comply with the scope and terms of the delegation.

�� (3) An institution that complies with subsection (1) of this section is not liable for the decisions or actions of an agent to which the function was delegated.

�� (4) By accepting delegation of a management or investment function from an institution that is subject to the laws of this state, an agent submits to the jurisdiction of the courts of this state in all proceedings arising from or related to the delegation or the performance of the delegated function.

�� (5) An institution may delegate management and investment functions to its committees, officers or employees as authorized by law of this state other than ORS 128.305 to 128.336. [2007 c.554 �4]

�� 128.328 Release or modification of restrictions on management, investment or purpose. (1) If the donor consents in a record, an institution may release or modify, in whole or in part, a restriction contained in a gift instrument on the management, investment or purpose of an institutional fund. A release or modification may not allow a fund to be used for a purpose other than a charitable purpose of the institution.

�� (2) The court, upon application of an institution, may modify a restriction contained in a gift instrument regarding the management or investment of an institutional fund if the restriction has become impracticable or wasteful, the restriction impairs the management or investment of the fund or, because of circumstances not anticipated by the donor, a modification of a restriction will further the purposes of the fund. The institution shall notify the Attorney General of the application, and the Attorney General must be given an opportunity to be heard. To the extent practicable, any modification must be made in accordance with the donor�s probable intention.

�� (3) If a particular charitable purpose or a restriction contained in a gift instrument on the use of an institutional fund becomes unlawful, impracticable, impossible to achieve or wasteful, the court, upon application of an institution, may modify the purpose of the fund or the restriction on the use of the fund in a manner consistent with the charitable purposes expressed in the gift instrument. The institution shall notify the Attorney General of the application, and the Attorney General must be given an opportunity to be heard.

�� (4) If an institution determines that a restriction contained in a gift instrument on the management, investment or purpose of an institutional fund is unlawful, impracticable, impossible to achieve or wasteful, the institution, within 60 days after notification to the Attorney General, may release or modify the restriction, in whole or part, if:

�� (a) The institutional fund subject to the restriction has a total value of less than $25,000;

�� (b) More than 20 years have elapsed since the fund was established; and

�� (c) The institution uses the property in a manner consistent with the charitable purposes expressed in the gift instrument.

�� (5) The provisions of this section apply to property and other interests given by private donors as a gift to a public body, as defined by ORS 174.109, or to any instrumentality of a public body. This subsection does not limit any other authority that a public body or an instrumentality of a public body may have to release or modify a restriction contained in a gift instrument on the management, investment or purpose of funds. [2007 c.554 �5]

�� 128.330 [1975 c.707 �5; repealed by 2007 c.554 �11]

�� 128.332 Reviewing compliance. Compliance with ORS 128.305 to 128.336 is determined in light of the facts and circumstances existing at the time a decision is made or action is taken, and not by hindsight. [2007 c.554 �6]

�� 128.334 Relation to Electronic Signatures in Global and National Commerce Act. ORS 128.305 to 128.336 modify, limit and supersede the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. 7001 et seq., but do not modify, limit or supersede 15 U.S.C. 7001(a), or authorize electronic delivery of any of the notices described in 15 U.S.C. 7003(b). [2007 c.554 �8]

�� 128.335 [1975 c.707 �6; repealed by 2007 c.554 �11]

�� 128.336 Uniformity of application and construction. In applying and construing ORS 128.305 to 128.336, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact the Uniform Prudent Management of Institutional Funds Act. [2007 c.554 �9]

�� 128.340 [1975 c.707 �7; repealed by 2007 c.554 �11]

�� 128.345 [1975 c.707 �8; repealed by 2007 c.554 �11]

�� 128.350 [1975 c.707 �10; repealed by 2007 c.554 �11]

�� 128.355 [1975 c.707 �9; repealed by 2007 c.554 �11]

�� 128.370 [2003 c.84 �1; 2005 c.348 �108; renumbered 130.520 in 2005]

�� 128.375 [2003 c.84 �2; 2005 c.348 �111; renumbered 130.530 in 2005]

�� 128.378 [2003 c.84 �3; 2005 c.348 �112; renumbered 130.535 in 2005]

�� 128.380 [2003 c.84 �4; renumbered 130.540 in 2005]

�� 128.382 [2003 c.84 �5; renumbered 130.545 in 2005]

�� 128.385 [2003 c.84 �6; 2005 c.348 �113; renumbered 130.550 in 2005]

�� 128.388 [2003 c.84 �7; 2005 c.348 �114; renumbered 130.555 in 2005]

�� 128.390 [2003 c.84 �8; 2005 c.348 �115; renumbered 130.560 in 2005]

�� 128.392 [2003 c.84 �9; renumbered 130.565 in 2005]

�� 128.395 [2003 c.84 �10; 2005 c.348 �116; renumbered 130.570 in 2005]

�� 128.397 [2003 c.84 �11; 2005 c.348 �117; renumbered 130.575 in 2005]

�� 128.398 [2003 c.84 �12; 2005 c.22 �99; 2005 c.348 �118; renumbered 130.240 in 2005]

�� 128.400 [1987 c.813 �3; 1997 c.631 �416; 2001 c.796 �7; renumbered 97.923 in 2001]

�� 128.405 [1987 c.813 �1; 2001 c.796 �16; renumbered 97.925 in 2001]

�� 128.407 [1987 c.813 �2; 2001 c.796 �17; renumbered 97.927 in 2001]

�� 128.410 [1953 c.639 �1; 1955 c.524 �1; 1959 c.691 �1; 1965 c.611 �14; 1967 c.359 �681; 1979 c.661 �1; repealed by 1987 c.813 �17]

�� 128.412 [1959 c.691 �2; 1967 c.359 �682; 1985 c.207 �23; 1987 c.813 �11; 1991 c.331 �43; 1997 c.631 �417; 1999 c.68 �1; 2001 c.796 �8; renumbered 97.929 in 2001]

�� 128.414 [1993 c.467 �3; 1995 c.325 �2; 2001 c.796 �9; renumbered 97.931 in 2001]

�� 128.415 [1953 c.639 �2; 1955 c.524 �2; 1959 c.691 �3; 1981 c.484 �1; 1985 c.207 �24; 1987 c.214 �1; 1987 c.813 �12; 1989 c.171 �14; 2001 c.796 �10; renumbered 97.937 in 2001]

�� 128.420 [1981 c.719 �9a; 1983 c.810 �26; 1987 c.158 �18b; repealed by 1987 c.813 �17]

�� 128.421 [1987 c.813 �4; 1989 c.1048 �3; 2001 c.796 �11; renumbered 97.939 in 2001]

�� 128.423 [1987 c.813 �5; 1989 c.1048 �1; 1995 c.720 �1; 2001 c.796 �12; renumbered 97.941 in 2001]

�� 128.425 [1987 c.813 �6; 1989 c.1048 �2; 1995 c.720 �2; 2001 c.796 �13; renumbered 97.943 in 2001]

�� 128.430 [1987 c.813 �7; 2001 c.796 �14; renumbered 97.944 in 2001]

�� 128.435 [1987 c.813 �8; 1995 c.144 �8; 2001 c.796 �15; renumbered 97.945 in 2001]

�� 128.440 [1987 c.813 �8a; 2001 c.796 �18; renumbered 97.946 in 2001]

�� 128.460 [1971 c.182 �1; repealed by 2005 c.348 �128]

�� 128.470 [1971 c.182 �2; repealed by 2005 c.348 �128]

�� 128.480 [1971 c.182 �3; repealed by 2005 c.348 �128]

�� 128.490 [1971 c.182 �4; repealed by 2005 c.348 �128]

�� 128.500 [1971 c.182 �5; repealed by 2005 c.348 �128]

EMPLOYEES� TRUSTS

�� 128.510 Definitions for ORS 128.520. As used in ORS 128.520, �employees� trust� means a trust of real or personal property forming part of a pension, profit sharing, stock bonus, annuity, disability or death benefit plan of an employer or group of employers for the benefit of the employees of the employer or group of employers, to which contributions are made by such employers or employees, or both, for the purpose of distributing income or principal, or both, to such employees or the beneficiaries of such employees. [1955 c.586 �1]

�� 128.520 Employees� trust may be in perpetuity; accumulation of income. An employees� trust may be permitted to accumulate for such time as may be necessary to accomplish the purpose for which it is created, and is not invalid as violating any rule of law against perpetuities or the suspension of the power of alienation of title to property. The income from any property held in an employees� trust may continue in perpetuity or in accordance with the terms of such trust, and the plan of which such trust forms a part, for such time as may be necessary to accomplish the purpose for which such trust is created. [1955 c.586 �2]

BUSINESS TRUSTS

�� 128.560 �Business trust� described. A �business trust� is any association, including a real estate investment trust, engaged in or operating a business under a written trust agreement or declaration of trust, the beneficial interest under which is divided into transferable certificates of participation or shares, other than a trust engaged solely in exercising the voting rights pertaining to corporate shares or other securities in accordance with the terms of a written instrument. [1971 c.491 �1]

�� 128.565 Business trust permitted. A business trust is permitted as a recognized form of association for the conduct of business within the State of Oregon. [1971 c.491 �2]

�� 128.570 Business trusts and trustees not subject to bank and trust company regulations. Neither a business trust nor the trustees of such trust are subject to the provisions of ORS chapters 706, 707 and 709. [1971 c.491 �3; 1997 c.631 �418]

�� 128.573 Forms; rules. Upon request, the Secretary of State may furnish forms for documents required or permitted to be filed under ORS 128.560 to 128.600. The Secretary of State may by rule require the use of the forms. [1995 c.215 �23]

�� 128.575 Filing with Office of Secretary of State required; fees; amendments. (1) Any business trust desiring to do business in this state shall first submit to the Office of Secretary of State a copy of the trust instrument creating the trust and any subsequent amendments to the trust and a document setting forth:

�� (a) The business trust name and the state or country of formation;

�� (b) The names and addresses of the business trust�s trustees;

�� (c) The physical street address of the business trust�s registered office in this state, which must be a location at which process may be personally served on the registered agent and that may not be a commercial mail receiving agency, a mail forwarding business or a virtual office, and the name of the registered agent;

�� (d) A mailing address to which the Secretary of State may mail notices; and

�� (e) Any additional identifying information that the Secretary of State by rule may require.

�� (2) The filing described in subsection (1) of this section must be accompanied by the applicable filing fee.

�� (3) If the Secretary of State finds that the document contains the required information, the Secretary of State, when all fees have been paid, shall file the trust instrument and document and return an acknowledgment of filing to the sender.

�� (4) If a business trust amends a trust instrument, the business trust shall submit for filing a copy of the amendment to the Office of Secretary of State. The amendment must set forth:

�� (a) The name of the business trust as shown on the records of the Office of Secretary of State; and

�� (b) The information as changed. [1971 c.491 �4; 1973 c.367 �12; 1985 c.351 �21; 1985 c.728 �81a; 1987 c.94 �128; 1995 c.215 �24; 1999 c.486 �18; 2017 c.705 �30]

�� 128.580 Business trusts subject to certain corporate laws. Any business trust shall be subject to such provisions of law, now or hereafter enacted, with respect to domestic and foreign corporations, respectively, as relate to the issuance of securities, filing of required statements or reports, service of process, general grants of power to act, right to sue and be sued, limitation of individual liability of shareholders and rights to acquire, mortgage, sell, lease, operate and otherwise to deal in real and personal property. Except as otherwise provided in its trust agreement or declaration of trust, or any amendments thereto, any business trust shall also be subject to the other provisions of ORS chapter 60 and other rights and duties existing under the common law and statutes of this state applicable to domestic and foreign corporations. Title to any real or personal property may be held in the name of the trust, one or more of the trustees or any other person as nominee. [1971 c.491 �5; 1973 c.367 �13; 1979 c.208 �6; 1987 c.94 �99]

�� 128.585 Personal liability of trustees, shareholders or beneficiaries of business trust. The trustees, shareholders or beneficiaries of a business trust shall not, as such, be personally liable for any obligations of such business trust arising after June 25, 1971. Persons becoming trustees, shareholders or beneficiaries after June 25, 1971, shall not be personally liable, as such, for obligations of the business trust existing on June 25, 1971. [1971 c.491 �6; 1973 c.367 �14]

�� 128.590 Filing of trust instrument as conclusive evidence of compliance with laws; exception. For purposes of ORS 128.585, filing of the trust instrument by the Secretary of State shall be conclusive evidence that all conditions precedent required to be performed by the business trust have been complied with and that the business trust is authorized to do business in this state, except as against this state in a proceeding to cancel or revoke the filing for violations of the provisions of ORS 128.580. [1971 c.491 �7; 1985 c.728 �82]

�� 128.595 Annual report; due date; content; notice of requirement; effect of failure to file. (1) A business trust by the trust�s anniversary date shall deliver to the office of the Secretary of State for filing an annual report accompanied by the annual fee.

�� (2) The annual report must contain:

�� (a) The name of the business trust and the state or country under the law of which the business trust is formed;

�� (b) The names and addresses of the business trust�s trustees;

�� (c) The physical street address of the business trust�s registered office in this state, which must be a location at which process may be personally served on the registered agent and which may not be a commercial mail receiving agency, a mail forwarding business or a virtual office, and the name of the trust�s registered agent at the registered office;

�� (d) A mailing address to which the Secretary of State may mail notices;

�� (e) A description of the primary business activity of the business trust; and

�� (f) Any additional identifying information that the Secretary of State may require by rule.

�� (3) The annual report must be on forms prescribed and furnished by the Secretary of State. The information contained in the annual report must be current as of 30 days before the anniversary of the business trust.

�� (4) The Secretary of State shall mail the report form to any address shown for the business trust in the current records of the office of the Secretary of State. The business trust�s failure to receive the report form from the Secretary of State does not relieve the business trust of the trust�s duty under this section to deliver a report to the office.

�� (5) If the Secretary of State finds the report conforms to the requirements of this section, the Secretary of State shall file the report.

�� (6) If the Secretary of State finds that the annual report does not conform to the requirements of this section, the Secretary of State shall return the report to the business trust. The business trust shall correct the annual report and return the corrected report to the Secretary of State within 45 days after the Secretary of State returns the report.

�� (7) If a business trust has not filed the report by the reporting date or has not filed a corrected report within the 45-day period, the Secretary of State shall send to the business trust a final notice advising that a report has not been filed and the Secretary of State, therefore, assumes that the business trust is no longer active unless a report is filed within 45 days after the mailing of the final notice.

�� (8) Not less than 45 days after the mailing date of the final notice specified in subsection (7) of this section, the Secretary of State may assume and note on the records of the Secretary of State that the business trust is inactive. [Formerly 128.075; 1983 c.717 �29; 1985 c.351 �22; 1985 c.728 �82b; 1987 c.94 �130; 1987 c.843 �18; 1993 c.190 �17; 1995 c.215 �25; 2007 c.186 �17; 2011 c.147 �25; 2013 c.158 �33; 2017 c.705 �31]

�� 128.597 Inactivation of business trust. The Secretary of State may commence a proceeding to inactivate the trust instrument of a business trust if:

�� (1) The business trust does not pay when due any fees imposed by ORS 128.560 to 128.600;

�� (2) The business trust does not deliver its annual report to the Secretary of State when due;

�� (3) The business trust is without a registered agent or registered office in this state;

�� (4) The business trust does not notify the Secretary of State that its registered agent or registered office has been changed, that its registered agent has resigned or that its registered office has been discontinued; or

�� (5) The business trust�s period of duration stated in the trust instrument expires. [1995 c.215 �27]

�� 128.599 Reinstatement of business trust following inactivation. (1) A business trust that the Secretary of State inactivated under ORS 128.597 may apply to the Secretary of State for reinstatement within five years from the date of inactivation. The application must state:

�� (a) The name of the business trust and effective date of the business trust�s administrative inactivation; and

�� (b) That the ground or grounds for inactivation either did not exist or have been eliminated.

�� (2) If the Secretary of State determines that the application contains the information required by subsection (1) of this section, that the information is correct and that the business trust�s name satisfies the requirements of ORS 60.094, the Secretary of State shall reinstate the business trust.

�� (3) When effective, the reinstatement relates back to and takes effect as of the effective date of the administrative inactivation and the business trust is considered to resume carrying on the business trust�s business as if the administrative inactivation had never occurred.

�� (4) The Secretary of State may waive the requirement under subsection (1) of this section that the business trust apply for reinstatement within five years after the date of administrative inactivation if the business trust requests the waiver and provides evidence of the business trust�s continued existence as an active concern during the period of administrative inactivation. [1995 c.215 �28; 2011 c.147 �26]

�� 128.600 Filing, service, copying and certification fees. The Secretary of State shall collect the fees described in ORS 56.140 for each document delivered for filing under ORS 128.560 to 128.600 and for process served on the secretary under ORS