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O R D I N A N C E NO. 11247
AN ORDINANCE repealing Ordinance No. 10440, adopted September 10, 1998, as
amended by Ordinance 10623, adopted September 9, 1999, and enacting a new Ordinance in lieu
thereof on the same subject, establishing an amended and restated Deferred Compensation Plan
and Trust for employees of the Metropolitan St. Louis Sewer District.
BE IT ORDAINED BY THE BOARD OF TRUSTEES OF THE METROPOLITAN
ST. LOUIS SEWER DISTRICT:
Section One: Ordinance No. 10440, adopted September 10, 1998, as amended by
Ordinance 10623, adopted September 9, 1999, is hereby repealed, without, however, altering or
extinguishing the legal rights and obligations established by such Ordinance.
Section Two: There is hereby established a restated and amended Deferred
Compensation Plan to comply with amendments to Section 457(b) of the Internal Revenue Code
of 1986, as amended (“Code”) and to incorporate additional guidance provided by the Internal
Revenue Service in the form of proposed regulations on which employers may rely pending
further guidance. This Ordinance is effective January 1, 2002.
METROPOLITAN ST. LOUIS SEWER DISTRICT
DEFERRED COMPENSATION PLAN
Section 1. Purpose. The primary purpose of this restated Metropolitan St. Louis Sewer
District Deferred Compensation Plan (“Plan”) is to benefit those employees of the Metropolitan
St. Louis Sewer District who elect to participate by permitting them to defer a portion of their
compensation in order to provide for retirement benefits and certain other contingencies such as
death, disability, loans, and unforeseeable emergencies. In addition, this Ordinance establishes a
Trust to hold all of the assets and income of the Plan.
Section 2. Definitions. For purposes of this Plan, certain terms shall have the meanings
listed below. Capitalized terms not defined below shall have the same meaning as defined in the
Metropolitan St. Louis Sewer District Employees’ Pension Plan
2.1 “Administrator” shall mean the committee appointed by the Employer
pursuant to Section 11.
2.2 “Beneficiary” means the person or legal entity named by a Participant, in
accordance with procedures established by the Administrator, to receive any payments payable
under the Plan in the event of the death of the Participant. In the manner and within the limits
prescribed by the Administrator, a Participant may designate more than one Beneficiary to share
a benefit or to receive a benefit if one or more other Beneficiaries should die before such benefit
becomes payable. Except as otherwise provided herein, if no Beneficiary is named, or if no
named Beneficiary is living or in existence at the time a benefit is payable, the estate of the
deceased Participant shall be the Beneficiary. A Participant may change or revoke a Beneficiary
designation at any time without the consent of the Beneficiary, by filing with the Administrator a
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new Beneficiary designation. Any change of Beneficiary designation shall revoke all prior
Beneficiary designations made by that Participant.
2.3 “Benefit Settlement Election Form” shall mean the form on which a
Participant or his Beneficiary selects the form in which his Book Account shall be paid and when
payment shall commence.
2.4 “Book Account” shall mean the separate bookkeeping account established
for each Participant and shall be composed of all Sub-Book Accounts held for a Participant.
2.5 “Code” shall mean the Internal Revenue Code of 1986, as amended.
2.6 “Contribution” shall mean the Compensation deferred by Participants
during each pay period and paid over to the Trustee hereunder.
2.7 “Compensation” shall mean the compensation paid to the Participant by
the Employer and which is attributable to services performed for the Employer as reported on
Form W-2, including amounts paid for overtime, plus contributions made by the Employer
pursuant to the deferral elections of the Participant under plans described in Code Section
401(k), 403(b), 457, 125 or 132(f)(4).
2.8 “Disability” shall mean a physical or mental condition which renders the
Participant incapable of continuing in the employment of the Employer. An Employee shall be
deemed to be disabled when certified by a physician licensed by the state of Missouri who is
acceptable to the Employer.
2.9 “Effective Date” shall mean the effective date specified in the adopting
ordinance.
2.10 “Eligible Plan” shall mean a plan which satisfies the provisions of Code
Section 401(a), 403(a), 403(b), 457(b) or an individual retirement account or individual
retirement annuity.
2.11 “Employee” shall mean any individual performing services for the
Employer and classified by the Employer as a common law employee (regardless of retroactive
reclassification).
2.12 “Employer” shall mean the Metropolitan St. Louis Sewer District.
2.13 “Entry Date” shall mean January 1st, April 1st, July 1st, and October 1st
of each year.
2.14 “Includable Compensation” shall have the same meaning as the term
“participant’s compensation” under Section 415(c)(3) of the Code.
2.15 “Investment” shall mean each of the properties in which a Participant’s
deferred Compensation may be invested as indicated by the Participant on the Participation
Agreement executed by him. The term “Investment” shall include by way of example but not by
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way of limitation, the collective funds created by the 1995 Amended and Restated Declaration of
Trust --American Express Collective Investment Funds for Employee Benefits Trusts. Any
assets of the Employer held pursuant to this Plan and added to any of said collective funds at any
time, shall be subject to all of the provisions of said Declaration of Trust as amended from time
to time.
2.16 “Normal Retirement Age” means either of the following dates:
(i) the first day of the month coinciding with or next following a
person’s sixty-fifth (65th) birthday and completion of sixty (60)
months of Continuous Service; or
(ii) the first day of any month selected by the Participant following his
Severance from Employment on which benefits commence,
provided the Participant has seventy-five (75) Points on the day on
which he has a Severance from Employment; provided, however,
that such date is not later than the Participant’s Required
Beginning Date.
The Participant shall notify the Assistant Administrator in writing prior to the date on which the
Participant intends to utilize the “underutilization” provision of Section 4.2. Such writing shall
advise the Assistant Administrator that such prospective date shall be deemed the Participant’s
Normal Retirement Age for purposes of determining his/her maximum deferral amount under the
“underutilization” provision of Section 4.2 of this Plan. If a Participant fails to make such
written designation, his Normal Retirement Age shall mean his sixty-fifth (65) birthday.
2.17 “Participant” shall mean any Employee who becomes covered under this
Plan in accordance with the terms of Section 3. “Former Participant” shall mean a Participant
who has incurred a Severance from Employment but who has a balance remaining in his Book
Account.
2.18 “Participation Agreement” shall mean the election form on which an
Employee agrees to defer his Compensation or to indicate a change in investment instruction.
The Participation Agreement may also be referred to as the “Enrollment/Change Form.”
2.19 “Plan Ceiling Amount” shall mean the lesser of:
a. the applicable dollar amount as defined in Code Section 457(e)(15)
($11,000 for 2002), or
b. 33-1/3% of the Participant’s Includable Compensation for the
taxable year,
Effective July 1, 2002, the term “Plan Ceiling Amount” shall mean the lesser of:
a. the applicable dollar amount as defined in Code Section 457(e)(15)
($11,000 for 2002), or
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b. 100% of the Participant’s Includable Compensation.
For purposes of this section, the applicable dollar amount shall be adjusted from time-to-time as
provided in Code Section 457(e)(15).
2.20 “Plan Year” shall mean the calendar year.
2.21 “Points” shall have the same meaning as defined under the Metropolitan
St. Louis Sewer District Employees’ Pension Plan
2.22 “Required Beginning Date” shall mean the later of (i) April 1 of the
calendar year immediately following the calendar year in which the Participant attains age 70-1/2
or (ii) April l of the calendar year following the calendar year in which the Employee retires.
2.23 “Retirement” shall mean a severance of the Employer-Employee
relationship with the Employer on or after attaining Normal Retirement Age.
2.24 “Severance from Employment” shall mean a severance of the Employer-
Employee relationship with the Employer because of death, Disability, Retirement, resignation
or discharge.
2.25 “Settlement Date” shall mean the Valuation Date coinciding with or next
preceding the date on which a distribution is made to a Participant or his Beneficiary from the
Participant’s Book Account.
2.26 “Sub-Book Account” shall mean (i) the interest of a Participant in an
Investment of the Trust Fund, and (ii) any separate account established to reflect a loan to a
Participant or Beneficiary. Compensation deferred under the Plan may be further segregated into
contributions made before January 1, 1990, and contributions made after that date if the
Administrator so elects.
2.27 “Transferee Eligible Plan” shall mean an Eligible Plan to which amounts
deferred under this Plan are transferred.
2.28 “Trust” shall mean the trust established under Section 15 et seq. of this
ordinance.
2.29 “Trustee” shall mean the Trustees of the Employer.
2.30 “Trust Fund” shall mean the aggregate amounts of Contributions
transferred to the Trust established hereunder. It shall include the income, gains, and losses both
realized or unrealized which accrue thereon and any property in which such Contributions are
invested.
2.31 “Valuation Date” shall mean each business day of a calendar year.
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Section 3. Eligibility.
3.1 Any Employee is eligible to become a Participant in the Plan provided he
irrevocably elects to reduce and defer his Compensation by signing a Participation Agreement.
3.2 Any eligible Employee may quarterly elect to participate in the Plan by
agreeing to reduce his Compensation provided such election is irrevocably made on the
Participation Agreement designated by the Employer and delivered to the Administrator at least
thirty (30) days prior to the next following Entry Date to which the deferral election applies. In
the case of an individual who is employed after the Effective Date of this Plan, however, such
Employee shall have an option to elect to defer some portion of his Compensation provided such
election is irrevocably made on or before the first day the Employee begins to perform services
for the Employer. An Employee’s election to defer Compensation shall apply only to
Compensation which is paid or made available after the Employee has effectively executed and
delivered to the Administrator a Participation Agreement.
3.3 A Participant may revoke his election to participate in the Plan and to
discontinue deferral of his Compensation by delivering to the Administrator written notice thirty
(30) days prior to the pay period to which the revocation shall be effective; provided, however,
once a Participant has revoked his election to participate, he may not reinstate his election until
the next Entry Date and then only if an effective Participation Agreement is delivered to the
Administrator at least thirty (30) days prior to the Entry Date to which the reinstated election
applies.
3.4 A Participant may change the amount of Compensation he/she wishes to
defer by delivering a new Participation Agreement to the Administrator on each of the following
dates with respect to Compensation earned on and after the date indicated:
DELIVER NEW PARTICIPATION
AGREEMENT TO ADMINISTRATOR
BEFORE
WITH RESPECT TO
COMPENSATION
EARNED ON AND AFTER
December 1 January 1
March 1 April 1
June July 1
September 1 October 1
If the Participant does not deliver a new Participation Agreement to the Administrator on the
required date indicated above, his/her then current Participation Agreement shall constitute an
affirmative ratification of the then effective Participation Agreement.
3.5 Each Participant of the Plan may on the Participation Agreement (also
referred to as the “Enrollment/Change Form”) executed by him/her, select and designate in a
percentage amount, that portion of his/her Contribution which is to be invested in the various
Investments made available from time to time under the Plan. If a Participant fails to designate
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the Investment in which his/her Contribution should be invested on the Participation Agreement,
his/her Contribution shall be invested by the Trustee in its sole discretion and subject to the Trust
provision hereinafter.
3.6 On a daily basis, a Participant may alter or change the allocation of his/her
Book Account among various Investments. To implement a change in Investments, the
Participant shall comply with the administrative procedures required by the Administrator as
amended from time-to-time.
3.7 A Participant’s failure to execute a new Participation Agreement on or
before March 1, June 1, September 1, and December 1 shall constitute an affirmative ratification
of his/her then effective Participation Agreement.
Section 4. Maximum Deferral Amount.
4.1 Except as provided in Sections 4.2, 4.3, and 4.4, the maximum amount of
Compensation that a Participant may defer during the Participant’s taxable year shall not exceed
the Plan Ceiling Amount.
4.2 A Participant may make a one-time election to defer in one (1) or more of
each of the last three (3) taxable years of the Participant ending before the Participant attains
Normal Retirement Age, the lesser of:
a. twice the applicable dollar amount, as defined in Code Section
457(e)(15) ($22,000 for 2002), or
b. the underutilized limitation.
For purposes of this section the “underutilized limitation” shall mean the sum of:
(i) the Plan Ceiling Amount for the taxable year of the Participant,
plus
(ii) the Plan Ceiling Amount for any prior taxable year or years less
the amount of Compensation deferred by the Participant under the
Plan for such prior taxable year or years.
A prior taxable year shall be taken into account under subsection 4.2(b)(ii) only if:
(A) it began after December 31, 1978.
(B) the Participant was eligible during all or any portion of the taxable
year to participate in this Plan, and
(C) the Compensation deferred (if any) under the Plan during the
taxable year was subject to the Plan Ceiling Amount.
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If during the three (3) taxable years of the Participant prior to attaining Normal Retirement Age,
a Participant increases his deferral as provided herein and does not have a Severance from
Employment on his Normal Retirement Age, in taxable years subsequent to attaining Normal
Retirement Age, the Participant may continue to defer Compensation in an amount which does
not exceed the Plan Ceiling Amount but the Participant may not again make contributions
pursuant to Section 4.2.
4.3 Effective July 1, 2002, for each Plan Year commencing with the Plan Year
during which a Participant attains age 50, a Participant who has elected to contribute the
maximum deferral amount pursuant to Section 4.1 may elect to defer an additional amount of his
Compensation, not to exceed the dollar limitation set forth in Section 414(v) of the Code ($1,000
for 2002), as adjusted for any applicable increases in the cost of living in accordance with
Section 414(v).
4.4 In the case of a Participant who is eligible to make deferrals pursuant to
both Section 4.2 and Section 4.3 of the Plan, the maximum deferral amount for the taxable year
shall be the greater of:
a. the sum of the Plan Ceiling Amount and the additional deferral
permitted under Section 4.3 of the Plan, or
b. the deferral amount permitted under Section 4.2 of the Plan.
4.5 In the case of any deferrals by a Participant in excess of the annual
maximum deferral amounts described in this Article IV, such excess deferrals, with all allocable
net income, shall be distributed as soon as administratively practicable after the date the Plan
determines the amount of such excess deferral.
Section 5. Book Accounts.
5.1 The Administrator shall open and maintain a separate bookkeeping
account in the name of each Participant and shall credit to such Book Account that amount of
Compensation which the Participant elects to defer.
5.2 As of the close of business on the Valuation Date, the Administrator shall
determine the fair market value of each Investment of the Fund which shall reflect all additions
to, income earned or loss realized or unrealized by each Investment since the last Valuation Date.
The income, gains or losses reflected in such valuation shall be allocated among the Participants’
Sub-Book Account in each Investment in the proportion which the value of each Participant’s
Sub-Book Account in the respective Investment at the end of the preceding Valuation Date
(increased by additional amounts of deferred Compensation and decreased by any distributions)
bears to the aggregate value of all interest in such Investment as of the end of the preceding
Valuation Date. A Participant’s Book Account shall consist of the sum of all Sub-Book
Accounts maintained for the Participant.
5.3 Subject to the provisions of Section 13.1, a Participant’s interest in his
Book Account shall be 100% vested.
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Section 6. Benefits.
6.1 Except as provided in Sections 6.7, 6.8, 7 and 8, benefits under this Plan
shall be payable only in the event of Severance from Employment. The benefit payable under
the Plan shall be the amount credited to the Participant’s Book Account determined as of the
Settlement Date.
6.2 Subject to the provisions of Sections 6.4, 6.5, 6.6, 6.7, 6.8, and 9, a
Participant may elect to commence his benefits as soon as practicable after Severance from
Employment or to defer his benefit commencement date to any other date on or before his
Required Beginning Date. A Participant may also elect whether his Book Account shall be paid
in the form of (i) a single lump sum, (ii) in substantially equal annual installments, or (iii) in such
other form of distribution mutually agreed to by the Participant and the Plan Administrator.
Such elections shall be made on a Benefit Settlement Request Form delivered to the
Administrator as permitted under practices or procedures established by the Administrator in
accordance with Code Section 457 and any regulations promulgated thereunder.
6.3 Subject to administrative procedures established by the Administrator, a
Participant may (i) change his election of a benefit commencement date provided that the newly
elected benefit commencement date is no later that the Participant’s Required Beginning Date,
and/or (ii) change the method of payment of his benefit unless otherwise prohibited by
restrictions set forth in an annuity contract or any other applicable funding vehicle. Any
administrative procedures established by the Administrator shall be applied in a uniform and
nondiscriminatory manner.
6.4 Without regard to any other provision of this Plan, no Participant’s request
to receive benefits hereunder shall be effective unless pursuant to such request, benefits will
commence no later than the Required Beginning Date. Further, all distributions under this Plan
shall be made in accordance with Code Section 401(a)(9) and the-Income Tax Regulations
promulgated thereunder and the provisions of Code Section 401(a)(9) shall be deemed to
override any distribution option in this Plan which is inconsistent therewith.
6.5 If a Participant or Former Participant dies after benefits commence and
before the entire deferred amount is paid to the Participant, the remaining deferred amount shall
be paid at least as rapidly as under the method of payment being used as of the Participant’s or
Former Participant’s date of death. If the Participant or Former Participant dies before benefits
have commenced, the entire amount deferred must be paid to the Beneficiary:
a. over the life of the Beneficiary (or over a period not extending
beyond the life expectancy of the Beneficiary) if the Beneficiary is
the Participant’s surviving spouse, or
b. within five (5) years after the death of such Participant or Former
Participant if the Beneficiary is not the Participant’s surviving
spouse.
In all events, the benefit payable to a spousal beneficiary shall commence on or before
the later of (i) December 31 of the calendar year immediately following the calendar year in
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which the Participant died and (ii) December 31 of the calendar year in which the Participant
would have attained age 70-1/2.
6.6 If the value of a Participant’s Book Account on the Settlement Date is less
than five thousand dollars ($5,000)(or the dollar limit under Code Section 411(a)(11), if greater),
the full amount shall be paid to the Participant or his Beneficiary in a single lump sum as soon as
practicable after the Participant has a Severance from Employment.
6.7 Involuntary In-Service Distribution. The Plan may distribute the total
amount payable under the Plan to a Participant who is an active employee of the Employer if the
following requirements are met:
(i) the total amount payable to the Participant under the Plan does not
exceed $5,000 (or the dollar limit under section 411(a)(11) of the
Code, if greater);
(ii) the Participant has not previously received an in-service
distribution of the total amount payable to the Participant under the
Plan; and
(iii) no amount has been deferred under the Plan with respect to the
Participant during the two-year period ending on the date of the in-
service distribution.
6.8 Voluntary In-Service Distribution. A Participant who is an active
employee of the Employer may elect to receive a distribution of the total amount payable to the
Participant under the Plan if the following requirements are met:
(i) the total amount payable to the Participant under the Plan does not
exceed $5,000 (or the dollar limit under section 411(a)(11) of the
Code, if greater);
(ii) the Participant has not previously received an in-service
distribution of the total amount payable to the Participant under the
Plan;
(iii) no amount has been deferred under the Plan with respect to the
Participant during the two-year period ending on the date of the in-
service distribution; and
(iv) the Participant elects to receive the distribution.
Section 7. Hardship Distributions.
7.1 In the event a Participant incurs an unforeseeable emergency, the
Participant may apply to the Assistant Administrator for a lump sum distribution of part or all of
his Book Account as of the last Settlement Date. For purposes of this emergency withdrawal
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option, an unforeseeable emergency shall mean severe financial hardship to the Participant
resulting from a sudden and unexpected illness or accident of the Participant or of a spouse or
dependent (as defined in Section 152(a) of the Code) of the Participant, loss of the Participant’s
property due to casualty or other similar extraordinary and unforeseeable circumstances arising
as a result of events beyond the control of the Participant. The circumstances that will constitute
an unforeseeable emergency will depend upon the facts and circumstances, but an unforeseeable
emergency shall not include the need to send a Participant’s child to college or the desire to
purchase a residence except in extraordinary circumstances. A distribution of a Participant’s
Book Account shall not be permitted to the extent that such unforeseeable emergency may be
relieved:
(i) through reimbursement or compensation by insurance or
otherwise;
(ii) by liquidation of the Participant’s assets, to the extent the
liquidation of such assets would not itself cause severe financial
hardship, or
(iii) by cessation of deferrals under the Plan.
The final determination of whether a Participant has an unforeseeable emergency, for which a
distribution is permitted under this Plan, shall be made by the Administrator. The amount
distributed will be limited to the amount reasonably necessary to satisfy the emergency need
(including any federal, state or local taxes or penalties reasonably anticipated to result from the
distribution).
Section 8. Loans.
8.1. Amount of Loan. Effective October 1, 2002, upon the application of any
Participant, the Administrator may direct the Trustee to make a loan or loans to such Participant.
No loan shall be made in an amount less than $1,000. No more than one loan application will be
processed in any Plan Year for any Participant. No more than two loans can be outstanding with
respect to a Participant at any time. In no event shall the total amount of any such loan or loans
to any Participant, plus interest thereon, together with the balances on all other loans from the
Company’s plans to such Participant, exceed the lesser of:
(a) $50,000 reduced by the excess (if any) of (i) the highest
outstanding balance of loans of such Participant from the Plan
during the one year period ending on the day before the date on
which such loan is made, over (ii) the outstanding balance of loans
of such Participant from the Plan on the date on which such loan is
made, or
(b) One-half (1/2) of the aggregate amount which would be
distributable to the Participant from his Book Account, excluding
the portion of the Participant’s Book Account invested with
Lincoln National, in the event of the termination of employment
with the District.
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8.2. Interest on Loan. All such loans shall be considered investments of the
Trust Fund and interest shall be charged thereon at such reasonable annual rate as shall be
determined by the Administrator.
8.3. Evidence of Loan and Collateral Therefore. All such loans shall be
evidenced by a promissory note or similar document which note or document, as the case may
be, shall set forth the rate of interest to be charged thereon and the method and period of time
over which the loan must be repaid; provided, however, that such loan must be amortized in
substantially level payments, made not less frequently than quarterly, over the term of the loan.
In no event shall the repayment period exceed five (5) years unless the loan proceeds are used to
acquire a dwelling unit which, within a reasonable time from making of the loan, is to be used as
the principal residence of the Participant. Loans shall not be granted that provide for a
repayment period extending beyond the applicable Participant’s Normal Retirement Age. The
Administrator shall require adequate security for any loan which security shall be the assignment
of the Participant’s entire right, title and interest in and to any amount to which he may be
entitled under this Plan. If said loan or loans are not entirely discharged when due, the
Participant or the estate of such Participant, shall remain liable for and continue to make
payments on any balance due on said loan or loans.
8.4. Availability on Nondiscriminatory Basis. All loans shall be made subject
to uniform and nondiscriminatory rules consistently applied by the Administrator.
8.5. Loan Sub-Account. The outstanding balance of the loan amount shall be
maintained as a separate Sub-Book Account for the applicable Participant . The loan Sub-Book
Account shall contain the outstanding portion of the principal and interest charges thereon of all
outstanding loan amounts made to the Participant. The loan Sub-Book Account shall be
included as a part of the aggregate amount to the credit of such Account except that, solely for
the purpose of allocating investment results, any loan Sub-Book Account shall not be included as
a part of the aggregate amount to the credit of the Participant in his Book Account, and shall not
share in the allocation of earnings, gains or losses of the Trust Fund. All interest payments and
all repayments of principal shall, as of the end of the Plan Year in which paid, reduce the loan
Sub-Book Account and be credited to the remaining portion of the applicable Book Account.
Section 9. Plan Rollovers.
9.1 In the event a Participant has a Severance from Employment, Section 6 of
this Plan shall not apply and the amount credited to the Participant’s Book Account as of the
Settlement Date shall be directly rolled over to a Transferee Eligible Plan if the Participant (or
Former Participant as the case may be) elects to rollover his Account to the Transferee Eligible
Plan.
9.2 This Plan shall accept rollovers of amounts deferred by an Employee
under another Eligible Plan that is a Section 457(b) plan, provided such amounts are received
directly from the administrator of the other Eligible Plan and the deferred amount is transferred
in cash or cash equivalents.
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Section 10. Nonassignability.
10.1. The interest of any person in this Plan or in any distribution to be made
under the Plan shall not be assignable either by voluntary or involuntary assignment or by
operation of law, including, but not by way of limitation, execution, levy, garnishment,
attachment, pledge, or in any other manner, but excluding devolution by death or transfer due to
mental incompetency, and no right or interest of any person in the Plan or in a Book Account
shall be liable for, or subject to, any obligation or liability of such person.
Section 11. Plan Administration.
11.1. The Plan shall be administered by a committee of four persons: The
General Counsel, Secretary-Treasurer, the Director of Personnel and the Director of
Administration of the Employer. The committee of four shall be referred to as the
Administrator; a subcommittee consisting of the Director of Personnel and the Director of
Administration shall be referred to as the Assistant Administrator. The Administrator shall act as
the agent of the Employer in administering the Plan and shall be solely responsible for its
operation and enforcement. All decisions of the Administrator shall be conclusive and binding
on all persons.
11.2. The Administrator shall have such duties and powers as may be necessary
to discharge its duties hereunder, including, by way of example but not by way of limitation, the
following:
(a) To construe and interpret the provisions of the Plan;
(b) To decide all questions of eligibility and participation hereunder;
(c) To prescribe such rules and procedures as are consistent with the
provisions of the Plan and as are deemed necessary and proper by
the Administrator;
(d) To prepare and distribute, in such manner as the Administrator
determines to be appropriate, information explaining the Plan;
(e) To receive from the Employer and from Participants such
information as shall be necessary for the proper administration of
the Plan;
(f) To maintain and furnish to the Employer, upon request, such
reports with respect to the Administration of the Plan as are
reasonable and appropriate;
(g) To file with any state or federal authorities or agencies such
records and reports as may be required by law regarding the Plan;
(h) To make recommendations to the Employer regarding the
employment of agents, attorneys, accountants, consultants or other
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persons for such purposes as the Administrator considers necessary
or desirable;
(i) To review on an annual or periodic basis the performance of
investment alternatives offered under the Plan;
(j) To add or delete investment alternatives offered under the Plan;
(k) Make recommendations to the Employer regarding institution of
legal action regarding matters pertaining to the Plan;
(l) Maintain and be custodian of all records, including financial
records, relating to the Plan or to the Plan Participants; and
(m) To do all such acts, take all such action and exercise all such
rights, although not specifically mentioned herein, as the
Administrator may deem necessary or convenient to administer
this Plan and to carry out the purposes of this Plan.
11.3. Any Employee who is a member of the administrative committee may
participate in the Plan but may not participate in any discretionary action taken in connection
with his participation.
11.4. The Administrator may contract with an agent or agents to implement the
Plan and to perform some or all administrative services in connection therewith. All contracts
for service shall be executed in the same manner as other contracts between the District and third
parties.
11.5. The general administrative expenses shall be paid by the Employer. Any
expenses incurred in connection with the selection of an Investment or an optional form of
settlement under Section 6.2, however, shall be borne by the Participant or his Beneficiary, as the
case may be. For purposes of this section, general administrative expenses shall include by way
of example but not by way of limitation, legal and accounting expenses.
Section 12. Claims Procedures.
12.1. If a Participant or his Beneficiary believes that he is entitled to a benefit
under this Plan such Participant or Beneficiary shall file with the Assistant Administrator a
written claim for benefit on such forms and with such documentation as the Assistant
Administrator shall prescribe.
12.2. The Assistant Administrator shall consider and decide any claim filed
pursuant to (a), above, promptly upon receipt. A claim shall be allowed only to the extent
determined by the Assistant Administrator. If such claim is denied, in part or in full, the
Assistant Administrator shall notify the claimant in writing of such decision within 60 days after
the receipt of the claim. Such notice shall advise the claimant, in language calculated to be
understood by him, of the following:
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(i) the specific reason or reasons for the denial of the claim;
(ii) the pertinent Plan provision or provisions on which the denial is
based;
(iii) a description of any additional material or information which will
permit the claimant to perfect the claim, together with an
explanation of why such material or information is necessary; and
(iv) an explanation of the claim review procedure provided by Section
12.3 below.
12.3. If a claimant receives notice that his claim for benefits has been denied in
whole or in part, he or his duly authorized representative may, within 60 days after receipt of
notice of such denial:
(i) Make written application for a review of the decision. Such
application shall be made on a form specified by the Assistant
Administrator and shall be delivered to the Assistant
Administrator.
(ii) Review documents in the possession of the Assistant Administrator
which are pertinent to the decision under review.
(iii) Submit, in writing, issues and comments on the decision under
review.
12.4. If review of a decision is requested pursuant to Section 12.3(i) above, such
review shall be made by the Administrator who shall review all relevant documents and other
matters, including matters submitted by the claimant. The decision on review shall be made
within 60 days after the receipt by the Assistant Administrator of the request for review, or
within 60 days after the date on which the claimant submits written issues and comments
pursuant to Section 12.3(iii) above, whichever is later. The decision on review shall be in
writing, shall include the specific reasons for the decision, including references to pertinent Plan
provisions on which the decision is based, shall be written in a manner calculated to be
understood by the claimant, and shall be final.
Section 13. Plan Amendment & Termination.
13.1. The Employer reserves the right to amend the Plan in whole or in part
from time to time, by the enactment of an ordinance by its Board of Trustees and the execution
of a formal amendment to the Plan, provided that any such amendment shall not cause the Plan
to become disqualified under Section 457(b) of the Code or any other section thereof. No
amendment shall have the effect of reducing or affecting the value of any Participant’s Book
Account or any Participant’s rights which have accrued under the Plan prior to the amendment or
termination of the Plan.
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The Employer intends to continue the Plan indefinitely but reserves the right to
terminate it at any time. The Plan may be terminated by the enactment of an ordinance by the
Employer’s Board of Trustees and the execution of a formal amendment to the Plan. The
benefits under the Plan will be paid to Participant as soon as practicable after such termination of
this Plan.
Section 14. Payment of Contributions.
14.1. The Employer shall pay over to the Trustee the Contributions made to it
by the Participants of the Plan.
14.2. Payment of the Contributions to the Trustee shall be made by the
Employer not later than fifteen (15) business days after the end of the pay period to which the
Contributions relate.
14.3. Payment of the Contribution shall be in the form of cash, stocks, bonds,
notes or other marketable securities.
Section 15. Trust Fund.
The Trustee shall accept and receive all Contributions of cash, stock, bonds,
notes, or marketable securities delivered to it from time to time by the Employer, if acceptable to
the Trustee. Subject to the provisions of Section 3.5, the Trustee shall hold, invest, reinvest,
manage and administer all such Contributions and the increment, increase, earnings and income
thereof as a Trust Fund for the exclusive benefit of the Participants of the Plan.
Section 16. Earnings of Trust Fund.
All income and earnings of the Trust Fund shall be accumulated by the Trustee
and held, invested and reinvested as part of the principal of said Trust Fund. No part of such
income and earnings shall be applied otherwise than for the benefit of the Participants of the
Plan, and their beneficiaries, named, or provided for, in the Plan.
Section 17. Acceptance of Contributions.
The Trustee shall add to the principal of the Trust Fund, as originally constituted,
all subsequent Contributions made by the Employer in accordance with the Plan, but the Trustee
shall be under no duty to inquire as to the correctness of the amounts paid by the Employer, or
the value of the property contributed, nor to bring proceedings or otherwise seek to enforce
payment of Contributions from the Employer.
Section 18. Investment Powers of Trustee.
Subject to the provisions of Section 3.5 above, the Trustee shall have the powers
described in this section. The Trustee may, to the extent prudent under all of the circumstances,
retain part of the funds of the Trust Fund in a cash reserve or in time deposits, savings deposits or
certificates of deposit so as to enable the Trustee to meet the liabilities payable under the Plan.
The Trustee shall have full power and authority to manage and control the Trust Fund and to sell,
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exchange, lease (for terms extending beyond the termination of the Trust, or otherwise), grant
options on, rent, mortgage, pledge, assign, transfer or otherwise dispose of all or any part thereof,
upon such terms and conditions as the Trustee may see fit. The Trustee may invest and reinvest
all or any part of the Trust Fund in such domestic securities, including stocks, common or
preferred, debentures, shares or participation in any common trust fund, insurance company
contracts, shares or participation, in any pooled investment fund issued by any investment
company, insurance company, or by any other issuer, bonds, notes, securities or other property
(real and/or personal), as the Trustee may, in the Trustee’s absolute discretion, select, and the
Trustee may make and change such investments from time to time, according to the Trustee’s
discretion.
Section 19. Trustee’s Determination of Principal and Income.
The Trustee shall have full power to determine, in computing the earnings of the
Trust for the purpose of the determinations required by the Plan, whether any money or other
property coming into the Trustee’s hands, concerning which there may be any doubt, shall be
considered as part of the principal or income of the Trust Fund, and to apportion between such
principal and income any loss or expenditure in connection with the Trust, in such manner as the
Trustee may deem just and equitable.
Section 20. Other Powers of Trustee.
In addition to such other powers as are herein otherwise conferred upon the
Trustee, the Trustee is authorized and empowered to the extent not inconsistent with Section 3.5
herein above:
(a) To employ such agents and counsel as may be reasonably
necessary in managing, protecting and administering the Trust, and to pay such agents and
counsel reasonable compensation. Any legal counsel shall be of the Trustee’s own selection and
may be of counsel to the Trustee, in the Trustee’s individual capacity, or of counsel to the
Employer.
(b) To borrow money form any lender, upon such terms, for such
periods of time, at such rates of interest, and upon the giving of such collateral, as the Trustee
may determine.
(c) To register any securities or any property held by the Trustee in the
Trustee’s name, or in the name of his nominee, with or without disclosure that the same are held
in a fiduciary capacity, to take or keep the same unregistered, and to retain the same or any part
thereof in such manner that title thereto will pass by delivery; provided, however, that on the
books and records of the Trustee, such investments shall be shown to be part of the Trust Fund
and no such registration or holding, as herein provided, shall relieve the Trustee of liability for
the safe custody and proper disposition of such investments, in accordance with the terms and
provisions hereof.
(d) To vote any stocks, bonds or other securities of any company, or
other issuer; at any time held in the Trust Fund, and to give general or special proxies or powers
of attorney, with or without substitutions, with respect thereto; to consent to, participate in, and
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take any action in connection with, reorganizations, recapitalizations, consolidations, mergers,
liquidations and similar transactions with respect to issuers of securities constituting assets of the
Trust, and to receive and retain any securities resulting from any such transactions; to deposit the
securities of any issuers in any voting trust or with any protective or like committee, or trustee,
and to exercise any subscription rights, conversion, or other rights or privileges, with respect to
any securities in the Trust Fund.
(e) To adjust, compromise or otherwise settle any obligation or
liability due to, or from, the Trustee, as Trustee hereunder, including any claim that may be
asserted for taxes under present or future laws, state or federal, or to enforce or contest the same
by appropriate legal procedures; but the Trustee shall not be required to institute or continue
litigation unless the Trustee is in possession of funds adequate for that purpose, or unless the
Trustee is indemnified to the Trustee’s satisfaction by the Employer with respect to the Trustee’s
counsel fees and all other expenses, costs and liabilities to which, in the Trustee’s judgment, the
Trustee may be subjected by any such action; provided, however, that the Trustee shall have no
power or authority to deviate from such directions as the Employer may give to the Trustee with
respect to payment of money, either as to amount or the time or times of such payments, or as to
the persons entitled thereto.
Section 21. Disbursements.
Disbursements of the funds of this Trust shall be made by the Trustee only to, or
for the benefit of, the Participants of the Plan, or their Beneficiaries, and only at the time, in the
amount, and in the manner prescribed by written instructions from the Employer, delivered by
the Employer to the Trustee. The Trustee shall be under no obligation to check or verify the
correctness of the instructions given to the Trustee by the Employer, the Trustee’s only duty
being to follow the directions of the Employer.
Section 22. Transfers to Other Trusts.
Upon written instructions of the Employer delivered to the Trustee, the Trustee
shall transfer funds held hereunder to any other trust, which is now or hereafter may be utilized
by the Employer to fund benefits previously funded by this Trust. The Trustee shall be under no
obligation to check or verify the correctness of the instructions given to the Trustee by the
Employer, the Trustee’s only liability being to follow the directions of the Employer.
Section 23. Authority of Trustee.
The Trustee shall have exclusive authority and complete discretion with respect to
the investment, management and control of the assets of the Trust. Notwithstanding the
foregoing, the Employer may appoint an investment manager who shall have the authority to
direct the Trustee with respect, to the management (including the manner in which to vote
securities), acquisition or disposition of any assets in the Trust Fund. Any investment manager
shall be either an investment advisor registered as such under the Investment Advisors Act of
1940 or a bank, as defined in that Act. Any investment manager shall certify in writing to the
Trustee that it is qualified to act in such capacity under the preceding sentence, shall accept its
appointment as an investment manager, shall acknowledge that it is a fiduciary under this Trust
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and the Plan, and shall undertake to perform the duties imposed on it under this section. The
Employer shall certify to the Trustee (a) that it has appointed the investment manager, and
(b) that there has been duly delegated to the investment manager all of the powers and authorities
required to be exercised by it under the Trust. The Trustee may continue to rely upon all
certifications, agreements and undertakings under this section unless otherwise modified in
writing by the Employer or the Investment Manager as the case may be.
Section 24. Assets to be Maintained in the United States.
The Trustee shall not permit the indicia of ownership of any of the assets of the
Trust to be maintained at a location outside the jurisdiction of the district courts of the United
States.
Section 25. Breach of Duty by Fiduciary Other than Trustee.
The Employer shall indemnify the Trustee against all liabilities and claims
(including reasonable attorney’s fees and expenses in defending against such liabilities and
claims) against the Trustee arising from any breach of fiduciary responsibility by a fiduciary
other than the Trustee unless the Trustee knowingly participates in such breach, knowingly
undertakes to conceal such breach, has actual knowledge of such breach or, through the Trustee’s
negligence, has enabled such other fiduciary to commit a breach of the latter’s fiduciary
responsibilities.
Section 26. Reliance on Instructions.
The Trustee shall not be obligated or required to determine whether any
instructions issued to the Trustee by the Employer are, in fact, so issued in accordance with the
terms of this Plan, or the powers and duties thereunder of the Employer, but may rely absolutely
on written instructions signed by the Employer.
Section 27. Records.
The Trustee shall keep accurate and detailed accounts of all investments, receipts
and disbursements, and other transactions relating to the administration of the Trust Fund. The
Trustee shall, within 60 days after the close of each Plan Year, render to the Employer an
account of the Trustee’s administration of the Trust for the Plan Year.
Section 28. Limitations on Claims.
As between the Trustee and persons dealing with the Trustee in any manner
regarding the Plan or the Trust, the claims of such persons shall be limited to the assets of the
Trust, and the Trustee shall not be responsible for any claims in connection therewith.
Section 29. Reliance on Information from the Employer.
The Trustee, and any expert assistant engaged by the Trustee, shall be fully
protected in relying upon information furnished by the Employer which is required for the
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purpose of the administration and operation of the Plan and the Trust created hereunder, and
shall not be liable for any action taken, or omitted, in reliance on such information.
Section 30. Trustee Authorized to Act.
No person dealing with the Trustee shall be required to make inquiry as to the
authority of the Trustee to do any act which the Trustee may do hereunder; any such person shall
be entitled, conclusively, to assume that the Trustee is properly authorized to do any act which he
purports to do hereunder, and any such person shall be under no liability to any person,
whomsoever, for any act done hereunder pursuant to the written direction of the Trustee. Any
such person may conclusively assume that the Trustee has full power and authority to receive
and give receipt for any money or property becoming due and payable to the Trustee, and no
such person shall be bound to inquire as to the disposition or application of any money or
property paid or delivered to the Trustee, or paid or delivered in accordance with the written
direction of the Trustee.
Section 31. Termination.
This Trust shall be irrevocable. In case of the termination of the Plan, then the
assets of this Trust shall be distributed, as provided in said Plan, subject to any and all
amendments to said Plan which may have theretofore become effective. In case of such
termination, the Trustee shall liquidate the assets of the Trust and disburse the same to, or for the
exclusive benefit of the Participants (or their Beneficiaries) in such Plan, in the manner
contemplated in the Plan, but subject to the designation by the Employer of the particular
individuals entitled to receive payment under the Plan and the amount of payments thereunder.
In no event shall any part of the principal or income of the Trust be paid to, or for the benefit of,
the Employer, except as provided under the Plan from time to time.
Section 32. Resignation.
The Trustee may resign at any time by giving sixty (60) days written notice to the
Employer; provided that the Employer may accept such resignation at any time within such sixty
(60) day period that the Employer may fix. Upon such resignation becoming effective, the
Trustee shall perform all acts necessary to transfer the assets of this Trust to such successor
Trustee, as the Employer shall appoint and designate.
Section 33. Removal of Trustee.
The Employer may remove the Trustee at any time by giving sixty (60) days
written notice to the Trustee. Upon such removal becoming effective, the Trustee shall perform
all acts necessary to transfer the assets of this Trust to such successor Trustee as the Employer
shall appoint and designate.
Section 34. Vacancies.
In the event of any vacancy in the trusteeship of this Trust, at any time, whether
by reason of the resignation of the then incumbent Trustee, the removal of the Trustee, or any
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other cause, the Employer shall designate and appoint a successor Trustee. Any such successor
Trustee shall have all the powers herein conferred upon the original Trustee.
Section 35. Payment of Administration Expenses.
The expenses of administration of this Trust, shall be paid by the Employer.
Section 36. Payment of Taxes.
All taxes which may be imposed upon the Trust shall be considered as an expense
of, and shall be paid from, the Trust, and, until so paid, shall constitute a lien upon the assets of
the Trust, without any right of repayment from, or recourse against, the Employer or the Trustee.
Section 37. Acceptance of Trust Provisions.
The Trustee, by executing an Acceptance of Trusteeship shall be deemed to have
accepted the foregoing terms and conditions and to have agreed to carry out the provisions
thereof to be performed by the Trustee.
Section 38. General Provisions.
38.1. In construing the text of this Plan, the masculine shall include the
feminine, and the singular shall include the plural and the plural the singular wherever the
context shall plainly so require.
38.2. This Plan is intended to meet the requirements for qualification under
Section 457(b) of the Code. Any modification or amendment to the Plan may be made by the
Employer, retroactively if necessary, to establish and maintain such qualification.
38.3. Any reference herein to any section of the Code or to any other statute or
law shall be deemed to include any successor statute or law of similar import.
38.4. This Plan shall be governed and construed in accordance with the Code
and, to the extent they are not inconsistent therewith, the laws of the State of Missouri.
Section Three: The amendments set out in this ordinance shall be effective on January 1,
2002.
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The foregoing Ordinance was adopted June 26, 2002 by the following vote-
Ayes – T.W. Purcell, M.G. Reichert, A.J. Soukenik, C.D. Seward, J.W. Siscel, and M.C.
Williams.
Nays – None.
Secretary-Treasurer