HomeMy Public PortalAbout10440
SL01DOCS/386554
AMENDED BY 10623 - 9/9/99
O R D I N A N C E NO. 10440
AN ORDINANCE repealing Ordinance No. 9950, adopted September 12, 1996,
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. 9950, adopted September 12, 1996, 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repealed, without, however, altering or extinguishing the legal rights and obligations established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 of the Internal Revenue Code
of 1986, as amended and to incorporate Trust provisions in the plan document so that plan
assets are held in trust for the exclusive benefit of participants and their beneficiaries as
required under Section 1448 of the Small Business Job Protection Act of 1996 ("H.R.
3448"). This Ordinance is effective January 1, 1998.
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
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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
following meanings:
2.1 "Administrator" shall mean the committee appointed by the Employer
pursuant to Section 10.
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 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 if the automatic provisions of Section 6.2 of the Plan do not
apply.
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.
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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 only compensation paid to the Participant by
the Employer and which is attributable to services performed for the Employer as reported on
Form W-2 and shall include amounts paid for overtime. For purposes of this Plan,
compensation shall include any payment for accrued but unused either sick leave or vacation,
or both for purposes of the "underutilization" provisions of Sections 2 and 4.2.
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 457.
2.11 "Employee" shall mean any individual performing services for the
Employer as an Employee.
2.12 "Employer" shall mean the Metropolitan St. Louis Sewer District.
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2.13 "Entry Date" shall mean January 1st, April 1st, July 1st, and
October 1st of each year.
2.14 "Includable Compensation" shall mean Compensation for services
performed for the Employer which is currently includable in gross income, taking into account
the provisions of Code Section 457 and Chapter 1, Subtitle A of the Internal Revenue Code
of 1986, as amended.
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 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 fifty-fifth (55) birthday and completion of sixty (60)
months of Continuous Service; or
(ii) the first day of any month selected by the Participant following
his Separation from Service on which benefits commence,
provided the Participant has eighty (80) points on the day on
which he has a Separation from Service.
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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. For
purposes of this section "points" shall have the same meaning as the definition included in
Section 1.28 of the Metropolitan St. Louis Sewer District Employees' Pension Plan.
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 separated from service with the employer 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. $7,500, or
b. 33-1/3% of the Participant's Includable Compensation (which is
generally equal to 25% of the Participant's Compensation) for the
taxable year,
reduced by the amount, if any, which is excludable from the Participant's Federal gross
income for that taxable year because of a contribution made to (i) an annuity arrangement
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described in Code Section 403(b), (ii) a qualified cash or deferred arrangement described in
Code Section 401(k)(2), (iii) a simplified employee pension plan described in Code
Section 408(k), or (iv) an employee-funded pension plan described in Code
Section 501(c)(18). For purposes of this section, the $7,500 limit shall be adjusted from
time-to-time as provided in Section 1447 of H.R 3448 as finally enacted.
2.20 "Plan Year" shall mean the calendar year.
2.21 "Required Beginning Date" means 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 1 of the calendar year following the calendar year in which the Employee separates
from service after attaining Normal Retirement Age.
2.22 "Retirement" shall mean a severance of the Employer-Employee
relationship with the Employer on or after attaining Normal Retirement Age.
2.23 "Separation From Service" shall mean a severance of the
Employer-Employee relationship with the Employer because of death, Disability, Retirement,
resignation or discharge within the meaning of Code Section 402(d)(4)(A)(iii).
2.24 "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.
2.25 "Sub-Book Account" shall mean the interest of a Participant in an
Investment of the Trust Fund. 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.
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2.26 "Trust" shall mean the trust established under Section 14 et seq. of this
ordinance.
2.27 "Trustee" shall mean the Trustees of the Employer.
2.28 "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.
2.29 "Transferee Eligible Plan" shall mean an Eligible Plan to which amounts
deferred under this Plan are transferred.
2.30 "Valuation Date" shall mean December 31 of each calendar year and
any other date or dates as may be specified by the Administrator.
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
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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 earned and which becomes payable 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 1
July 1
September 1
October 1
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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 or absolute dollar increments, 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 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 monthly 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 Section 4.2, 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
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of each of the last three (3) taxable years of the Participant ending before the Participant
attains Normal Retirement Age, the lesser of;
a. $15,000, reduced by the amount, if any, which is excludable
from the Participant's Federal gross income for that taxable year
because of a contribution made to (i) an annuity arrangement
described in Code Section 403(b), (ii) a qualified cash or
deferred arrangement described in Code Section 401(k)(2),
(iii) a simplified employee pension plan described in Code
Section 408(k), or (iv) an employee-funded pension plan
described in Code Section 501(c)(18).
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 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
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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.
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 Separation
From Service 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.
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.
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5.3 Subject to the provisions of Section 12.1, a Participant's interest in his
Book Account shall be 100% vested.
Section 6. Benefits.
6.1 Except as provided in Sections 6.8 and 7 benefits under this Plan shall
be payable only in the event of Separation from Service. 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 Section 6.7 and in compliance with the
provisions of Section 6.4 of this Plan, a Participant's Book Account shall be paid either in the
form of (i) an annuity; (ii) in equal annual installments (not to exceed fifteen); (iii) in a
single lump sum, or (iv) in such other form of distribution mutually agreed to by the
distributee and the Plan Administrator. The Participant may express a preference for a form of
distribution but the actual form of distribution shall be subject to the approval of the
Administrator. Distribution of a Participant's Book Account shall commence sixty (60) days
after a Participant has a Separation from Service for any reason. Subject to the provisions of
Sections 6.5 and 6.6, a Participant or his Beneficiary, as the case may be, may request a
benefit commencement date later than sixty (60) days after a Separation from Service. Such
a request regarding form of payment and the benefit commencement date shall be made on a
Benefit Settlement Request Form delivered to the Administrator not later than thirty (30) days
after the Participant has a Separation from Service for any reason and before payment
commences. If no request form is filed within such thirty (30) day period, the Participant's
Book Account shall be distributed sixty (60) days after the Participant has a Separation from
Service in a single sum.
6.3 A Benefit Settlement Request Form which requests a postponed benefit
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commencement date as provided in Section 6.2 may be changed by the Participant one time
only, provided such election of a new postponed benefit commencement date is elected at
least sixty (60) days prior to the originally selected postponed benefit commencement date.
After the election of the second postponed benefit commencement date is delivered to the
Administrator, such election shall become irrevocable. If a postponed benefit commencement
date is requested, the Participant, or Former Participant, need not select the method of
payment or if one is requested may change the method requested until the date thirty (30)
days preceding the date upon which payments are to commence. Any form of benefit
distribution requested by the Participant, or Former Participant under this Section 6.3 shall be
indicated on a Benefit Settlement Request Form submitted to the Administrator and shall be
subject to approval or disapproval of the Administrator.
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 Subject to the provisions of Section 6.2, the Benefit Settlement Request
Form shall permit a Participant or Former Participant (not a Beneficiary) to elect any one of
the following optional forms of settlement in lieu of a single sum payment:
a. Straight Life Annuity - a monthly annuity payable for as long as
the recipient lives.
b. Period Certain and Life Annuity - a monthly annuity payable for
as long as the recipient lives. If the recipient dies before
receiving payments for the certain period (60, 120, 180 months
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as selected by the recipient in the Benefit Settlement Request
Form) any remaining payments for the balance of the period
certain shall be paid to the recipient's beneficiary in a lump sum.
c. Installments - substantially equal annual installments (not to
exceed fifteen), the first of which is payable on the benefit
commencement date selected by the Participant and subsequent
payments of which shall be made on each anniversary of such
benefit commencement date until the full amount is distributed.
Interest on any deferred payments shall be paid at an average
rate equal to the ninety (90) day U.S. Treasury Bill rate
determined on a daily weighted average basis during the period
between installment payments.
d. Such other form of distribution mutually agreed to by the
Participant or Former Participant and the Plan Administrator.
Any form of settlement requested and approved hereunder must be one that insures that as of
the date on which distribution commences, (a) the projected amount payable to a Participant
or Former Participant during his life expectancy exceeds two-thirds (2/3) of the maximum
amount that would have been payable to the Participant or Former Participant if no provision
were made for payment to a Beneficiary; and (b) any amount not distributed to the Participant
during his life shall be distributed after the Participant's death in a form at least as rapidly as
the payment method applicable during the life of the Participant. If a Participant or Former
Participant dies before benefits have commenced, his Book Account shall either (i) be paid to
his Beneficiary in a single sum on a postponed payment date selected by the Beneficiary or
(ii) in three (3) annual installments commencing on a date sixty (60) days after the
Participant's death.
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6.6 If a Participant or Former Participant dies after benefits commence and
before the entire deferred amount is paid to the Participant, the entire amount deferred must
be paid to the Beneficiary over;
a. The life of the Beneficiary (or any shorter period) if the
Beneficiary is the Participant's surviving spouse, or
b. In a single sum 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 which the Participant died and (ii) December 31 of the calendar year in which the
Participant would have attained age 70-1/2. The benefit payable to a nonspousal beneficiary
shall commence no later than December 31 of the calendar year immediately following the
calendar year which contains the Participant's date of death.
6.7 If the value of a Participant's Book Account on the Settlement Date is
less than twenty-five hundred dollars ($2,500), the full amount shall be paid to the Participant
or his Beneficiary in a single lump sum within sixty (60) days after the Participant has a
Separation from Service.
6.8 If (a) the value of a Participant's Book Account does not exceed $3,500,
(b) the Participant has not contributed any portion of his Compensation to the Plan within the
two year period ending on the date of distribution, and (3) the Participant has not personally
received a distribution from the Trust Fund under this Section 6.8, the Participant may elect to
receive his Book Account or the Administrator may distribute the amount in the Participant's
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Book Account without the Participant's consent.
Section 7. Hardship.
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 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 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. 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.
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Section 8. Plan to Plan Transfers
a. In the event a Participant has a Separation from Service and commences
employment with another entity which maintains an Eligible Plan, Section 6 of this Plan shall
not apply and amount deferred by the Participant under this Plan shall automatically be
transferred to the Transferee Eligible plan if;
(i) the Participant has a Separation from Service with the Employer
in order to accept employment with the entity described
hereinabove; and
(ii) the Participant (or Former Participant as the case may be) elects
to participate in the Transferee Eligible Plan not later than thirty
(30) days after the date on which he has a Separation from
Service with the Employer.
b. If a Participant elects to transfer his Book Account, or any portion
thereof, to a Transferee Eligible Plan, he shall notify the Administrator in writing no later than
the date on which he has a Separation of Service. Within thirty (30) days of the
aforementioned date, the Participant (or Former Participant as the case may be) shall provide
evidence of his participation in the Transferee Eligible Plan. If such evidence is satisfactory to
the Administrator of this Plan, the Administrator shall transfer his Book Account (or any portion
thereof as directed by the Participant) to the administrator of the Transferee Eligible Plan.
c. This Plan shall accept transfers of amounts deferred by an Employee
under another Eligible 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 9. Nonassignability
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 10. Plan Administration
10.1 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.
10.2 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;
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(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 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;
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(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.
10.3 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.
10.4 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.
10.5 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 6.5, 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 11. Claims Procedures
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a. 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.
b. 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;
(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 (c),
below.
c. 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;
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(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.
d. If review of a decision is requested pursuant to (c)(1), 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 (c)(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 12. Plan Amendment & Termination
12.1 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 of the Code or any other section
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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.
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.
Section 13. Payment of Contributions
13.1 The Employer shall pay over to the Trustee the Contributions made to it
by the Participants of the Plan.
13.2 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.
13.3 Payment of the Contribution shall be in the form of cash, stocks, bonds,
notes or other marketable securities.
Section 14. 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 15 - Earnings of Trust Fund.
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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 16 - 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.
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Section 17 - 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, 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 18 - 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 19 - Other Powers of Trustee.
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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 take any action in connection with, reorganizations, recapitalizations, consolidations,
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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 20 - 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.
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Section 21 - 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 22 - 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 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 23 - Assets to be Maintained in the United States.
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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 24 - 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 25 - 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 26 - 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.
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Section 27 - 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 28 - 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
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 29 - 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 30 - Termination.
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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 31 - 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 32 - 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 33 - Vacancies.
In the event of any vacancy in the trusteeship of this Trust, at any time, whether
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by reason of the resignation of the then incumbent Trustee, the removal of the Trustee, or any
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 34 - Payment of Administration Expenses.
The expenses of administration of this Trust, shall be paid by the Employer.
Section 35 - 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 36 - 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 37. General Provisions
37.1 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.
37.2 This Plan is intended to meet the requirements for qualification under
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Section 457 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.
37.3 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.
37.4 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, 1998.
The foregoing Ordinance was adopted September 10, 1998 by the following vote –
Ayes – C.L. Barnhart, P.P. Finn, C.D. Seward, M.C. Williams, and G. J. Sheffield.
Nays – None.
Secretary-Treasurer