§ 20-91. Plan adopted; set out.
There is hereby provided the following plan for the retirement of the salaried members of the organized police department of the city, and for the payment to such employees during their retirement and, upon their death to their widow or widower and minor children, of the pension as herein more specifically set forth, in pursuance of the Constitution of the state and the laws enacted thereunder:
Section 1. Administration
1.1. Administration of the plan. The employer shall appoint one or more plan administrators, hereinafter collectively called the "administrator," to administer the plan. The administrator, who may be the employer, an employee of the employer or the trustee hereunder (but not an employee of any corporate trustee), shall serve at the pleasure of the board of aldermen. The administrator may resign by delivering his resignation to the board of aldermen, to be effective not less than 30 days after such delivery. In the event of the removal or resignation of the administrator, the board of aldermen shall appoint a successor administrator who shall have the same powers and duties as those conferred upon his predecessor.
1.2. Powers and duties. The administrator shall prepare and maintain a summary plan description and shall furnish a copy thereof to each participant within 90 days after he becomes a participant and to each beneficiary of a participant within 90 days after he first receives benefits.
The administrator shall file such reports and other information as may be required of him by law.
The administrator shall administer the plan in accordance with its terms and shall have all powers necessary to carry out the provisions of the plan. He shall interpret the plan and shall determine all questions arising in the administration, interpretation and application of the plan. In any case where the administrator shall deny benefits to a participant or beneficiary, he shall set forth the specific reason or reasons therefor, in writing, and deliver the same to such participant or beneficiary, and shall afford such participant or beneficiary a hearing, if such participant or beneficiary makes written request for such hearing within 30 days after delivery of the written notice of denial, as aforesaid.
The administrator may adopt such regulations as he deems desirable for the conduct of his affairs. He may appoint such accountants, counsel, specialists, investment managers and other persons that he deems necessary or desirable in connection with the administration of his plan. He shall be entitled to rely conclusively upon, and shall be fully protected in any action taken by him in good faith in relying upon any opinions or reports which shall be furnished to him by any such investment managers.
The administrator shall have no duty to inquire into the amount of the employer's annual contribution or method used in determining said contribution.
1.3. Records and reports. The administrator shall keep a record of all his acts, and shall keep all such books of account, records and other data as may be necessary for proper administration of the plan. He shall notify the trustee and the employer of any action taken by him and, when required, shall notify any other interested person or persons.
1.4. Payment of expenses. Unless otherwise determined by the employer, the administrator shall serve without compensation for his services as such. The expenses of the administrator for bookkeeping and recordkeeping shall be paid by the trust fund; and all other expenses of the administrator incident to his functioning, including but not limited to fees of accountants, counsel, investment managers and other specialists, bond and insurance premiums, and other costs of administering the plan shall be paid by the employer.
The employer may, at its sole cost, purchase insurance to cover the potential liability of the administrator to the plan.
1.5. Notice to participant. The administrator shall furnish to each employee becoming a participant in the plan a written, nontechnical notification of the availability of the election provided in section 5.5 regarding the method of payment of benefits. Such notice shall explain in nontechnical language the methods of payment which the participant may elect, and it shall describe the effect of the participant's failure to make an election. It shall also describe the financial effect of electing the joint and survivor annuity option versus the option of an annuity solely for the life of the participant.
Section 2. [Eligibility to Participate]
2.1. Conditions of eligibility. All "employees" who were eligible to participate in the plan on or prior to June 1, 1986, shall continue to participate in the plan as amended; provided, however, that no employee who was a participant on or prior to June 1, 1986, shall forfeit any benefit as a result of this amendment to the plan; and, provided further, that any "employee" who has attained 21 years of age and has completed no less than 583 1/3 hours of service during the period from June 1, 1986, through and including December 31, 1986, shall be eligible to participate in the plan as of January 1, 1987. Any other employee shall be eligible to participate in the plan on January 1 or July 1 after the employee has attained 21 years of age and has completed no less than 1,000 hours of service during a consecutive 12-month period based upon his or her employment date or an anniversary thereof. In the plan year in which an employee joins participation in the plan, he shall be considered a participant for the entire plan year regardless of the date his participation actually commences.
Any participant who has terminated his employment and is later rehired after the passing of a consecutive 12-month period based upon that participant's employment date or an anniversary thereof during which he does not complete more than 500 hours of service, other than by reason of an authorized leave of absence pursuant to section 2.4, shall not be eligible to rejoin participation until the first day of the next plan year beginning after the date on which such person recommences employment. However, after such person has rejoined participation hereunder, he shall be deemed to have recommenced participation for all purposes hereunder as of the date of his reemployment.
A former participant who received a distribution may reinstate his account if (a) he again performs an hour of service as a participant before incurring five consecutive breaks in service and (b) he repays to the trustee the full amount of the distribution(s) (excluding any amount of such distribution attributable to his voluntary contributions) no later than the date he incurs the fifth consecutive break in service.
2.2. [Hours of service.] Each employee will be credited with an hour of service for:
(1)
Each hour for which an employee is directly or indirectly paid or entitled to payment by the employer for the performance of duties. These hours shall be credited to the employee for the computation period or periods in which the duties are performed; and
(2)
Each hour (up to a maximum of 50 hours) for which an employee is directly or indirectly paid or entitled to payment by the employer (irrespective of whether the employment relationship has terminated) due to vacation, holiday, illness, incapacity (including disability), layoff, jury duty, military duty or leave of absence other than for the performance of duties; these hours shall be credited to the employee for the computation period or periods in which the nonperformance of duties occurred; and
(3)
Each hour for which back pay, irrespective of mitigation of damage, has been either awarded or agreed to by the employer. These hours shall be credited to the employee for computation period or periods to which the award or agreement pertains rather than computation period in which the award, agreement, or payment was made.
The special rule for determining hours of service for reasons other than the performance of duties as provided in DOL Reg 2530.200b-2(b), is incorporated herein as if fully set forth herein. Any ambiguities in the above definition shall be resolved in favor of the position giving the employees credit for time and hours of service.
2.3. Application for participation. Coincident with the date a new employee commences employment with the employer, he shall be notified of the existence of the plan and he shall be provided with an application to participate. Such application may be submitted at that date or any date thereafter. However, failure to complete such application shall not prevent any employee from becoming a participant in the plan. Such application shall provide the employee with the opportunity to designate his beneficiary and the method for payment of his benefits under the plan.
The information set forth in the application shall be binding on the employee and his beneficiary. However, the employee may revise the information and election contained in his application at any time prior to payment of his benefits hereunder.
2.4. Authorized leave of absence. An authorized leave of absence is an absence approved by the employer pursuant to the uniform application of the personnel policy of the employer.
2.5. Effect of authorized leave of absence. During an authorized leave of absence:
(a)
A participant will not incur a break in service if the failure to accrue 500 hours of service during the plan year is due solely to such authorized leave of absence;
(b)
A participant's account shall share in the allocation of net earnings, net losses, taxes and expenses of the trust during such period;
(c)
For purposes of determining eligibility to share in employer contributions under section 4.2, a participant's employment shall be deemed to have been continuous during such period.
2.6. Determination of eligibility. The administrator shall determine the eligibility of each employee for participation in the plan.
2.7. Uniformity of application. Specifically with regard to the application of the provisions of this section 2, employees in similar circumstances shall be treated alike by the employer.
2.8. Inactive status. In the event that any participant shall fail, in any year of his employment after the effective date, to complete a "year of service" as defined in section 2.2, but does complete more than 500 hours of service during such year, his employer contribution account shall be placed on inactive status. In such case, such year shall not be considered as a year of service for the purposes of determining the participant's vested interest in accordance with section 5.4, and the participant shall not share in the employer's contribution or in forfeiture allocations for any such year, but he shall continue to receive income allocations in accordance with section 4.4. In the event such participant accumulates 1,000 hours of employment in a subsequent year, his employer contribution account shall revert to active status with full rights and privileges under this plan restored.
Section 3. Contributions
3.1. Contributions by employer.
(a)
Subject as hereinafter provided, for the plan year ending in 1982 and each plan year thereafter, the employer shall contribute to the trust fund an amount that is equal to 0 percent [effective June 30, 2012] of each participant's "compensation" (as hereinafter defined) for such plan year. Employer contributions under this subparagraph (a) shall be made only for those employees who are employed on the last day of the respective plan year and who complete a year of service during such year. However, new participants in the year they join participation shall have their entire compensation for the year used in determining the contribution made for them.
(b)
Subject as hereinafter provided, and in addition to the employer contributions made pursuant to subparagraph (a) of this section 3.1, the employer shall make such additional contributions to the trust fund annually as are necessary in order to fund the "past service credits" which were guaranteed when the plan was established in 1969.
Employer contributions for past service credits under this subparagraph (b) shall be made only for those employees who are eligible for past service credits as set out above and who are employed on the last day of the respective plan year for which such contributions are made.
(c)
Notwithstanding anything herein to the contrary, the total contributions made by the employer for any plan year, pursuant to this section 3.1, shall not exceed the maximum amount deductible as employee compensation from the employer's income for such year, plus previous years, under the Internal Revenue Code of the United States, or any statute of similar import.
3.2. Time of payment of employer contributions. The employer shall pay to the trustee its contribution for each year within the time prescribed by law.
3.3. Amount of employer contribution. The trustee shall not be obligated to inquire into the amount or method of computation of the employer's contributions, but shall accept without question any and all amounts turned over to the trustee by the employer. Such contributions shall represent irrevocable contributions of the employer to the trust fund created hereunder, except in the case of contributions made as a result [of] a "mistake" permitting refund of such contribution to the employer under regulations of the Internal Revenue Code.
Section 4. Allocation
4.1. Participants' accounts. The trustee shall establish and maintain an employer contribution account in the name of each participant to which he shall credit all sums allocated to each such participant pursuant to the provisions of section 4.2 hereof.
4.2. Allocation of annual contributions.
(a)
The trustee, as of the close of business on the last day of each plan year for which the employer shall make a contribution, shall allocate the contribution made by the employer pursuant to section 3.1 hereof with respect to each participant's compensation or past service credit to each respective eligible participant's employer contribution account. Regardless of an employee's exact date of entry into the plan during any given plan year, each newly eligible participant shall have his allocable share of the employer's contribution for such year under section 3.1(a) allocated to his account based upon his total compensation for such year.
(b)
Notwithstanding anything herein to the contrary, the annual additions made to the employer contribution accounts of any participant under all qualified pension plans maintained by the employer shall not exceed the lesser of (a) $25,000.00 plus such adjustment for cost of living increases as are made pursuant to Internal Revenue Code, section 415(d); or (b) 25 percent of the participant's compensation. In the event that any participant's total employer contribution accounts would receive total annual additions in excess of limitations described in the preceding sentence and such excess annual additions result from annual additions made under this plan, such annual additions shall be reallocated among the employer contribution accounts of the other participants in the plan according to their relative levels of compensation for such year.
4.3. Valuation of the trust fund. The trustee, as of the last day of each plan year, shall determine the net worth of the assets of the trust fund and, within 90 days thereafter, report such value to the administrator in writing. A copy of such report shall be furnished by the administrator to each participant within 210 days after the aforesaid valuation date. In determining such net worth, the trustee shall evaluate the assets of the trust fund at their fair market value as of such valuation date and shall deduct all expenses for which the trustee has not yet obtained reimbursement from the employer or from the trust fund. Such valuation shall include any contribution made or to be made by the employer for the respective plan year.
4.4. Valuation of accounts. The trustee shall determine the value of the accounts of the participants as of the last day of each plan year and allocate thereto any income or loss according to the respective account balances as of the immediately preceding valuation date. Notwithstanding anything herein to the contrary, such valuation shall include any contribution made by the employer for the plan year then under consideration for such accounts, regardless whether that contribution is made before or after the last day of such plan year.
Section 5. [Distribution]
5.1. Distribution upon retirement. Subject to postponement upon the mutual consent of the participant and the employer, every participant shall retire for the purposes hereof on the first day of the month after attaining his normal retirement date. In addition, with the employer's consent, early retirement may be permitted for a participant who has attained his early retirement date and requests such early retirement in writing.
The normal retirement date for each participant is when he attains the age of 65. The early retirement date for each participant is when he attains the age of 55.
If a participant terminates his employment on or after his normal retirement date, his interest in the portion of the trust fund then credited to his account shall be 100 percent vested and nonforfeitable. Following such a participant's retirement, the plan administrator, in accordance with the provisions of section 5.5 hereof, shall direct the trustee to distribute such participant's account in the manner designated by the participant. No distribution shall be made to a participant, regardless of age, until he has in fact retired.
The employer may, with the mutual consent of the participant, from time to time postpone the normal retirement date for a participant to a specified date beyond the participant's 65th birthday. The participant whose retirement is thus postponed shall share in the contributions made and forfeitures reallocated during said extended period and shall remain fully vested during such period.
If a participant is permitted to take early retirement hereunder by the employer, only that portion of the participant's account which is vested and nonforfeitable under the schedule set forth in section 5.4 hereof will be distributed to the participant. The remainder will be forfeited upon the occurrence of a break in service. Distribution will be made in the manner designated by the participant under section 5.5 hereof and shall commence during the time limits prescribed for payment of normal retirement benefits.
5.2. Distribution upon death. Upon the death of a participant before retirement or upon death before other termination of his employment, the monetary value of such portion of the trust fund then credited to his account shall become fully 100 percent vested and nonforfeitable. The administrator, in accordance with the provisions of section 5.5 hereof, shall direct the trustee to make distribution from the trust fund of a portion thereof of said monetary value to the person designated therefor by the participant, or, if there is no designation, to such participant's surviving spouse. If there be no surviving spouse, then such distribution shall be made to such participant's estate.
Upon the death of a former participant, the administrator, in accordance with the provisions of section 5.5 hereof, shall direct the trustee to distribute the then value of the vested, nonforfeitable portion of the former participant's account remaining undistributed to the person designated therefor by such former participant, or, if there is no designation, to such former participant's surviving spouse. If there be no surviving spouse, then such distribution shall be made to such participant's estate.
The administrator may require such proper proof of death and such evidence of the right of any person to receive payment of the vested account of a deceased participant or former participant as he may deem proper and desirable. His determination of death and of the right of any person to receive payment shall be conclusive.
Each employee, upon becoming a participant, may designate the person to receive his vested portion of the trust fund in the event of his death and, in addition, another person to receive such portion if the first person should not survive the employee. Such designations shall be made in a form satisfactory to the administrator. Any participant may at any time revoke or change his designation by filing written notice of such revocation or change with the administrator.
5.3. Distribution in event of disability. Upon the determination of the total and permanent disability of a participant, the amount credited to his account shall become fully 100 percent vested and nonforfeitable. The administrator, in accordance with the provisions of section 5.5 hereof, shall direct the trustee to distribute to such participant the then value of such account. Upon such distribution, such account shall be cancelled.
The total and permanent disability of any participant shall be determined and certified to by a physician selected by the employer.
5.4. Payment on termination of employment for other reasons. Upon the termination of employment of a participant for any reason other than death, retirement due to age, or disability, the administrator in accordance with the provisions of section 5.5 hereof, shall direct the trustee to distribute to such participant, following the elapse of a break in service as defined in section 2.2, the vested portion in his account in accordance with the schedule below.
The portion of said participant's account which shall become vested is based on the completed years of service of the participant after attaining the age of 21 years, as set out below, including all such completed years of service worked by the employee for the employer, regardless whether any break in service has ever occurred, to the maximum of 100 percent; provided, however, that an employee who terminates his employment for whatever reason shall be deemed to have a completed year of service for the plan year in which he terminates if he has accumulated 1,000 hours of service during the plan year.
Completed Years of Service
After Age 21 with
the EmployerPercentage of
Account VestedLess than 3 ..... 0 3 or more, but less than 4 ..... 30 4 or more, but less than 5 ..... 40 5 or more, but less than 6 ..... 50 6 or more, but less than 7 ..... 60 7 or more, but less than 8 ..... 70 8 or more, but less than 9 ..... 80 9 or more, but less than 10 ..... 90 10 or more ..... 100 Notwithstanding anything herein to the contrary, 100 percent of the vested (nonforfeitable) portion of the trust fund of any participant whose employment has been terminated as aforesaid, may be held at the discretion of the trustee, subject to adjustment as hereinabove provided in sections 4.3 and 4.4, until such participant shall be entitled to distribution thereof in accordance with the provisions of sections 5.1, 5.2 and 5.3 hereof. The nonvested portion of the account of a participant who has terminated his employment shall be held until a break in service shall have occurred and shall then be forfeited and shall be applied as provided in section 5.9 hereof.
Notwithstanding anything herein to the contrary, any participant who completes 583 1/3 hours of service during the short plan year from June 1, 1986, through and including December 31, 1986, shall receive a year of service for such short plan year.
5.5. Method and medium of payment. The distribution provided hereunder shall be made within 60 days after the close of the plan year in which the event entitling a participant or his beneficiary to distribution shall have occurred and shall be made in such one or more of the following methods as the employee may elect, in writing, in a form satisfactory to the administrator, to wit:
(a)
The purchase of a nontransferable lifetime annuity contract for the participant in such an amount as may be purchased with all of the funds then credited to the participant's account as provided for herein; [or]
(b)
The purchase of a nontransferable joint and survivor annuity contract for the participant and his or her spouse in such an amount as may be purchased with all of the funds then credited to the participant's account as provided for herein, which joint and survivor annuity contract provides for the payment of a reduced amount of retirement allowance to the participant during his lifetime and for the continuance of the same in equal or reduced amounts as he may elect, but not less than 50 percent of the amount paid to the participant during his lifetime, to the participant's spouse for the lifetime of the spouse after the participant's death; or
(c)
One lump sum payment, subject to approval of the administrator; or
(d)
Substantially equal payments in monthly, quarterly, semiannual or annual installments, over a period not exceeding ten years (until the account is exhausted), after first having segregated the aggregate amount thereof in a special account or fund; provided, however, the unpaid balance of any such special account or fund which is deferred and is to be paid in installments shall be subject to adjustment as hereinabove provided in sections 4.3 and 4.4; and provided further that the period selected does not exceed the life expectancy of the participant.
The participant shall be entitled at any time prior to the commencement of or his receipt of benefits hereunder to make an election or revoke an election and make a new election, except as otherwise limited herein. A break in service during any period of employment shall not invalidate an election or revocation of an election made, as authorized herein, nor prevent an election from being made or revoked.
Notwithstanding anything herein to the contrary, however, any married participant who has not elected in writing one of the other options hereinbefore set out prior to the date for payment of his benefits shall be provided and shall be deemed to have elected a joint and survivor annuity as set out in section 5.5(b) hereof providing for a survivor annuity equal to 50 percent of the amount paid to the participant during his lifetime.
If the participant is unmarried on the date giving rise to distribution, and he does not have a written designation of the method for payment of his benefits on file with the plan administrator at the time when distribution is to commence, distribution shall be made in one of the methods provided above as elected by the administrator; provided, however, a joint and survivor annuity may not be elected by the administrator.
5.6. Valuation and distribution. The valuation to be given the portion of the trust fund to be distributed to participants, or the persons designated by them or to their estates, shall be based upon value of the trust fund last determined by the trustee.
5.7. Administrative powers relating to payment. Payments to participants and beneficiaries shall be made in cash, securities or other property, as the administrator, with the concurrence of the trustee, may determine. Payments to a participant or beneficiary who is under legal disability or who, by reason of illness or mental or physical disability, is, in the opinion of the administrator, unable properly to administer such payments, may be made by the trustee in such of the following ways as the administrator shall direct:
(a)
Directly to such participant or beneficiary; or
(b)
To the legal representative of such participant or beneficiary; or
(c)
To some relative by blood or marriage, or friend, for the benefit of such participant or beneficiary.
5.8. Statement of benefits on distribution. The trustee, upon making distribution to a participant or his beneficiary, shall furnish such participant or beneficiary a statement setting forth the amount and nature of the distribution and the amount, if any, of the deferred vested benefits held in the plan for such participant.
5.9. Forfeitures. Portions of participants' accounts which are forfeited as provided in section 5.4 of this plan shall be accumulated during the year in which they occur and at the end thereof the total of such accumulations shall be applied to reduce the employer's contributions for the current year or for the succeeding year or years in the trustee's discretion.
Section 6. Trustees
6.1. Establishment and acceptance of trust. The trustee shall receive contributions to the trust fund in cash or other property approved by the administrator for acceptance by the trustee. Contributions so received, together with the income therefrom (herein called the "trust fund"), shall be held, managed and administered in trust pursuant to the terms of this agreement. The trustee hereby accepts the trust fund created hereunder and agrees to perform the duties under this agreement on his part to be performed.
6.2. Investment of the trust fund. Responsibility for the management and control of the trust fund shall be vested in the discretion of the trustee and in such one or more investment managers as may be appointed by the trustee with the consent of the employer. Any investment manager hereunder appointed by the trustee shall be empowered to control and manage the investment and reinvestment of the portion of the trust fund charged to his care. The trustee shall have the express authority to contract with an insurance company for investment of the plan's funds in a group annuity contract.
Although separate records of account shall be kept in the name of each participant and each beneficiary entitled to annual payments, this shall in no way restrict the trustee or the investment manager in the investment of the assets of the trust fund which, for investment purposes, may be administered as a single fund.
The assets held in the trust fund shall be invested to assure, to the extent possible, that substantial funds will be accumulated to provide the retirement benefits hereunder. Investments may include but shall not be limited to mutual funds, stocks, common or preferred, any suitable collective investment fund, corporate bonds, including but not limited to certified bonds, certificates of deposit and like assets. The selection, retention and disposition of any specific investment from among the classes of authorized investments designed above, such as certificates of deposit or mutual funds for example, shall be made by the trustee in his discretion. The trustee shall not be liable in the event that up to and including 100 percent of the trust assets are prudently invested in any one class of investments, such as certificates of deposit. The trustee shall discharge the investment of the assets in accordance with the funding policy and guidelines established by the employer or the plan and communicated to the trustee.
In making investments of the assets of the trust fund, the trustee shall discharge his duties solely in the interest of the participants and beneficiaries and for the exclusive purpose of providing benefits to participants and their beneficiaries and defraying reasonable expenses of administering the plan, with the care, skill, prudence and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims, by diversifying the investments of the trust fund in the types of assets enumerated above.
The investment manager shall, to the extent of the funds under its control, be responsible for providing proper diversification with respect to the trust fund. The trustee shall not be liable for losses or diminution of the portion of the trust fund under the control of the investment manager, which diminution is incurred by the management of the investment manager, unless the trustee knowingly participates in, or knowingly undertakes to conceal, an act or omission of such investment manager and the trustee has reason to know that such act constitutes a breach of fiduciary responsibility by the investment manager. Upon any direction of the investment manager, the trustee shall make, execute, acknowledge and deliver any and all documents or instruments of transfer and conveyance that may be necessary to carry out the investment manager's foregoing powers and responsibilities.
In the event any of the trust funds are used to purchase and pay premiums on ordinary insurance contracts, and such funds have been accumulated for at least two years, then in such event (1) the aggregate life insurance premiums for each participant shall be less than one-half of the aggregate of the contributions allocated to the credit of the participant at any particular time, and (2) the trustee shall be required to convert the entire value of the life insurance contract at or before retirement into cash, or to provide periodic income, so that no portion of such value may be used to continue life insurance protection beyond retirement, or to distribute the contract to the participant.
6.2A. Participant direction of investments. Each participant shall have the right and power to direct in writing particular investments for such participant's account. If the trustee determines that such investments are suitable for the investment of trust funds, as described in section 6.2 hereof, the trustee may acquire and hold such specific assets directed by such participant in such participant's account. If the participant and trustee agree as to the holding of specific assets in such participant's account, the trustee shall be relieved of any liability for failure to diversify the assets held in such participant's account and for failure to dispose of such assets without further direction from the participant.
In the event specific assets are held for the accounts of individual participants, as provided above, such respective accounts shall receive the income from such assets together with a pro rata share of the general income of the trust, based upon the share in the unallocated assets of the trust fund of the respective participant. Further, in such event, the trustee shall, at all times, keep separate books of account showing those trust assets which are allocated to individual participants' accounts, which records shall be open for inspection by all participants and other interested parties.
6.3. Powers of trustee. The trustee shall have the following powers and authority in the administration of the trust fund, to be exercised in accordance with and subject to the provisions of section 6.4 hereof.
(a)
To purchase, or subscribe for, any securities or other property and to retain the same in trust.
(b)
To sell, exchange, convey, transfer or otherwise dispose of any securities or other property held by him, by private contract or at public auction. No person dealing with the trustee shall be bound to see to the application of the purchase money or to inquire into the validity, expediency or propriety of any such sale or other disposition.
(c)
To vote upon any stocks, bonds or other securities; to give general or special proxies or powers of attorney with or without power of substitution; to exercise any conversion privileges, subscription rights or other options, and to make any payments incident thereto; to oppose, or to consent to, or otherwise participate in, corporate reorganizations or other changes affecting corporate securities, and to delegate discretionary powers, and to pay any assessments or charges in connection therewith; and generally to exercise any of the powers of an owner with respect to stocks, bonds, securities or other property held as part of the trust fund.
(d)
To cause any securities or other property held as part of the trust fund to be registered in his own name or in the name of one or more of its nominees, and to hold any investments in bearer form; but the books and records of the trustee shall at all times show that all such investments are part of the trust fund.
(e)
To borrow or raise money for the purpose of the trust in such amount, and upon such terms and conditions, as the trustee shall deem advisable; but in no event shall the trustee pledge or impose any lien on all, or any part, of the trust fund to secure said loan.
(f)
To keep such portion of the trust fund in cash or cash balances as the trustee may, from time to time, deem to be in the best interests of the trust created hereby, without liability for interest thereon.
(g)
To accept and retain for such time as he may deem advisable any securities or other property received or acquired by him as trustee hereunder.
(h)
To make, execute, acknowledge and deliver any and all documents of transfer and conveyance and any and all other instruments that may be necessary or appropriate to carry out the powers herein granted.
(i)
To settle, comprise [sic] or submit to arbitration any claims, debts or damages due or owing to or from the trust fund, to commence or defend suits or legal or administrative proceedings and to represent the trust fund in all suits and legal and administrative proceedings.
(j)
To employ suitable agents, and counsel (who may be counsel for the employer), and to pay their reasonable expenses and compensation.
(k)
To do all such acts, take all such proceedings, and exercise all such rights and privileges, although not specifically mentioned herein, as the trustee may deem necessary to administer the trust fund, and to carry out the purposes of this trust.
6.4. Directing the trustee. The powers granted the trustee under sections 6.2 and 6.3 shall be exercised by the trustee in his sole discretion.
6.5. Payments from the fund. The trustee shall from time to time on the written direction of the administrator, make payments out of the trust fund to such persons, in such manner, in such amounts and for such purposes as may be specified in such written directions; and upon such payment being made, the amount thereof shall no longer constitute a part of the trust fund. Each such written direction shall be accompanied by a certificate of the administrator that the payment is in accordance with the plan. The trustee shall not be responsible in any way for the application of such payments or for the adequacy of the trust fund to meet and discharge any and all liabilities under the plan.
6.6. Payment of compensation, expenses and taxes. The trustee shall be paid in accordance with such schedule of fees as shall have been adopted and published by said trustee and in effect at the time such services are rendered; provided that no individual trustee and no trustee who is also an employee of the employer shall be entitled to any compensation from the plan or trust for his services as trustee whatsoever.
The trustee shall be reimbursed for any reasonable expenses, including but not limited to fees of accountants, counsel, investment managers and other specialists, premiums for bonds and other costs incurred in the administration of the trust fund. The expenses of the trustee for bookkeeping and recordkeeping shall be paid by the trust fund. All other expenses of the trustee and compensation of the trustee shall be paid by the employer, but until paid shall constitute a charge upon the trust fund. All taxes of any and all kinds whatsoever that may be levied or assessed under existing or future laws upon, or in respect of, the trust fund or the income thereof shall be paid from the trust fund.
The employer may, at its sole cost, purchase insurance to cover the potential liability of the trustee to the plan.
6.7. Accounting. The trustee shall keep accurate and detailed accounts of all investments, receipts, disbursements and other transactions hereunder. All accounts, books and records relating to such transaction shall be open to inspection and audit at all reasonable times by any person designated by the administrator.
Within 60 days following the close of each plan year of the trust or the receipt of the employer's contribution for such plan year, whichever is later, and within 60 days after the removal or resignation of the trustee, as provided in section 6.10 hereof, the trustee shall file with the administrator a written account setting forth all information required by any report or statement to be filed under the Internal Revenue Code of the United States, or any statute of similar import for such plan year or during the period from the close of the last plan year to the date of such removal or resignation. The trustee shall also file with the administrator a written account setting forth all cash receipts and disbursements on a quarterly, semiannual or annual basis, as the trustee may determine, said account to be filed within 30 days following the close of the period covered by said account. Upon the expiration of 60 days from the date of filing such annual or other account, the trustee shall be forever released and discharged from all liability and accountability to the plan administrator with respect to the propriety of its acts and transactions shown in such account, except with respect to any such acts or transactions as to which the administrator shall file with the trustee written objections within such 60-day period.
6.8. Immunity of trustee.
(a)
The trustee shall not be liable for the making, retention or sale of any investment or reinvestment made by him, as herein provided, nor for any loss to or diminution of the trust fund, unless due to the trustee's negligence, willful misconduct, lack of good faith or breach of his fiduciary duties and responsibilities hereunder or imposed by the Internal Revenue Code of the United States of any statute of similar import.
(b)
The trustee shall be fully protected in relying upon a certification of the administrator with respect to any instruction of direction of the administrator and also in relying upon the certification of an officer or agent of the employer as to the appointment of the administrator and in continuing to rely upon such certification until a subsequent certification if filed with the trustee. The trustee shall be fully protected in acting upon any instrument, certificate or paper believed by him to be genuine and to be signed or presented by the proper person or persons; and the trustee shall be under no duty to make any investigation or inquiry as to any statement contained in any such writing but may accept the same as evidence of the truth and accuracy of the statements therein contained.
(c)
The employer agrees to indemnify the trust fund and the trustee against any liability imposed as a result of a claim asserted by any person or persons under the community property or other laws of any state where the trustee has acted in good faith in reliance on a written direction of the administrator.
(d)
The trustee shall have no duty to inquire into the amount of the employer's annual contribution or the method used in determining the amount of the employer's contribution, but shall be accountable only for funds actually received by him.
6.9. Advice of employer, administrator or counsel. If at any time the trustee is in doubt concerning the course which he should follow in connection with any matter relating to the plan, he may request the employer or administrator to advise him with respect thereto, and shall be protected in relying upon the advice or direction which may be given by the employer or administrator in response to such request. The trustee may consult with legal counsel, who may be counsel for the employer, with respect to the meaning or construction of this plan and trust and the obligations and duties of the trustee hereunder, and with respect to any action taken or omitted in good faith pursuant to the advice of legal counsel.
6.10. Removal, resignation and appointment of successor trustees. The trustee may be removed by the employer at any time upon 60 days' notice in writing to the trustee and the administrator. The trustee may resign at any time upon 60 days' notice in writing to the employer and the administrator. Upon such removal or resignation of the trustee, the employer shall appoint a successor trustee or trustees who shall have the same powers and duties as those conferred upon his, its or their predecessor.
6.11. Incapacity of employer. If at any time the employer shall be incapable of giving directions, instructions or authorizations to the trustee, as herein provided for, the trustee may act and shall be completely protected and without liability in so acting without such directions, instructions or authorizations, as he, in his sole discretion, deems appropriate and advisable in the circumstances for the carrying out of the provisions of this plan and trust.
Section 7. Amendment and Termination
7.1. Amendment. The employer may at any time, and from time to time, amend, in whole or in part, any or all of the provisions of this agreement. Any such amendment shall become effective upon delivery of a written instrument, executed by order of the board of aldermen, to the trustee and the endorsement of the trustee of his receipt or of his written consent thereto, if such consent is required; provided, however, no such amendment which affects the rights, duties or responsibility of the trustee may be made without the trustee's written consent. No amendment shall cause any reduction in the amount heretofore credited to any participant or cause or permit any portion of the trust fund to revert to or become the property of the employer. Any amendment which changes the vesting schedule hereinabove set forth in section 5.4 shall not become effective with reference to any participant having five or more years of service unless such participant is permitted to elect, in a writing filed with the administrator, to have his nonforfeitable percentage computed under the plan without regard to such amendment within 60 days after the latest of the following events: (1) The adoption of such amendment; (2) the effective date of such amendment; or (3) the date when notice of such change is given to the participant.
Under no circumstances may any part of the trust fund (other than such part as is required to pay taxes and administration expenses) be used for or diverted to purposes other than for the exclusive benefit of the participants or their beneficiaries or estates, whether by operation or natural termination of the trust, by power of revocation or amendment, by the happening of a contingency, by collateral arrangement, or by any other means.
7.2. Termination of plan. The employer may at any time discontinue its contributions hereunder or terminate this agreement and the trust hereby created, or written notice thereof to the trustee, the administrator and the participants.
Upon termination or partial termination of the plan all of the funds then credited to the participants' accounts shall become fully vested, and shall not thereafter be subject to forfeiture. Upon termination of the trust, the administrator shall direct the trustee to distribute all assets remaining in the trust fund, after payment of any expenses properly chargeable against it, to the participants in accordance with the value of the accounts credited to such participants as of the date of such distribution, in cash or in kind and in such manner as the administrator shall determine.
7.3. Withdrawal by employer. The employer may elect to withdraw from participation in the plan hereby established without terminating the trust hereunder.
Section 8. Miscellaneous
8.1. Participant's rights. Neither the establishment of the plan hereby created, nor any modification thereof, nor the creation of any fund or account, nor the payment of any benefits, shall be construed as giving to any participant or other person any legal or equitable right against the employer, or any officer or employee thereof, or the trustee, or the administrator, except as provided herein or by law. Under no circumstances shall the terms of employment of any participant be modified or in any way be affected hereby. All participants in like circumstances must be treated equally under uniform rules, which are uniformly applied and without discrimination or favor of, or against any participant.
8.2. Spendthrift clause. The right of any participant or beneficiary to any benefit or to any payment hereunder or to any separate account shall not be subject to alienation or assignment, nor shall the same be subject to seizure by creditors of such participant or beneficiary under any writ or proceeding at law or in equity. If such participant shall attempt to assign, transfer or dispose of such right, or should such right be subjected to attachment, execution, garnishment, sequestration or other legal, equitable or other process, it shall ipso facto pass to such one or more as may be appointed by the administrator from among the beneficiaries, if any, theretofore designated by such participant and the spouse and blood relatives of the participant. However, the administrator in his sole discretion may reappoint the participant to receive any payment thereafter becoming due either in whole or in part. Any appointment made by the administrator hereunder may be revoked by him at any time, and a further appointment made by him.
8.3. Delegation of authority by employer. Whenever the employer under the terms of this agreement is permitted or required to do or perform any act or matter or thing, it shall be done and performed by an officer thereunto duly authorized by its board of aldermen.
8.4. Consolidation or merger. Nothing in this agreement shall prevent the consolidation or merge of the employer with or into any other municipal corporation, and the successor corporation formed and resulting from such consolidation or merger shall have the right to become a party to this agreement by adopting the same by resolution and by executing a proper supplemental agreement with the trustee. If within 90 days from the effective date of such consolidation, merger or sale of assets such new corporation does not become a party to this agreement, as above provided, this plan shall automatically be deemed terminated as of the date of such consolidation, merger or sale.
In the case of any merger or consolidation with, or transfer of assets or liabilities to, any other plan, each participant under this plan shall (if the plan then terminates) receive a benefit immediately after the merger, consolidation or transfer which is equal to or greater than the benefit he would have been entitled to receive immediately before the merger, consolidation or transfer (if the plan had then terminated).
8.5. Dissolution or liquidation of employer. In the event that the employer is legally dissolved or liquidated by any procedure other than a consolidation, merger or sale, this plan shall terminate as of the effective date of such dissolution or liquidation.
8.6. Covenant to perform further acts. All parties to, or claiming any interest under, this agreement, agree to perform any and all acts and to execute any and all documents and papers which are necessary or desirable for carrying out this plan and trust.
8.7. Construction of agreement. This agreement shall be construed according to the laws of the State of Missouri, and all provisions thereof shall be administered according to the laws of said state.
8.8. Gender and number. Wherever any words are used herein in the masculine gender they shall be construed as though they were also used in the feminine gender in all cases where they would so apply, and wherever any words are used herein in the singular form they shall be construed as though they were also used in the plural form in all cases where they would so apply.
8.9. Limitation of liability; legal actions; and payment of expense. It is expressly understood and agreed by each employee who becomes a participant hereunder that except for violation of any applicable provision of law, willful neglect, breach of fiduciary duties or fraud, neither the employer, the administrator nor the trustee shall be in any way subject to any suit or litigation, or to any legal liability, for any cause or reason or thing whatsoever, in connection with this plan or its operation; and each such employee hereby releases the employer, the administrator and the trustee and their respective officers, agents and servants from any and all liability or obligation to the extent permissible by law.
In any action or proceeding involving the trust fund, or any property constituting part or all thereof, or the administration thereof, the employer, the administrator and the trustee shall be the only necessary parties; and no employees or former employees of the employer or their beneficiaries or any other person having or claiming to have an interest in the trust fund or under the plan shall be entitled to any notice of process.
Any final judgment which is not appealed or appealable that may be entered in any such action or proceeding shall be binding and conclusive on the parties hereto, the administrator, and all persons having or claiming to have an interest in the trust fund or under the plan.
8.10. Partial invalidity not to affect remaining provisions. In case any provisions of this agreement shall be held illegal or invalid for any reason, said illegality or invalidity shall not affect the remaining parts; but this agreement shall be construed and enforced as if the illegal or invalid provisions had never been inserted.
IN WITNESS WHEREOF, the employer has caused this first amendment to the City of Ballwin policemen pension trust to be executed by its duly appointed officers and its corporate seal to be hereunto affixed the day and year first above written.
(Code 1973, § 19-185; Ord. No. 12-22, § 1, 4-23-12)
Editor's note
The original plan set out in the above section was submitted to and approved by voters at a municipal election held April 1, 1969. The plan has also been approved by the Internal Revenue Service as a qualified plan under the provisions of the Internal Revenue Code of 1954.