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Home My WebLink About09/19/2005 STUDY SESSION AGENDA CITY COUNCIL MEETING CITY OF WHEAT RIDGE, COLORADO RECREATION CENTER 4005 Kipling Street CARNATION ROOM September 19,2005 6:30 p.m. APPROVAL OF MINUTES - August 1,2005 APPROVAL OF AGENDA Item 1 Staff Reports Item 2. Neighborhood Revitalization Strategy Item 3 Police Pension Plan !.)I'd \ (I f] - .{,l.)Cr1l, City of Wheat Ridge City Manager's Office Memorandum FROM. Mayor and CIty Council Randy Y oung, ~ager TO: DATE. September 14, 2005 SUBJECT: Meeting with Pam Hutton, Colorado Department of Transportation Pam Hutton, Colorado Department of Transportation, Director, Region VI was scheduled to meet with the Wheat RIdge CIty Council on Monday, September 19th On Tuesday afternoon, September 13th, I receIved a call from Pam Hutton's assistant indicatmg that due to scheduling conflicts, Pam would be unable to attend the meeting on September 19th. I WIll be workmg with Pam to schedule a future meetmg with City CounCIl. Please contact me If you have any questIOns or need additional information. ~umH[IJ}JJJm CITY OF WHEAT RIDGE, COLORADO Municipal Building 7500 W. 29th Avenue fA)L~ fJdJf~rltJ. ;-.1/0' y~, ,~ 'jr' Ij', U AUQust 1, 2005 Mayor Cerveny called the meeting to order at 6.28 p m. City Council members present: Karen Berry, Jerry DiTullio, Wanda Sang, Dean Gokey, Karen Adams, Mike Stites, Larry Schulz, Lena Rotola, Also present: Randy Young, City Manager; Patrick Goff, Deputy City Manager; City Clerk Pam Anderson, City Attorney Gerald Dahl, Director of Public Works, Tim Paranto, Director of Parks and Recreation, Joyce Manwaring, staff, APPROVAL OF THE MINUTES OF June 9,2005 and June 13, 2005 as printed. APPROVAL OF AGENDA Motion by Mrs Rotola to amend the agenda to include Item 1 a. Staff Reports and move Item 1 to Item 1b, seconded by Mrs Sang; carried 8-0 Item 1 a. Staff Reports City Manager Randy Young distributed a memorandum regarding residential and recycling dumpsters A discussion followed regarding policy options for dumpster regulations There was no direction given to move forward on amending the current ordinance Item 1b. Acquisition of Northwest Lakewood Sanitation Property Joyce Manwaring, Director of Parks and Recreation, introduced the item She updated City Council regarding on-going negotiations for acquisition of the Northwest Sanitation District Property The issues still to be resolved include reclamation costs for the property, indemnity issues for future conditions, and negotiation of shared costs with NWLSD for demolition of the buildings. Discussion followed Direction was given to wait for the results of the Phase II Environmental Assessment and proceed with negotiations on reclamation and demolition costs. Item 2. An Ordinance amending Chapter 16 ofthe Wheat Ridge Code of Laws to add a new Section 16-68, entitled Removal of Snow and Ice from Sidewalks City Attorney Gerald Dahl introduced the item. He briefed City Council on the proposed ordinance to remedy legal liability and insurance issues regarding the removal of snow and ice from sidewalks. He stated that the Citys insurance carrier, CIRSA, was recommending the ordinance, but not requiring the change The issues that were CITY COUNCIL STUDY SESSION MINUTES: August 1, 2005 2 discussed included how the ordinance would be enforced No direction was given to move forward with the ordinance Item 3. Election A) Draft Resolution of Support for Referenda C & D City Clerk Pam Anderson introduced the topic and distributed a draft resolution and other materials to Council Discussion followed and direction was given to Ms Anderson to add language similar to "Whereas, we ask the voters to consider both sides of the issue .. Ms. Anderson stated she would email a draft of the proposed addition to City Council for comment. B) Charter Amendment Concerning Alternate Methods of Publication City Attorney Gerald Dahl introduced the item and discussed the proposed ordinance amending the Charter and Code of Laws regarding broadening language to adapt to market, technological, and economic changes in publications Consensus was reached and direction was given to move forward with the item to a regular City Council meeting Item 4. Office of the Mayor and City Council A) Legislative Budget City Clerk Pam Anderson introduced the item and asked for input regarding the Legislative Budget regarding lobbying program and funding for the Transit Alliance Discussion followed, and further discussion will continue at the September Budget Retreat. B) Board and Commission Reception Ms Anderson introduced the topic and discussed three options for the annual appreciation reception and joint dinner meetings Discussion followed on the options and direction was given to proceed with a budget supplement to expand the reception to a dinner in the approximate amount of $3,000.00. C) Carnation Festival Ms. Anderson updated the Council on Carnation Festival Parade preparations Meeting adjourned at 8 46 P m APPROVED BY CITY COUNCIL ON BY A VOTE OF to Lena Rotola, Council President ~~~@ SMr &>;~'lA-- Q/IQ!05" JJ0(M I. DRAFT RESOLUTION NO. Series of 2005 TITLE: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WHEAT RIDGE CONCURRING WITH THE PHASING AND FUNDING OF THE I-70/32ND AVENUE INTERCHANGE SYSTEM LEVEL FEASIBILITY STUDY WHEREAS, The Colorado Department of Transportation (CDOT) together with Jeffcrson County recognize the need for Improvements in the operation of existing transportation systems m the 1-70, State Highway 58 and West 32nd Avcnue area; and WHEREAS, The Colorado Department of Transportation and Jefferson County together will commit up to $70 million for transportation system improvements to this area; and WHEREAS, Transportation system Improvements may include a portion of the 1-70/ SH58 intcrchange Improvements as described in thc Finding of No Slgmficant Impact (FONS1) for this interchange, as well as improvements at the I_70/32nd Avenue interchangc as determined by the outcomc of the metropolitan planning process for this general area; and WHEREAS, The final deciSIOn for expenditure of funds will residc Within the Department of Transportation and Jefferson County; and WHEREAS, The Colorado Department of TransportatIon will continue Its current work in completing final deSIgn for two additional ramps, missing dIrectional movements, at the 1-70/ SH58 interchangc; and WHEREAS, The City of Wheat Ridge will be responsible for the remaining transportation system improvcments as determined by the contmumg NatIonal Environmental Protection Act (NEPA) process; and WHEREAS, The City of Wheat Rldgc will recclve monetary assistance from Cabela's and a future Metro District for Improvcments; and WHEREAS, Transportation systcm improvements will be constructed over time and that not all Improvements are intended to be constructed early in thc project. Alternative packages developed in this study are designed to accommodate year 2030 traffic proJections including traffic generated by this development; therefore, not every component is necessary in the near term, howcver, it is anticipated that transportatIOn improvements will be constructed commcnsuratc with additional traffic gcnerated by this development. DRAFT DRAFT NOW THEREFORE BE IT RESOLVED THAT the City of Wheat Ridge, at the request of the Colorado Department of Transportation and as part of the 1601 process approve this Resolution, Its components and defined responsibilities and acknowledge that final funding and phasing plans will be better-defined withm the future Inter-Governmental Agreement (IGA) and subsequent National Environmental Protection Act (NEP A) documentation. DONE AND RESOLVED THIS _ day of ,2005. Gretchen Cerveny, Mayor ATTEST: Pamela Y. Anderson, City Clerk DRAFT ~ Economic Development 'Wfieat 'Riage, Co(orado STUDY SESSION Item ;I.. September 19, 2005 TO' Mayor and City Council THROUGH. G. Randy Young, CIty Manager FROM. Barbara Delgadillo, Assistant to the City Manager DATE. September 13,2005 SUBJECT: Transitioning Roles for City Council and Staff Nominating Committee Appointments The consultant team will be dIscussing the folloWlllg three subjects with the City CouncIl during your September 19 Study SessIOn meetlllg: 1. Transitionine: Roles for City Council and Staff Formation of Wheat Ridge 2020 (WR2020) is picking up momentum and movlllg llltO the next phase' development of the nominatlllg committee. This event signals the beglllning of the llldependent nature ofWR 2020. The consultants will dIscuss how the role of the CIty WIll begin to change as leadershIp IS developed and WR2020 is formed. Attached is a matnx depictlllg the roles and responsibilities of the City and WR2020 Phase I and Phase 2 relate to the formatIOn of WR2020 We are currently operating within Phase 1. 2. The Nominatine: Committee: The consultants will provide an update on the Nominatlllg Committee and outline the next steps to be taken in formlllg WR2020. The Nomlllating Committee will play one of the most crItical roles m creating WR2020 and will have the followmg responsibIlities: ., Identify a pool of people who would comprise the mitlal membershIp of WR2020 To do thIS, the Nominating Committee will revIew names of people who have expressed an lllterest in partlclpatlllg in the revItalization of Wheat Ridge, as well as talk with others who have the needed skills or experience needed to launch a successful organization. ., Attend a workshop where the Neighborhood RevitalIzation Strategy will be explained in more detail, along WIth the proactIve role WR2020 will play to assure that Wheat Ridge will soon be among the top Denver area communIties to live, work and visit. Nominating committee members will be attending one of two workshops scheduled for September 20 One IS scheduled from 8-9:30 am and the second from 4 - 5:30 pm. The workshops will be presented by the consultant team and will be held at the Recreation Center Potential nominatlllg committee members have been apprised of the workshop date. ;,. Talk with 15 to 20 people each, who have been screened for their level of lllterest. representatIOn of different mterests III Wheat Ridge (e.g. neighborhoods, businesses, CIVIC groups, financmg, etc.) and invIte them to apply to be a member "' PartIcipate in a process to select the 100 strongest candIdates to form the initIal membership list. );> Anticipate about 30 hours of volunteer work from mid-September through mid-October 3. NominatiD!~ Committee Update/Selection of Council Representatives to the Nominating Committee On August 15 the City CounCIl appomted Jerry DITullio and Wanda Sang to the WR2020 Task Force. The Task Force was responsible for selectmg 10 members of the community for the Nommatmg Committee. The Task Force exceeded its expectations by Identifymg 12 members of the community to serve on the nommating commIttee. The sIze of the Nominatmg CommIttee will not impact its effectiveness. The nominating committee task force worked from a list of approximately 200 possible candIdates. The matrix below identifies different areas of interest/expertise that will be Important to have on the Nommating Committee. This was used by the task force to narrow the list to 24 potential candidates: Council member Council member Neighborhood Representative NeIghborhood Developer Non-profit Representative Large employer Local busmess CIvic group Foundations Regional lender Real estate: Residential Commercial From the ltst of24 candidates, 16 were contacted and 12 agreed to serve on the Nominatmg Committee. The task force was successful in identifymg at least one Nominatmg Committee member within each of the matnx areas. All 12 members are strong candidates who understand what is bemg asked of them as well as the commitment of time. The Task Force recommendations for the Nommating CommIttee membership are as follows. Council member: Council member: Neighborhood Representative: iKim Calommo Neighborhood Developer: Non-profit: Representative: Karl Koch Alan Femstein, Jefferson Jim Payne, WR Fire County Housing Authonty Chief Large employer: Local business: Civic group: Carol Salzmann, Pam Goff Brian DeLaet, ABA Exempla-Lutheran P & G ConstructIOn Tom Rtpp, Enterpnse WR Foundations: Regional lender: Real estate: Lara Jabowski Denise Waddell ChrIS Shanley, Residential Mile High Fund President-First Bank Wheat Ridge Kittie Hook, VP Fuller & Company - CommercIal CIty Council is bemg asked to select two (2) Council representatIves for the nominating committee. SelectIOn of the two positIOns will follow the outline below: ';- Council members interested in particIpating on the Nominatmg Committee will announce their interest and explain their reasons for wanting to partiCipate. "' Council will determine whether or not voting will occur by show of hands or by ballot. Please call me at 303-235-2806 if you have any questIOns. /bd Attachment: 1 Draft Roles Matrix Inter-relationships DRAFT -- Revitalization Strategy Economic Development DRAFT Wheat Ridge Neighborhood Revitalization Strategy DRAFT - Transition of Roles Community Development . Land Use Planning . Code Enforcement Economic Development . Retain Existing Businesses . Identify new opportunities WR2020 . Facilitate Partnership . Leverage Resources . Neighborhood Reinvestment Phase 1 - Establishing Wheat Ridge 2020 Phase 2 Wheat Ridae 2020 In Action Wheat Ridge City Council Promote Revitalization Strateav Promote Revitalization Strateov In-out to sub-area olannino Aoorove Sub-Area Plans Define desired outcomes Allocate resources to achieve outcomes Promote WR2020 Invests in WR2020 Advised of actions/plans WR2020 Advised of activities undertaken to is undertaking to achieve overall community start WR2020 ooals within its ourview Particioates on Nominatinq Committee Particioates in Membershio of Wheat Ridoe 2020 Participates as part of Hirino Committee Assists with presentation of materials (budgets, work pia I Manager's Office Administers Consulting Contract Council Action -- Provides direction to Council infonmation Provides biweeklv uodates to Citv Council Liaison between Council and WR2020 Admin Particioates as Dart of hirino committee Membershio in Wheat Ridoe 2020 Establishes ordinances/codes that Planning and Development Oversees sub-area plannino process ensure sub-area plans can be implemented Reviews projects for compliance with desired outcomes/ordinances Monitors codes/ordinances so desired Develooment is encouraoed Economic Development Office Infonms sub-area olannina process Suooorts establishment of WR2020 Informed of WR2020 olans and activities Manages infonmation about fonmation of WR2020 Works in partnership with WR2020 on economic develooment related oroiects Administer incentive and develooment oroorams Administer incentive and develonment nroorams promoted by WRED oromoted bv WRED WR2020 Oroanizational Development Adopts business and work olan RecrUITS membershio Leveraoes and develoos resources Trains and engages membership to lead Seeks proiects that fulfill revitalization strateoies and infiuence orqanization Identifies high leverage/easily accomplished Engages community in business and neighborhood activITies for short tenm imorovement activities Identifies lonoer tenm qoals/strateoies Works toward self-sufficiencv Recruits staff I Establishes working committees ItlMo, 2 NgS Study Session Item 3. September 19, 2005 WHEAT RIDGE POLICE DEPARTMENT MEMORANDUM FROM: Mayor Gretchen Cerveny and City Council Randy Young,~nager Joe Cassa, Police Pension Board Chairmanj t;t:.-- September 9, 2005 TO: VIA: DATE: SUBJECT: The City of Wheat Ridge Money Purchase Pension Plan for Designated Police Department Employees BACKGROUND The sworn personnel of the police department participate in The City of Wheat Ridge Money Purchase Pension Plan for Designated Police Department Employees The plan was originally established effective as of October 1, 1981. The Plan is a money purchase pension plan intended to be a qualified governmental plan under the Internal Revenue Service Code of 1986. The Plan is governed by a six member board consisting of the following individuals: 1. Mayor' Gretchen Cerveny. 2 City Clerk: Pam Anderson 3. City Treasurer: Mary Cavarra. 4 Chief of Police: Daniel Brennan. 5 Pension Plan Participant: Sergeant Fred Bright. 6. Pension Plan Participant: Commander Joe Cassa (Board Chairman). STATEMENT OF PROBLEM It was determined in 2004 that this pension plan had not been amended in a timely manner as required under the Tax Reform Act of 1986, and subsequent Federal tax acts. The pension plan did not timely or properly apply for or receive a determination letter from the Internal Revenue Service as required by these tax acts. The police pension board relied on prior legal counsel to prepare all required amendments to the Plan to prevent a Plan Document failure. Prior legal counsel to the police pension board failed to properly and timely amend the Plan and receive required favorable determination letters from the Internal Revenue Service on behalf of the Plan. There is a specific process which must be followed to bring the Plan into compliance with the IRS. The process is summarized as follows: . Pension Board review of current pension plan. . Pension Board direction to plan attorney to restate the plan . Preparation of necessary documents to bring the Plan into compliance . Education of plan participants. . Plan membership election to approve Plan changes. . City Council approval of restated Plan. . City Council approval or required City Ordinance Changes . Submittal to the Internal Revenue Service. There are currently sixty-three (63) active pension plan participants. The Plan requires at least sixty-five percent (65%) of plan participants cast ballots in the election. The election was held beginning on September 1, 2005, through and including September 8, 2005. The election process was supervised and conducted by the City Clerk's Office There were 63 ballots distributed. The official results of the election as counted and certified by Deputy City Clerk Christa Jones are as follows: . 62 Ballots approve the amendment and restatement of the Plan as set forth in the Restated Plan. . 0 Ballots disapprove. . 1 Ballot undervote. (There was one member who was out of town on vacation and was unable to vote). Pension plan participants were surveyed regarding the changes made to the Plan other than those required by state statute or federal tax code changes. Of the sixty-two (62) participants provided a survey, there were forty-eight (48) responses. The results of the survey showed participant support for these changes. The restated plan before the City Council provides for the following changes. . Required Colorado State Statute and Federal tax code changes. . The Plan will change the definition of disability to conform to State { FPPA definitions. . The new Plan documents will allow the Board to accept roll-over monies and allow the creation of roll-over accounts. . The participant's mandatory contribution will change from an after-tax to pre- tax contribution. . Voluntary contributions will be discontinued as of December 31,2005. . The vesting schedule will change to seven (7) years, compared to the current vesting schedule of ten (10) years. The seven year vesting schedule was selected because it is one of the "model" schedules that the private sector is required to use. The board also considered information on turnover among plan participants, as well as comments made in the organizational assessment. . An additional sworn officer will be added to the Pension Board. The restated plan is attached to this report. The restated plan will require the following city ordinance changes: . Section 19-51. Establishment . Section 19-52. Operation. . Section 19-53. Contributions - City. . Section 19-54. Contributions - Officers. The proposed ordinance changes are attached to this report. ALTERNATIVES There are two alternatives available to the City Council The first alternative is not to approve the restated pension plan. The result of failing to timely make these required tax amendments to the Plan are: . The tax disqualification of the Plan under Code Section 401 (a); and . The loss of the tax-exempt status of the Plan's Trust under Code Section 501 (a). The tax consequences of such disqualification of the Plan and Trust are extremely harsh, and the loss of the Plan and Trust's tax qualified status affects all Participants Some of these consequences include: . The loss of the tax deferred treatment of the employer and the mandatory employee contributions made to the Plan for all Participants and the resulting current and retroactive inclusion in all of the Participants' income for these contributions; . The current and retroactive taxation to the Participants of the values of their vested Plan accounts; and . The current and retroactive taxation of the income earned by the Plan's Trust. The second alternative is to approve the restated plan, and the proposed city ordinance changes. Upon approval, the restated plan will be submitted to the Internal Revenue Service for review and approval (the issuance of a determination letter). FINANCIAL IMPACT The IRS has adopted its Employee Plans Compliance Resolution System ("EPCRS") to allow Code Section 401 (a) retirement plans, like the Plan, to reinstate their tax qualified status, and to avoid the results of tax disqualification discussed above. Under EPCRS, the Plan will be paying the following fees: . $2500 to the IRS to process the correction request which is based on the Plan's number of participants. . $700 user fee for the IRS to issue its determination letter. These fees will be paid for through the pension plan fees account There is no other financial impact upon the Plan or the City. RECOMMENDATION It is recommended that the City Council approve a resolution to adopt the restated police pension plan. Upon approval, the restated plan will become effective on January 1,2006. The resolution will be presented to City Council on October 10, 2006 A copy of the proposed resolution is attached to this report. It is also recommended that the City Council approve the proposed City Ordinance changes. The first reading of the Ordinance Changes will be presented to the City Council on September 26,2005. The second reading will be scheduled for October 10, 2006. A copy of the proposed City Ordinance changes are attached to this report. McNALLY AND BOWERS, P.C. ATTORNEYS AT LAW JOHN F. MCNALLY jmcnall)'@mcnall)"bowen 1.111ll ONE WALDEN BUILOlNG 4790 TABLE MESA DRIVE, SUITE 100 BOULDER, CO 80305 TELEPHONE (303)443.5073 FACSIMILE (303)443.5479 September 8, 2005 Commander Joseph E. Cassa Wheat Ridge Police Department 7500 W 29th Ave. Wheat Ridge, CO 80033 via email. jcassa@cJ.wheatndge.co us RE: FINAL COPIES OF THE CITY OF WHEAT RIDGE MONEY PURCHASE PENSION PLAN FOR DESIGNATED POLICE DEPARTMENT EMPLOYEES AND AMENDMENTS (the "Plan") Dear Joe: Pursuant to our dIscussions, please find enclosed the following FINAL drafts of 1. THE CITY OF WHEAT RIDGE MONEY PURCHASE PENSION PLAN FOR DESIGNATED POLICE DEPARTMENT EMPLOYEES ["GUST Restated Plan"), with TITLE PAGE and TABLE OF CONTENTS, 2. THE FIRST AMENDMENT TO THE CITY OF WHEAT RIDGE MONEY PURCHASE PENSION PLAN FOR DESIGNATED POLICE DEPARTMENT EMPLOYEES ["EGTRRA Amendment"], 3. THE SECOND AMENDMENT TO THE CITY OF WHEAT RIDGE MONEY PURCHASE PENSION PLAN FOR DESIGNATED POLICE DEPARTMENT EMPLOYEES ["IRC Section 401 (a)(9) MinImum Distribution Amendment"], and 4. THE THIRD AMENDMENT TO THE CITY OF WHEAT RIDGE MONEY PURCHASE PENSION PLAN FOR DESIGNATED POLICE DEPARTMENT EMPLOYEES ["IRC Section 40 1 (a)(31) Amendment"] Commander Joseph E. Cassa September 8, 2005 Page 2 of2 I belIeve these documents contain all of the reVISIOns and/or final proVIsions agreed to by the Pension Board, and which were approved by at least 65% of the Plan PartICipants. Please contact me if you or the other Board members have any questions, etc. I look forward to meeting with the City Council at its Study SeSSIOn, on Monday, September 19, 2005 at 6'45 P.M. at the Wheat Ridge RecreatIOn Center at 4005 KIplIng. Sincerely yours, McNally and Bowers, P.C. BY' John F. McNally, Esq. Enclosures THE CITY OF WHEAT RIDGE MONEY PURCHASE PENSION PLAN FOR DESIGNATED POLICE DEPARTMENT EMPLOYEES ["GUST Restated Plan"] TABLE OF CONTENTS ARTICLE I DEFINITIONS 1.01 "Plan" ............................................................................... ......................................................... 3 1 02 "Employer" ...................................................................................................................... ...... 3 l.03 "Trustees" ................................................................................................................................. ... 3 l.04 "Plan Administrator" ....................................................................... ......................................... 3 l. 05 "Board" ................... ............................ ........................................................................................ 3 1.06 "Employee" ................... ........................................................................... ....... ... .... ... .... ... ... ... ... 3 l.07 "PartIcIPant" .............................................................................................................. ......... ........3 1 08 "BeneficIary" ............................................................................................................................... 3 l.09 "CompensatIon" .................................................. .............................. ............... ... ... ... ........... ...... 3 1 1 0 "Account" ................................... ..... ............................................................................................. 4 I.ll "Accrued Benefit" ........................................................................................................................ 4 I 12 "Nonforfeitable" ........................................................................ ........... ... .... ....... .... ....... ............ 4 1 l3 "Plan Year" ...................................................................................................................................4 l.l4 "Limitation Year" ......................................................................................................................... 4 1.15 "Effective Date" ............................................................................................................. .............4 l.l6 "Accounting Date" ..................................................................................................................... 5 1 17 "Trust" .......................................................................................... ............... .... ....... ........ ... ... ........ 5 l.l8 "Trust Fund" ............................................................................................. ...................................5 l.l9 "Nontransferable Annuity" .......................................................................................................... 5 1.20 "Act" ...................................................... ......... .............................................................................. 5 1.2l "Code" ........................................................................... ................. ... ....................... ....... ............ 5 1.22 "Service" ............................................................................................................................... ........ 5 l.23 "Hour of Service" .................................................. ................................................................. ..... 5 1.24 "Authonzed Leave of Absence" ................................................................... .............................. 6 1.25 "Former Participant" .................................. .... .............................................................................. 6 l.26 "FPP A" .............................................. ................................ ....... ....................................................6 1.27 "Prior Plan".......................................... ......................................................................................... 7 1.28 "Trust Agreement" ................................... ................................. .... .... ....... .... .... ............................ 7 1.29 "Forfeiture" ................................................................................................................................... 7 l.30 "CRS" .................................................................. .... ........................................................ ............. 7 lJI "Highly Compensated Employee" ............................................................................................... 7 1.32 "Employer Contributions"............................................................................................................ 8 l.33 "Employer Contributions Account" ......................................................................... ................... 8 l.34 "Particlvant Mandatory Contributions" .......................................................................................8 l.35 "Participant Mandatory ContributIOns Account" ........................................................................ 8 l.36 "PartiCIPant V oluntarv Contributions" ......................................................................................... 8 l.37 "PartiCipant V oluntarv Contributions Account" ..........................................................................8 l.38 "Participant Rollover Contributions" ........................................................................................... 8 IJ9 "Participant Rollover Contributions Account" ............................................................................ 8 lAO "Separation from Service" ...........................................................................................................8 i 1 4 1 "Elective ContributIOns" ...................................................................................... .......................8 1 42 "Related Group"/"Related Employers" ............................................................. ......................... 9 1.43 "Leased Employee" .................................................................. ...................... ................. ... 9 1 44 "Disability" ..................................................................................................................... .......... 9 l.45 "Nonnal Retirement Age" ...................................................................................................... 9 ARTICLE II ELIGIBILITY AND PARTICIPATION 2.0l ELIGIBILITY ................................................................................ .................. ........... ... ... 10 2.02 PARTICIPATION UPON RE-EMPLOYMENT .................................................................... 10 2.03 MANDATORY PARTICIPATION IN PLAN..................................... .............................. ....10 ARTICLE III EMPLOYER CONTRIBUTIONS AND FORFEITURES 3.0l EMPLOYER CONTRIBUTIONS ........................................................................................ Il 3.02 CONTRIBUTION ALLOCATION ......................................................................................... II 303 FORFEITURE ALLOCATION ............................................................................................... II 3.04 LIMITATIONS ON ALLOCATIONS TO PARTICIPANTS' ACCOUNTS .......................l2 3.05 DEFINITIONS - ARTICLE III.................................................................................................13 ARTICLE IV P ARTlCIP ANT CONTRIBUTIONS 4 0 1 P ARTICIP ANT MANDATORY CONTRIBUTIONS ............................................................ 17 402 PARTICIPANT VOLUNTARY CONTRIBUTIONS .................................. ..........................17 4.03 PARTICIPANT VOLUNTARY CONTRIBUTIONS - SPECIAL DISCRIMINATION TEST ....................................................................... ...............................18 4.04 PARTICIPANT ROLLOVER CONTRIBUTIONS................................................................ 22 405 PARTICIPANT CONTRIBUTION AND APPRECIATION OF EMPLOYER CONTRIBUTIONS ACCOUNT - FORFEITABlLITY ......... .......................22 4.06 P ARTICIP ANT VOLUNTARY AND ROLLOVER CONTRIBUTION WITHDRAW ALl DISTRIBUTION ........................................................................................ 22 407 PARTICIPANT CONTRIBUTION - ACCRUED BENEFIT .................................................23 ARTICLE V VESTING 5.01 GENERAL ................................................................................................................................. 24 502 PARTICIPANT DEATH. DISABILITY OR ATTAINMENT OF NORMAL RETIREMENT AGE.................................................................................................................24 5.03 VESTING SCHEDULE ............................................................................................................ 24 5.04 YEAR OF SERVICE - VESTING ............................................................................................24 5.05 FORFEITURE OCCURS ............................... ...........................................................................25 ii ARTICLE VI DISTRIBUTION 6.01 TIMING OF DISTRIBUTIONS ............................................................................................... 26 6.02 REQUIRED MINIMUM DISTRIBUTIONS .......................................................... ...... ..".26 6.03 NOTICE. ELECTION AND METHOD OF DISTRIBUTION ............................. ..............30 6.04 DISTRIBUTIONS UNDER DOMESTIC RELATIONS ORDERS......................... ...........32 6.05 DIRECT ROLLOVER.................................................................................. ......... ...... ...........33 ARTICLE VII EMPLOYER ADMINISTRATIVE PROVISIONS 70l INFORMATION TO BOARD............................................................................. ................... 35 702 INDEMNITY OF BOARD AND TRUSTEES ....................................................................... 35 ARTICLE VIII PARTICIPANT ADMINISTRATIVE PROVISIONS 8.01 BENEFICIARY DESIGNATION ......................................................................... .... ... ... .........36 8.02 NO BENEFICIARY DESIGNATION...................................................................... ............... 36 8.03 PERSONAL DATA TO BOARD................................................................... .........................36 8.04 ADDRESS FOR NOTIFICATION........................................................................... ...............36 8.05 ASSIGNMENT OR ALIENATION ......................................................................... ............... 37 8.06 NOTICE OF CHANGE IN TERMS ......................................................................... .............37 807 LITIGATION AGAINST THE TRUST .................................................................................. 37 8.08 INFORMATION AVAILABLE .............................................................................................. 37 8.09 APPEAL PROCEDURE FOR DENIAL OF BENEFITS ........................................................ 37 810 PARTICIPANT DIRECTION OF INVESTMENT .................................................................38 ARTICLE IX BOARD - DUTIES WITH RESPECT TO PARTICIPANT'S ACCOUNTS 9.0l MEMBERSHIP COMPENSATION. EXPENSES .................................................................. 40 9.02 TERM......................................................................................................................................... 4l 9.03 POWERS ................................................................................................................................... 42 9.04 GENERAL .................................................................................................................................42 905 FUNDING POLICY ..................................................................................................................43 906 MANNER OF ACTION................................ ...........................................................................43 9.07 AUTHORIZED REPRESENT A TNE...................................................................................... 43 9.08 INTERESTED MEMBER......................................................................................................... 43 9.09 INDIVIDUAL ACCOUNTS .....................................................................................................43 9.10 VALUE OF PARTICIPANT'S ACCRUED BENEFIT ...........................................................43 9.l1 ALLOCATION AND DISTRIBUTION OF NET INCOME. GAIN OR LOSS .................... 44 9 l2 INDIVIDUAL ST ATEMENT................................................................................................... 45 9.13 ACCOUNT CHARGED............................................................................................................ 45 iii 9.14 LOST PARTICIPANTS ........................................................................................................ 45 9.l5 PLAN CORRECTION .............................................................................................. ............ 46 ARTICLE X TRUSTEES, POWERS AND DUTIES 10.0 1 ACCEPTANCE ...................... ...................................................................... ...... ..... ... ........ ...... 48 10.02 RECEIPT OF CONTRIBUTIONS ......................................................................... .......48 10.03 INVESTMENT POWERS .................................................................. ............ ................. 48 l004 RECORDS AND STATEMENTS........................................................................... ..............5l 1005 FEES AND EXPENSES FROM FUND........................................................ ......................... 5\ lO.06 PARTIES TO LITIGATION........................................................................................... ..... 51 10.07 PROFESSIONAL AGENTS ..................................................................................................... 51 1008 DISTRIBUTION OF CASH OR PROPERTY ...................................................... ... ........ .... 51 lO.09 DISTRIBUTION DIRECTIONS ...................................................................... ........ ... .. 51 10 lO THIRD PARTY ...................................................................................................................... 51 lO II RESiGNATION....................................................................................................... ............ 52 lO.l2 REMOV AL........................................................................................................... .................. 52 1013 INTERIM DUTIES AND SUCCESSOR TRUSTEES ................................................. ..........52 1 0.l4 VALUATION OF TRUST ................................................................... ...... ....... .................52 10.15 LIMITATION ON LIABILITY - IF INVESTMENT MANAGER APPOINTED .............. ...................................................... ... .......... ....... ...... ... ... ........... .... ........ 52 lO 16 INVESTMENT IN GROUP TRUST FUND............................................................................ 52 10.17 MANNER OF ACTION..................................................................... ............... . ..............52 ARTICLE XI PROVISIONS RELATING TO INSURANCE AND INSURANCE COMPANY 1l 01 INSURANCE BENEFIT ........................................................................................................... 53 II 02 LIMITATION ON LIFE INSURANCE PROTECTION .........................................................53 11.03 DEFINITIONS ........................ ........................ ............ .................... ................. ... ................. .... 54 ll.04 DIVIDEND PLAN .................................................................................................................... 55 ll.05 INSURANCE COMPANY NOT A PARTY TO AGREEMENT .......................................... 55 11.06 INSURANCE COMPANY NOT RESPONSIBLE FOR TRUSTEES' ACTIONS ............... ........................................... ............................. ....... .... ................................55 ll.07 INSURANCE COMPANY RELIANCE ON TRUSTEES' SIGNATURE ............................. 55 11 08 ACQUITI ANCE ............................................................................................ .... .......................55 ll.09 DUTIES OF INSURANCE COMP ANY..................................................................................55 ARTICLE XII MISCELLANEOUS 12.01 EVIDENCE................................................................................................................................56 12.02 NO RESPONSIBILITY FOR EMPLOYER ACTION ............................................................ 56 12.03 FIDUCIARIES NOT INSURERS....................................................... ............. .........................56 iv 12.04 WAIVER OF NOTICE..............................................................................................................56 12.05 SUCCESSORS ........... ............................................................................................................... 56 12.06 WORD USAGE .........................................................................................................................56 l2.07 STATE LAW ................................................................................................................... ......... 56 12.08 EMPLOYMENT NOT GUARANTEED .............................................. ................................. 56 12.09 EXEMPTION FROM ACT AND STATUTORY CONSTRUCTION .............. .................57 12.10 QUALIFIED MILITARY SERVICE .......................................................................................57 ARTICLE XIII EXCLUSIVE BENEFIT, AMENDMENT, TERMINATION l3.0 1 EXCLUSIVE BENEFIT ....................................................................... ....................... ....... ... .... 58 13.02 AMENDMENT BY EMPLOYER............................................................................................ 58 1303 CONTINUANCE OF THE PLAN ............................................................................................ 59 13.04 FULL VESTING ON TERMINATION ............................................................. ..................... 59 13.05 MERGER ...................................... ................................................................ ........ ... ....... .. ........59 l3 06 TERMINATION ....................................................................................................................... 60 13.07 PLAN TO CONFORM TO CODE AND COLORADO LAWS ............................................. 60 l3.08 APPLICABILITY ......................................................................................... ...... ..................... 60 v Exhibit "A" FIRST AMENDMENT TO THE CITY OF WHEAT RIDGE MONEY PURCHASE PENSION PLAN FOR DESIGNATED POLICE DEPARTMENT EMPLOYEES ["EGTRRA Amendment") Exhibit "B" SECOND AMENDMENT TO THE CITY OF WHEAT RIDGE MONEY PURCHASE PENSION PLAN FOR DESIGNATED POLICE DEPARTMENT EMPLOYEES ["IRC Section 401(a)(9) Minimum Distribution Amendment") Exhibit "c" THIRD AMENDMENT TO THE CITY OF WHEAT RIDGE MONEY PURCHASE PENSION PLAN FOR DESIGNATED POLICE DEPARTMENT EMPLOYEES ["IRC Section 401(a)(31) Amendment"] vi THE CITY OF WHEAT RIDGE MONEY PURCHASE PENSION PLAN FOR DESIGNATED POLICE DEPARTMENT EMPLOYEES ("GUST Restated Plan"] CITY OF WHEAT RIDGE, a Colorado municipality, makes and enters mto thIs Plan and Trust Agreement as the Employer with the Trustees hereunder. RECITALS' CITY OF WHEAT RIDGE continues, within this Plan and Trust Agreement, a plan and trust agreement for the admmistratlOn and distribution of contributions made by the Employer and its elIgible Employees for the purpose of providing retirement benefits for its elIgible Employees. The origmal Plan was established effectIve as of October 1, 1981. The onginal Plan was subsequently amended, in restated form, effectIve generally as of January 1, 1987, and has been amended thereafter. This Plan and Trust Agreement IS an amended plan and trust agreement, m restated form, for the principal purpose of complying with the tax qualification requirements under the Internal Revenue Code of 1986, as amended by the Uruguay Round Agreements Act (GATT), the Uniformed Services Employment and Reemployment Rights Act of 1994, the Small Busmess Job ProtectIOn Act of 1996, the Taxpayer Relief Act of 1997, the IRS Restructunng and Reform Act of 1998 and the Commuruty Renewal Tax Relief Act of 2000 (such acts are generally referred to as "GUST"). Subsequent to GUST, the Internal Revenue Code of 1986 was further amended by the Economic Growth and Tax Relief ReconciliatIOn Act of 200l ("EGTRRA"), whIch required that this Plan and Trust Agreement be further amended m order for it to maintam Its tax qualIficatIon, which amendments are generally effective for the Plan's first Plan Year commencmg after December 3l, 2001. Therefore, the Employer and Trustees have amended this Plan and Trust Agreement by that certam FIRST AMENDMENT TO THE CITY OF WHEAT RIDGE MONEY PURCHASE PENSION PLAN FOR DESIGNATED POLICE DEPARTMENT EMPLOYEES ("EGTRRA Amendment"] for certain applicable provisions of EGTRRA and as good faith compliance with the reqUIrements of EGTRRA, whIch FIRST AMENDMENT is attached hereto as Exhibit "A." Subsequent to GUST and EGTRRA, final Treasury Regulations were issued regarding required mmimum distributions under revised Internal Revenue Code SectIon 40l(a)(9), and the Internal Revenue Service required that tax qualified plans, mcluding this Plan and Trust Agreement, adopt conforming amendments to their plans which incorporate the proviSIOns of these final Regulations. Therefore, the Employer and the Trustees have amended this Plan and Trust Agreement by that certain SECOND AMENDMENT TO THE CITY OF WHEAT RIDGE MONEY PURCHASE PENSION PLAN FOR DESIGNATED POLICE 1 DEPARTMENT EMPLOYEES ["IRC Section 401(a)(9) Minimum Distribution Amendment"] to comply with the final Treasury RegulatIons Issued under Code SectIon 40l(a)(9) relatIve to reqUIred mInimum distributIons, which SECOND AMENDMENT IS attached hereto as Exhibit "B." Subsequent to GUST, EGTRRA, and the final Treasury RegulatIons under Intemal Revenue Code Section 40l(a)(9), the Internal Revenue Service required that tax qualIfied plans, IncludIng this Plan and Trust Agreement, adopt conforming amendments to theIr plans whIch Incorporate the proviSIOns of Internal Revenue Code Section 40l(a)(3l), regardIng mandatory tax qualIfied plan distributIons made on or after March 28, 2005 (or such later date applIcable to govemmental plans) m excess of $l,OOO 00 being reqUIred to be dIstributed only to a rollover IRA for the dIstributee. Therefore, the Employer and the Trustees have amended thIS Plan and Trust Agreement by that certain THIRD AMENDMENT TO THE CITY OF WHEAT RIDGE MONEY PURCHASE PENSION PLAN FOR DESIGNATED POLICE DEPARTMENT EMPLOYEES ["IRC Section 401(a)(31) Amendment"] to comply with Code SectIOn 40l(a)(31) relative to mandatory tax qualified plan distributions made on or after March 28, 2005 (or such later date apphcable to govemmental plans) In excess of $l ,000.00 bemg reqUired to be dIstributed only to a rollover IRA for the distributee, which THIRD AMENDMENT IS attached hereto as Exhibit "C." The proVISions of thiS Plan and Trust Agreement, as amended by saId FIRST AMENDMENT, Said SECOND AMENDMENT, and/or saId THIRD AMENDMENT, shall apply to an Employee whose employment with the Employer terminates on or after the restated Effective Date of the Plan, or as of another applIcable effectIve date as speCifically provided for m thIS Plan and Trust Agreement, or as of the effective date of said FIRST AMENDMENT, of Said SECOND AMENDMENT and/or of said THIRD AMENDMENT, as appropnate under the cIrcumstances based upon the date such Employee's employment With the Employer termmates. If an Employee's employment WIth the Employer terminates pnor to the restated Effective Date of the Plan, or as of another pnor applIcable effective date as speCifically proVided for m this Plan and Trust Agreement, that Employee shall be entItled to benefits under the Pnor Plan as the Prior Plan eXIsted on the date of the Employee's termInatIon of employment. NOW, THEREFORE, in consideratIon of their mutual covenants, the Employer and the Trustees agree as follows: 2 ARTICLE I DEFINITIONS 1.0 I "Plan" shall mean the retirement plan and trust agreement established and contmued by the Employer In the form of this Plan and Trust Agreement, and as amended by the FIRST AMENDMENT, by the SECOND AMENDMENT and by the THIRD AMENDMENT thereto (where applicable), which collectively shall be designated as the THE CITY OF WHEAT RIDGE MONEY PURCHASE PENSION PLAN FOR DESIGNATED POLICE DEPARTMENT EMPLOYEES 1 02 "Employer" shall mean the CITY OF WHEAT RIDGE. Any actIon to be taken or determInation to be made by the Employer shall be by action of the City Council of the City of Wheat Ridge except to the extent such authority IS delegated by the City Council. l.03 "Trustees" shall mean the person or persons who are named on the last page hereof and referred to as such thereat and who have executed tins Agreement as trustee; and any person or persons who become successor trustees pursuant to the terms of the Plan. The Trustees shall be the same persons who constitute the members of the Board, as defined m Section 1.05. l.04 "Plan Admlmstrator" shall mean the Board, as defined m Section l.05 l.05 "Board" shall mean the City of Wheat Ridge PolIce PensIOn Board as from tIme to tIme constItuted pursuant to the terms of ARTICLE IX hereof. 1 06 "Employee" shall mean any person who is a full-tIme paid swom polIce officer employed by the police department of the Employer, as determined by the Employer under the Employer's standard personnel polIcies and practices as may from time to time be m effect. Except as otherwise proVided herem to the contrary, the term "Employee" shall not mean nor mclude clencal or other personnel whose services for the Employer are auxilIary to actual police protection services. Leased Employees, as defined In Code SectIon 4l4(n) and m Section 1 43, shall be treated as Employees hereunder to the extent reqUIred by the Code. l.07 "ParticIPant" IS an Employee who is elIgible to be and becomes a PartiCIpant in accordance with the provisions of Section 2.0 l, or a person who is otherwise treated as a PartIcipant in accordance with the proVisions of Section 2.01. l.08 "Beneficiary" IS a person deSignated by a Participant who IS or may become entitled to a benefit under the Plan. A Beneficiary who becomes entitled to a benefit under the Plan shall remaIn a Beneficiary under the Plan until the Trustees have fully distributed his or her benefit to him or her. A BenefiCiary's right to (and the Plan Admimstrator's, the Board's or the Trustees' duty to provide to the Beneficiary) mformation or data concerning the Plan shall not arise until he or she first becomes entitled to receive a benefit under the Plan. 1 09 "Compensation" shall mean the total base salary paid by the Employer to a 3 Participant for servIces rendered to the Employer as an Employee, excluding bonuses, overtIme pay, severance pay, shift differentIals, longevity pay, other fonns of compensatIOn, insurance premIUms, pensions and retIrement benefits, receIVed for services perfonned as an Employee for the portIOn of the Plan Year during which the Employee was a Participant. However, the term "CompensatIOn" shall not be reduced by the Participant's mandatory contributions whIch are pIcked up by the Employer pursuant to ARTICLE IV, nor shall "CompensatIon" be reduced by any Elective ContributIons, as defined III SectIOn 1.41. Any reference III thiS Plan to CompensatIon IS a reference to the definitIon m thiS SectIOn I 09, unless the Plan reference specifies a modification to thts defimtIon. The Board will take Into account only Compensation actually paid during (or as permItted under the Code, paId for) the relevant period. A Compensation payment includes CompensatIOn by the Employer through another person under the common paymaster proVISIOns In Code Sections 3121 and 3306 For any Plan Year, the Board and the Trustees m allocatmg Employer contributions under ARTICLE III and Participant mandatory "picked up" contributions under SectIon 4 01 shall not take mto account more than $l50,000 (or such larger or smaller amount as the CommissIoner of Internal Revenue may prescribe) of any PartIcipant's Compensation. NotwithstandIng the foregomg, an Employee under a Code Section 40l(k) arrangement with the Employer, If apphcable, may make electIve deferrals with respect to CompensatIOn whIch exceeds the Plan Year CompensatIOn limitation, provided such deferrals otherwise satIsfy Code SectIon 402(g) and other applicable hmitatIOns. 1 10 "Account" shall mean the separate account(s) which the Board or the Trustees shall maintam for a PartIcIpant under the Plan. 1 II "Accrued Benefit" shall mean the amount standIng in a PartICipant's Employer Contributions Account, Participant Mandatory Contributions Account, Participant Voluntary ContributIOns Account and Participant Rollover Contributions Account as of any date. I.l2 "NonforfeItable" shall mean a PartiCipant's or Beneficiary's uncondItIOnal claim, legally enforceable agamst the Plan, to the Participant's Accrued Benefit. 1 13 "Plan Year" shall mean the fiscal year of the Plan, a twelve (12) consecutIve month period endmg every December 3l. l.l4 "LimitatIOn Year" shall mean the Plan Year. 1.15 "Effective Date" of this Plan as restated shall be effective for the Plan Years and LimitatIon Years beginnmg on or after January I, 1997, except as specifically proVIded to the contrary m this Plan, and except for: (1) Section 3.05(b), which is effectIve for Plan Years and Limitation Years beginning after December 31, 1997; and (2) Section 3.05(c), which IS effectIve for Plan Years and Limitation Years beginnmg after December 3l, 1994 4 1.16 "Accountmg Date" shall be the last day of the Plan Year, and may hereafter be referred to herem as the" Anniversary Date." 1.17 "Trust" shall mean the separate Trust created under the Plan. 1.18 "Trust Fund" shall mean all property of every kind held or acquIred by the Trustees under the Agreement. l.l9 "Nontransferable Annuity" means an annuity which by Its terms proVides that It may not be sold, assigned, discounted, pledged as collateral for a loan or secunty for the performance of an obligation or for any purpose to any person other than the insurance company. If the Trustees distribute an annuity contract, the contract must be a Nontransferable AnnUIty. l.20 "Act" means the Employee RetIrement Income Secunty Act of 1974, as amended, and may hereafter also be referred to as "ERISA". 1.2l "Code" means the Internal Revenue Code of 1986, as amended. 1.22 "Service" means any penod of time the Employee is in the employ of the Employer as an Employee. l.23 "Hour of Service" shall mean: (a) Each Hour of Service for which the Employer pays an Employee, or for which the Employee is entitled to payment, for the performance of dutIes as an Employee. The Board credits Hours of Service under this paragraph (a) to the Employee for the computatIOn period III which the Employee performs the duties, irrespective of when paid, (b) Each Hour of Service for back pay, irrespective of mitIgation of damages, to which the Employer has agreed or for WhICh the Employee has received an award. The Trustees shall credit Hours of Service under this paragraph (b) to the Employee for the computatIOn penod(s) to which the award or the agreement pertains rather than for the computatIOn penod III which the award, agreement or payment IS made; and (c) Each Hour of Service for which the Employer, either directly or indirectly, pays an Employee, or for which the Employee IS entitled to payment (irrespective of whether the employment relationship IS termmated), for reasons other than for the performance of dutIes during a computation period, such as Authorized Leave of Absence, vacation, holiday, Sick leave, inness, mcapaclty (including disability), layoff, JUry duty or military duty. Except as otherwise required by applicable law, the Board shall credit no more than five hundred one (501) Hours of Service under thiS paragraph (c) to an Employee on account of any single contmuous penod during which the Employee does not perform any duties (whether or not such period occurs during a single computatIOn period). An hour for which an Employee is directly or indirectly paid, or entitled to payment, on account of a period during which no dutIes are performed is not required to be credited to the Employee if such payment is made or due under a plan maintamed solely for the purpose of complymg with applicable workmen's compensation, or unemployment compensatIOn or disability 5 Insurance laws. Hours of Service are not reqUIred to be credited for a payment which solely reimburses an Employee for medical or medically related expenses mcurred by the Employee. The Board credits Hours of Service under thiS paragraph (c) In accordance with the rules of paragraphs (b) and (c) of Labor Reg. SectIon 2530.200b-2, which the Plan, by this reference, speCIfically Incorporates In full WIthin this paragraph (c). (d) Hour of Service shall also mclude any service which the Plan must credit for contributions and benefits in order to satIsfy the creditmg of service reqUIrements of Code SectIOn 4l4(u). The prOVISIOns of this SectIOn 1.23(d) shall apply begmnmg December 12, 1994 For purposes of tills Section 1.23, a payment shall be deemed to made by the Employer regardless of whether such payment is made by the Employer directly, or indirectly through, among others, a trust fund, or msurer, to whIch the Employer contributes or pays premiums and regardless of whether contributIons made or due to the trust fund, Insurer or other entIty are for the benefit of partIcular Employees or are on behalf of a group of Employees m the aggregate. The Board shall not credit an Hour of Service under more than one of the above paragraphs. For example, an Employee who receives a back pay award follOWIng a determmatlon that such Employee was patd at an unlawful rate for Hours of Service prevIOusly credited will not be entItled to additional credit for the same Hours of Service. Crediting of Hours of Service for back pay awarded or agreed to with respect to periods described in Section 1.23(c) shall be subject to the limitatIOns set forth in such Section 1.23(c). For example, no more than 501 Hours of Service are requIred to be credited for payments of back pay, to the extent that such back pay IS agreed to or awarded for a penod of tIme during which an Employee dId not or would not have performed dutIes. A computation penod for purposes of thiS Section l.23 is the Plan Year or Year of Service penod In whIch the Board is measuring an Employee's Hours of Service. The Employer shall credit every Employee With Hours of Service on the baSIS of the "actual" method. For purposes of the Plan, "actual" method means the determmation of Hours of Service from records of hours worked and hours for which the Employer makes payment or for which payment is due from the Employer. l.24 "Authonzed Leave of Absence" means any absence authonzed by the Employer under the Employer's standard personnel polIcies and practices as may from tIme to tIme be m effect. An absence due to military service described in CRS SectIon 28-3-60l, et seq. (or other applIcable law), includmg annual, extended and emergency military leave, shall be govemed by CRS SectIOn 28-3-60l, et seq. and shall be considered an Authonzed Leave of Absence hereunder, proVIded that the absence meets the requirements set forth in CRS Section 28-3-60l, et seq l.25 "Former PartiCIPant" means an mdividual who has ceased to be a PartiCipant because of the Participant's Separation from Service for any reason and who has an undistributed Account. 1.26 "FPP A" shall mean the Colorado Fire and PolIce PensIOn AssociatIOn establIshed pursuant to CRS, Title 31, Article 31. 6 1.27 "Pnor Plan" means the City Of Wheat Ridge Money Purchase PenSIOn Plan For Designated Police Department Employees m effect pnor to the restated EffectIve Date of the Plan, or as of another prior applIcable effective date as specifically proVided for m the Plan. 1.28 "Trust Agreement" means the agreement set forth herem between the Employer and the Trustees providmg for the admInistration of the Trust Fund, as the same may be amended from time to tIme, which forms a part of the Plan. l.29 "Forfeiture" means that portIOn of a Participant's Accrued Benefit which IS forfeited in accordance with SectIOns 5 05 or 9.14 l.30 "CRS" means Colorado Revised Statutes, as amended. l.3l "Highly Compensated Employee" means an Employee who (a) dunng the Plan Year or during the preceding Plan Year, if applIcable to the Plan, IS a more than 5% owner of the Employer (applymg the constructive ownership rules of Code SectIOn 3l8, and applying the principles of Code Section 318, for an umncorporated entity), or (b) during the precedmg Plan Year had Compensation m excess of $80,000 (as adjusted by the Commissioner of Internal Revenue for the relevant year) For purposes of this SectIon 1.3l, "Compensation" means Compensation as defined m SectIon 1.09, except any exclUSIOns from Compensation set forth in SectIOn 1.09 do not apply, and CompensatIOn specifically includes Elective ContributIOns, as defined m SectIOn 1 4l The Trustees must make the determmation of who is a Highly Compensated Employee, includmg the determmations of the number and identity of the top-patd 20% group, consIstent with Code SectIon 414(q) and regulations Issued thereunder The Employer may make a calendar year data electIon to determine the Highly Compensated Employees for the Plan Year, as prescribed by Treasury regulations or by other guidance published in the Internal Revenue Bulletm. A calendar year data election must apply to all plans of the Employer whIch reference the highly compensated employee definition in Code Section 414(q). For purposes of this Section 1.3l, if the current Plan Year IS the first year of the Plan, then the term "precedmg Plan Year" means the l2-consecutIve month penod Immediately precedmg the current Plan Year. Anythmg contamed in this Section 1.31 or any other proviSIOn of the Plan to the contrary notwithstanding, the proVisions of this Section 1.3l shall only apply to the Plan if so required under the Code, including, but not limited to Code SectIon 4l4(q). 7 1.32 "Emplover ContributIOns" means the amount contributed by the Employer under SectIon 3.01, excludmg Participant Mandatory ContributIons, Participant Voluntary Contributions, Participant Rollover Contributions, and Forfeitures. 1.33 "Emplover Contributions Account" means the account mamtamed by the Board m the name of a Participant to record the PartiCipant's interest m the Trust represented by such PartICipant's share of Employer Contributions, and the mcrease or decrease in the net worth of the Trust allocable thereto. l.34 "Participant Mandatory Contributions" means the contributIons made under SectIon 4.01 by a PartiCipant, excluding Employer ContributIons, Participant Voluntary ContributIOns, Participant Rollover Contributions, and Forfeitures. 1.35 "Participant Mandatory Contributions Account" means the account mamtamed by the Board in the name of a Participant to record such Participant's interest in the Trust represented by such Participant's Mandatory ContributIons, and the mcrease or decrease in the net worth of the Trust allocable thereto. 1.36 "PartIcipant Voluntary Contributions" means the voluntary contributions made under SectIOn 4 02 by a PartiCipant, excluding Employer ContributIons, PartiCIpant Mandatory ContributIOns, PartiCipant Rollover Contributions, and Forfeitures. 1.37 "PartiCIPant Voluntary Contributions Account" means the account mamtamed by the Board m the name of a PartiCipant to record such Participant's interest in the Trust represented by such PartiCipant's Voluntary Contributions (if any), and the mcrease or decrease m the net worth of the Trust allocable thereto. 1.38 "Participant Rollover ContributIOns" means the rollover contributIOns made under SectIon 4.04 by a PartiCipant, excluding Employer ContributIOns, PartiCipant Mandatory ContributIOns, Participant Voluntary Contributions, and Forfeitures. l.39 "PartiCIPant Rollover Contributions Account" means the account mamtamed by the Board m the name of a PartiCipant to record such PartiCipant's mterest m the Trust represented by such PartiCIpant's Participant Rollover Contributions (if any), and the Increase or decrease in the net worth of the Trust allocable thereto. lAO "SeparatIon from Service" means the Employee no longer has an employment relatIOnship with the Employer mamtaimng thiS Plan. 141 "ElectIve Contributions" shall mean amounts excludible from the Employee's gross income under Code Sections l25, 132(f)(4), 402(e)(3), 402(h)(2), 403(b), 408(P), or 457, and contributed by the Employer, at the Employee's electIOn, to a cafetena plan, a qualified transportation fringe benefit plan, a 40l(k) arrangement, a SARSEP, a tax-sheltered annUIty, a SIMPLE plan or a Code SectIOn 457 plan. Notwithstandmg the preceding sentence, amounts described in Code Section l32(f)(4) are not Elective Contributions until Plan Years beginnIng on or after January 1, 2001, unless the Trustees operationally have included such amounts effectIve 8 as of an earlIer Plan Year begmning no earlIer than January l, 1998 1.42 "Related Group"("Related Employers" A Related Group is a controlled group of corporations (as defined In Code SectIOn 4l4(b)), trades or busmesses (whether or not mcorporated) which are under common control (as defined in Code SectIon 414( c)) or an affilIated service group (as defined in Code SectIOn 4l4(m)) or an arrangement otherwise described in Code SectIOn 414(0). Each Employer/member of the Related Group is a Related Employer. The term "Employer" mcludes every Related Employer for purposes of creditIng Service and Hours of Service, determmmg Vesting Years of Service under ARTICLE V, applying the definitIOns of Employee, Highly Compensated Employee, Compensation and Leased Employee, determining Separation from Service, and for any other purpose requIred by the Code or by a Plan proviSIOn. However, an Employer may contribute to the Plan only by bemg a signatory to the Plan or to a PartIcipatIOn Agreement to the Plan. If a Related Employer executes a PartIcipatIon Agreement to the Plan, such Related Employer is a Partlclpatmg Employer. A Particlpatmg Employer is an Employer for all purposes of the Plan. Anything contained in this Section l.42 or any other proviSIOn of the Plan to the contrary notwithstanding, the provisions of thiS SectIon 1.42 shall only apply to the Plan If so reqUIred under the Code. 1 43 "Leased Employee" means an mdivldual (who otherwise IS not an Employee of the Employer) who, pursuant to an agreement between the Employer and any other person, has performed services for the Employer as an Employee (or for the Employer and any persons related to the Employer within the meamng of Code Section l44(a)(3)) on a substantIally full tIme baSIS for at least one year and who performs such services under pnmary direction or control of the Employer withm the meaning of Code Section 4l4(n)(2). Except as otherwise provided heremafter in thIS Section l.43, a Leased Employee IS an Employee for purposes of the Plan. If a Leased Employee is treated as an Employee by reason of thiS SectIOn 1 43 of the Plan, "CompensatIOn" includes CompensatIOn from the leasing orgamzatlOn which is attributable to services performed for the Employer. Anything contained in thIS Section 1 43 or any other proVIsion of the Plan to the contrary notwlthstandmg, the provisions of this SectIon 1.43 shall only apply to the Plan if so required under the Code. 1.44 "Disabilitv" hereunder shall mean when a PartiCIpant is found by FPP A to be eligible for disability benefits for total disability or permanent occupatIonal disabilIty as proVided and defined under and defined in CRS, Title 31, Article 31. l45 "Normal RetIrement Age" hereunder shall mean the date the Participant attains age fifty-five (55) years. 9 ARTICLE II ELIGIBILITY AND PARTICIPATION 2.01 ELIGIBILITY An Employee shall be elIgible to become a PartICIpant and shall begm participation in the Plan on the date he or she IS first credited with an Hour of ServIce as an Employee. However, any person who had met the elIgibilIty requirements for partICipatIOn under the terms of the Prior Plan and was a partiCipant in the Pnor Plan on the EffectIve Date shall become and/or remam a PartIcipant in the Plan on and after the EffectIve Date, provide he or she IS employed by the Employer on the Effective Date and continues to meet such elIgibilIty requirements for participation under the terms of the Pnor Plan or under the terms of thiS Plan. 2.02 PARTICIPATION UPON RE-EMPLOYMENT. If the Service of an Employee termmates and he or she IS re-employed as an Employee, such re-employed Employee will be elIgible to become a Participant and shall begm participatIOn m the Plan on the date he or she is re- employed by the Employer as an Employee and IS first credited with an Hour of Service as a re- employed Employee. 2.03 MANDATORY PARTICIPATION IN PLAN. Except as prOVided m the followmg sentence, all Employees who are eligible to participate in the Plan must partiCipate m the Plan as a condition of theIr employment as an Employee with the Employer, and no current PartICipant may elect to discontinue his or her partiCipatIOn in the Plan. The proVisions of this SectIOn 2.03 may not be apphcable to the polIce chief of the Employer, proVided that the applIcable proVISIOns of CRS are complIed With, and further proVided that if said chief participates m another retIrement plan sponsored by the Employer, such partiCipation m such other retirement plan does not detnmentally Impact the continued tax qualIfication of thiS Plan and Trust Agreement under the Code. 10 ARTICLE III EMPLOYER CONTRIBUTIONS AND FORFEITURES 3.01 EMPLOYER CONTRIBUTIONS (a) The Employer will contribute to the Trust on behalf of each Participant who is ehgible to share m Employer Contributions for that payroll penod an amount, which, together with any Forfeitures which are to be reallocated dunng such payroll penod under the provisIOns of SectIOn 3.03, equals ten percent (10%) of each such Participant's Compensation for such pay period. (b) The percentage contributIons of the Employer provided for m thiS SectIOn 3 0 I may be modified hereafter by the apphcable terms of any subsequent bmdmg agreement between the Employer and the Board, provided such terms make specific reference to such percentage contributIOn and provided any such amendment is approved m accordance WIth the proVisions of Plan Section l3.02. Any and all such amendments shall be affixed hereto, and the terms and proviSIOns of tills Plan and Trust Agreement relating to such percentage contributIons shall be deemed modified as of and in accordance with the terms of such binding agreement. ( c) Employer Contributions made to the Trust for any Plan Year shall be paid to the Trustees, such payments shall be made on a baSIS during the Plan Year concerned that coinCides With the Employer's then current payroll period for the PartiCipants, and pendmg allocatIOn under SectIOns 3 02 and 3.03, shall be invested by the Trustees. 3.02 CONTRIBUTION ALLOCATION. The Board shall allocate and credit to each Participant's Account each Employer ContributIon to thiS Trust upon the same basis as the Employer makes ItS contributIOns under SectIOn 3.0 l; that is, the Board shall credit each Participant's Account With that portIOn of the Employer's ContributIOn which is equal to the percentage, as set forth m the apphcable proVISIOn of Section 3.01, of the PartiCipant's CompensatIOn upon which the Employer based ItS Employer Contribution dunng such pay period. 3.03 FORFEITURE ALLOCATION The amount of a PartIcipant's Accrued Benefit forfeIted under the Plan IS a Participant Forfeiture. Subject only to any restoratIOn allocation reqUIred under Section 9.14, the Board will first apply Participant Forfeitures to pay the admimstratton and operational expenses of the Plan and Trust, and if any PartiCipant Forfeitures remain after paYIng such expenses, such remaining Participant Forfeitures shall be applIed, as directed by the Board, in accordance with SectIOn 3.02, to reduce the Employer Contributton for the Plan Year in which the Forfeiture occurs and any subsequent Plan Year if required. The Board will continue to hold the undistributed, non-vested portion of a termmated Participant's Accrued Benefit in his or her Account solely for his or her benefit until a Forfeiture occurs at the time speCified in SectIOn 5.05. A Participant will not share in the allocation of a Forfeiture of any portion of his or her Accrued Benefit. 11 3.04 LIMITATIONS ON ALLOCATIONS TO PARTICIPANTS' ACCOUNTS The amount of Annual AdditIOns wluch the Board may allocate under this Plan on a Participant's behalf for a LimitatIOn Year shall not exceed the MaxImum Pemussible Amount. If the amount the Employer othelWlse would contribute to a Participant's Account would cause the Annual AdditIOns for the LimitatIOn Year to exceed the Maximum Permissible Amount, the Employer Will reduce the amount of Its contributIOns so the Annual Additions for the LimitatIOn Year will equal the MaXimum Permissible Amount. (a) Estimation of CompensatIon. Pnor to the determmatlOn of a PartIcIpant's actual CompensatIon for a LimitatIOn Year, the Board may determme the MaXImum PermIssible Amount on the baSIS of a Participant's estimated annual CompensatIon for such Limitation Year The Board shall make thiS determmation on a reasonable and umform basis for all PartIcipants SImilarly situated. The Board shall reduce any Employer ContributIOns (after applymg any available ForfeIture allocation) based on estimated annual CompensatIon by any Excess Amount earned over from pnor LimitatIon Years. As soon as is admimstratively feasible after the end of the LimItatIon Year, the Board shall determine the MaXimum Permissible Amount for the LImitatIon Year on the basis of a PartiCipant's actual Compensation for the LimitatIon Year. (b) DispositIOn of Excess Amount. If, pursuant to Section 3.04(a), or because of the allocatton of Forfeitures, there is an Excess Amount WIth respect to a PartiCipant for a LimItation Year, the Board shall dispose of such Excess Amount as follows. (1) The Board shall first return any voluntary PartiCipant contributions (if any), and second mandatory PartiCipant contributIOns to such PartiCipant, plus any earnmgs and mmus any losses attributable thereto, to the extent that the return would reduce the Excess Amount. (2) If, after the apphcation of Section 3.04(b)(l), an Excess Amount still eXIsts, and the Plan covers such PartiCipant at the end of the Limitation Year, then the Board shall use the Excess Amount(s) to reduce future Employer Contributions (after applymg any available Forfeiture allocation) under the Plan for the next Limitation Year and for each succeeding LimitatIon Year, as is necessary, for such Participant. (3) If, after the applIcation of SectIon 3.04(b)(l), an Excess Amount still exists, and the Plan does not cover such Participant at the end of the LimitatIon Year, then the Board shall hold the Excess Amount unallocated m a suspense account. The Board shall apply the suspense account to reduce Employer Contributions (after applying any available Forfeiture allocation) for all remainmg Participants m the next Limitation Year, and in each succeedmg LImitatIon Year If necessary. (4) Except as proVided in Section 3 04(b)(l) above, the Board shall not distribute any Excess Amount(s) to PartiCipants or to former PartiCipants. (c) Defined Benefit Plan LimitatIon. (1) Limitation Years Beginning Before January I. 2000. If any Participant presently participates, or has ever participated, under a defined benefit plan mamtamed 12 '! by the Employer, then the sum of the defined benefit plan fraction and the defined contribution plan fractIOn for such Participant for any Limitation Year begmmng before January 1, 2000 must not exceed 10. To the extent necessary to satIsfy the lImitation under this SectIOn 3.04(c), the Employer will reduce Its contributIon or allocation on behalf of any such Participant to the defined contributIOn plan under which such PartiCipant participates and then, If necessary, such PartiCIpant's projected annual benefit under the defined benefit plan under which such Participant participates. (2) Limitation Years Begmning After December 31, 1999 The I 0 lImItation of SectIon 3 .04( c)( I) does not apply for any Limitation Year beglnnmg after December 3l, 1999. 3 05 DEFINITIONS - ARTICLE ill. For purposes of Article ill, the following terms shall mean. (a) "Annual AdditIOn" - The sum of the following amounts allocated on behalf of a PartiCipant for a Limitation Year: (i) all Employer Contributions; (ii) all Forfeitures; and (iii) all Employee contributions. Except to the extent provided In Treasury regulatIOns, Annual AdditIons include excess contributIons described In Code Section 401(k), excess aggregate contributions described in Code Section 40l(m) and excess deferrals described in Code SectIon 402(g), irrespective of whether the plan distributes or forfeits such excess amounts. Annual AdditIOns also shall Include Excess Amounts reapplIed to reduce Employer Contributions under SectIOn 3.04. Annual Additions also include amounts allocated after March 31, 1984, to an indIVidual medical account (as defined in Code SectIOn 415(1)(2)) mcluded as part of a defined benefit plan maintamed by the Employer. Furthermore, Annual AdditIons include contributIons paid or accrued after December 31, 1985, for taxable years ending after December 31, 1985, attributable to post- retirement medical benefits allocated to the separate account of a key employee (as defined in Code SectIon 419A(d)(3)) under a welfare benefit fund (as defined in Code Section 419(e)) mamtained by the Employer, but only for purposes of the dollar limitation applIcable to the Maximum PermIssible Amount. (b) "CompensatIon" - For purposes of applying the lImitatIOns of SectIons 3.04 and 3.05 of tlus ARTICLE ill, "CompensatIon" means CompensatIon as defined m Section 1.09, except Compensation does not include the PartiCIpant's mandatory contributions which are picked up by the Employer pursuant to ARTICLE IV In addition, for purposes of Sections 3.04 and 3.05 of thiS ARTICLE ill "Compensation": (i) includes ElectIve ContributIOns for any Limitation Years begInning after December 3l, 1997 Irrespective of whether the Employer has elected to include Elective Contributions as Compensation as defined under Section 1.09; and (ii) any exclUSIOn the Employer has elected under SectIon 1.09 does not apply. (c) "Maximum Permissible Amount" - The lesser of (i) $30,000 (or, if greater, the $30,000 amount as adjusted under Code Section 4l5(d)), or (Ii) 25% of the PartiCipant's Compensation for the Limitation Year. If there is a short Limitation Year because of a change in Limitation Year, the Trustees will multiply the $30,000 (or adjusted) lImitation by the following fractIOn. Number of months in the short Limitation Year l2 13 The 25% \imitatIOn set forth above m this SectIon 3.05(c) does not apply to any contnbution for medical benefits wlthm the meanmg of Code Section 401 (h) or Code SectIOn 419A(t)(2) which IS otherwise an Annual AdditIon. (d) "Employer" - The Employer that adopts this Plan. (e) "Excess Amount" - The excess of the PartIcipant's Annual AddItIOns for the LimItatIOn Year over the MaxImum Permissible Amount. (f) "Limitation Year" - The Plan Year. If the Employer amends the LimItatIOn Year to a different l2 consecutive month period, the new LimitatIon Year must begin on a date withm the LimitatIon Year for which the Employer makes the amendment, creatmg a short LimItation Year. (g) "Defined contribution plan" - A retirement plan which proVides for an mdlVldual account for each partiCipant and for benefits based solely on the amount contributed to the partiCipant's account, and any income, expenses, gams and losses, and any Forfeitures of accounts of other participants which the Board may allocate to such partiCipant's account. The Board shall treat all defined contributIOn plans (whether or not terminated) maintamed by the Employer as a smgle plan. For purposes of the \imitations of thiS Article III only, the Board shall treat employee contributions made to a defined benefit plan mamtained by the Employer as a separate defined contribution plan. The Board shall treat as a defined contribution plan an mdivldual medIcal account (as defined in Code Section 415(1)(2)) mcluded as part of a defined benefit plan mamtamed by the Employer and, for taxable years ending after December 3l, 1985, a welfare benefit fund under Code Section 4l9( e) maintained by the Employer to the extent there are post-retIrement medical benefits allocated to the separate account of a key employee (as defined m Code SectIon 4l9A(d)(3)). (h) "Defined benefit plan" - a retIrement plan which does not proVIde for mdivldual accounts for Employer contributions. The Board must treat all defined benefit plans (whether or not terminated) mamtained by the Employer as a smgle plan. (i) "Defined benefit plan fractIOn" - Projected annual benefit of the PartiCIPant under the defined benefit plan(s) The lesser of (i) 125% (subject to the "100% limItation" in paragraph (k)) of the dollar limitation m effect under Code ~4l5(b)( 1 )(A) for the Limitation Year, or (ii) l40% of the Participant's Average Compensation for his or her htgh 3 consecutive Years of Service To determine the denommator of this fraction, the Board will make any adjustment reqUIred under Code ~4l5(b) and will determme a Year of Service as a Plan Year m which the Employee completed at least 1,000 Hours of Service. The "projected annual benefit" IS the annual 14 retirement benefit (adjusted to an actuanally equivalent straIght hfe annUIty if the plan expresses such benefit m a fonn other than a straight lIfe annuity or qualified Jomt and survivor annUity) of the Participant under the terms of the defined benefit plan on the assumptIons he or she contmues employment until his or her nonnal retIrement age (or current age, if later) as stated m the defined benefit plan, his or her compensation continues at the same rate as in effect in the LimitatIon Year under consIderatIon until the date of his or her normal retirement age and all other relevant factors used to determine benefits under the defined benefit plan remain constant as of the current LimitatIOn Year for all future Limitation Years. Current Accrued Benefit. If the PartiCipant accrued benefits m one or more defined benefit plans maintained by the Employer wruch were in eXistence on May 5, 1986, the dollar limitation used in the denominator of this fraction will not be less than the PartIcIpant's Current Accrued Benefit. A Participant's Current Accrued Benefit IS the sum of the annual benefits under such defined benefit plans which the Participant had accrued as of the end of the 1986 LImitation Year (the last LimitatIOn Year beginning before January 1, 1987), determined without regard to any change m the terms or conditIons of the Plan made after May 5, 1986, and Without regard to any cost of living adjustment occurring after May 5, 1986. ThiS Current Accrued Benefit rule apphes only if the defined benefit plans individually and in the aggregate satisfied the reqUIrements of Code ~4l5 as in effect at the end of the 1986 Limitation Year. Cj) "Defined contribution plan fractIon" - The sum, as of the close of the Limitation Year, of the Annual Additions to the Participant's Account under the defined contribution plan( s) The sum of the lesser of the followmg amounts determmed for the Limitation Year and for each prior Year of Service With the Employer: (i) 125% (subject to the "lOO% lImitatIon" in paragraph (k)) of the dollar limitatIOn in effect under Code ~4l5(c)(l)(A) for the Limitation Year (determined without regard to the speCial dollar hmitations for employee stock ownership plans), or (ii) 35% of the PartiCipant's Compensation for the Limitation Year For purposes of determmmg the defined contributIon plan fraction, the Board will not recompute Annual Additions m LImitatIOn Years beginning pnor to January I, 1987, to treat all Employee contributIons as Annual AdditIons. If the Plan satisfied Code ~4l5 for LimitatIOn Years beginning pnor to January 1, 1987, the Plan Administrator will redetermine the defined contribution plan fraction and the defined benefit plan fraction as of the end of the 1986 Limitation Year, m accordance with this SectIOn 3.05. If the sum of the redetermined fractions exceeds 1.0, the Board will subtract permanently from the numerator of the defined contribution plan fractIon an amount equal to the product of (l) the excess of the sum of the fractions over 1.0, times (2) the denommator of the defined contributIon plan fraction. In making the adjustment, the Board must disregard any accrued benefit under the defined benefit plan which IS in excess of the Current Accrued Benefit. ThIs Plan continues any transitional rules applicable to the determinatIon of the defined contribution plan fraction under the Employer's Plan as of the end of the 1986 Limitation Year. 15 (k) "100% LimitatIon" If the 1 00% lImitatIon applIes, the Plan AdmInistrator must determIne the denommator of the defined benefit plan fraction and the denomInator of the defined contributIOn plan fractIOn by substItutmg 100% for 125%. The 100% lImItatIOn applIes only if: (1) the Plan's top heavy ratio exceeds 90%, or (2) the Plan's top heavy ratio IS greater than 60%, and the Employer does not provide extra mimmum benefits which satisfY Code ~4l6(h)(2). The definitions in Sections 3.05(i), 3.05(j) and 3.05(k) above only apply If the lImitatIon described m SectIon 3.04(c)(l) applIes to the Plan. 16 ARTICLE IV PARTICIPANT CONTRIBUTIONS 40l PARTICIPANT MANDATORY CONTRIBUTIONS (a) Each PartIcipant shall be reqUired to contribute an amount equal to ten percent (10%) of his or her Compensation to the Trust for each such payroll penod m whIch he or she IS a Participant. EffectIve for the payroll penods of the Employer beginrung on or after January l, 2006, the mandatory Participant contributIons required under the provlSlons of the precedIng sentence oftlus SectIon 4.01(a) shall be "picked up" each such payroll period by the Employer on behalf of each PartIcipant under Code Section 414(h)(2) as further provided for below In thiS Section 4.01. (b) The percentage contributions set forth in Section 4.0l(a) may be modified hereafter by the applIcable terms of any subsequent binding agreement between the Employer and the Board, provided such terms make specific reference to such percentage contributIOn and provided any such amendment IS approved in accordance with the provisions of Plan SectIOn 13.02. Any and all such amendments shall be affixed hereto, and the terms and proviSions of this Plan and Trust Agreement relating to such percentage contributIOn shall be deemed modified, as of and In accordance with, the terms of such bindmg agreement. (c) For all mandatory Participant contributIons reqUired under the proVISIOns of thiS Section 4 Olea) which are "picked up" by the Employer, it is understood that such "picked up" mandatory Participant contributions shall be paid by the Employer to the Trust m lIeu of such contributIOns being paid directly by each Participant. No PartiCipant shall have the optIOn of choosing to have the Employer pay him or her directly hiS or her "picked up" mandatory contribution reqUIred under SectIon 4.0l(a) instead of having such mandatory contributIon "picked up" and paid over to the Trust by the Employer. Although each PartiCipant's "picked up" mandatory contributIon under SectIon 4.0l(a) made to the Trust IS otherwise designated and treated herem as the contribution of such Participant, It is mtended that such contributIon shall be treated, for federal mcome tax purposes, as an Employer ContributIOn under Code SectIon 4l4(h)(2). (d) For purposes of determInIng the amount of the percentage contributIons set forth in thiS Section 4 Ol, each Participant's Compensation, as defined In SectIon 1.09, shall be used. However, for federal income tax purposes, the amount of a Participant's taxable income and of ills or her wages for Withholding tax purposes shall not include such PartICipant's mandatory contributIon "picked up" by the Employer under this Section 4 01. (e) The Participant Mandatory Contributions required pursuant to the provisions of thiS Section 4.0 1 shall be paid by the Employer to the Trustees on a basis during the Plan Year concerned that coincides With the Employer's then current payroll period for the Participants. 4.02 P ARTICIP ANT VOLUNTARY CONTRIBUTIONS. (a) Subject to SectIOn 4.02(b), any Participant may make voluntary contributions to the Trust for his or her own benefit. See Section 3.05(a) for the Annual Additions 17 lImitatIOns for voluntary contributIOns. A PartICipant must make a voluntm)' contribution for a particular Plan Year not later than thirty (30) days after the Accountmg Date of that Plan Year The Board will allocate and credit a voluntary contribution made for a particular Plan Year to the contributmg Participant's Account as of the Accountmg Date of that Plan Year The Board may establIsh whatever procedures It deems necessary to facilItate Participants' voluntary contributIOns. (b) ParticIPant Voluntarv Contributions From and After January l, 2006 From and after January l, 2006, Participant Voluntary ContributIons will no longer be permItted under the Plan. 403 PARTICIPANT VOLUNTARY CONTRIBUTIONS SPECIAL DISCRIMINATION TEST The Board shall determme whether the PartIcIpant Voluntary ContributIons described in Section 4.02 satIsfy one of the following average contributIOns percentage ("ACP") tests. (i) The ACP for the Highly Compensated Group does not exceed l.25 times the ACP of the Nonhighly Compensated Group, or (ii) The ACP for the Highly Compensated Group does not exceed the ACP for the Nonhighly Compensated Group by more than two (2) percentage pomts (or the lesser percentage permitted by the multiple use lImitation in Section 4 03(h)) and the ACP for the Highly Compensated Group is not more than twICe the ACP for the Nonhlghly Compensated Group. (a) Definitions. For purposes of applying thiS SectIon 4.03, the followmg defimtlOns apply (l) "Highly Compensated Employee" means an ElIgible Employee who satisfies the defimtIon m Section 1.31 of the Plan. (2) "Nonhighly Compensated Employee" means an Eligible Employee who IS not a Highly Compensated Employee. (3) "Eligible Employee" means a Participant who is elIgible to make nondeductible contributions, irrespective of whether he actually makes nondeductible contributIOns. (4) "Highly Compensated Group" means the group of Eligible Employees who are Highly Compensated Employees for the Plan Year. (5) "Nonhighly Compensated Group" means the group of ElIgible Employees who are Nonhighly Compensated Employees for the Plan Year (6) "Compensation" means, except as specifically proVided m thiS Section 4.03, Compensation as defined m Section 3.05(b). The Plan may lImit Compensation taken into account to Compensation received only for the portIOn of the Plan Year in which the Employee was an Eligible Employee and only for the portion of the Plan Year in which the Plan was In effect. (7) "Elective deferrals" are the contributions the Employer contributes to a qualIfied trust at the election of an Employee, pursuant to a Code ~401(k) arrangement. ElectIve deferrals do not mclude amounts whIch have become currently available to the Employee prior to 18 the electIon nor amounts desIgnated as nondeductible contributIOns at the tIme of deferral or contributIOn. (8) "Matchmg contributIons" are contributions made by the Employer on account of electIve deferrals under a Code ~401(k) arrangement or on account of employee contributIOns. Matclung contributIons also mclude Participant Forfeitures allocated on account of such elective deferrals or employee contributions. (9) "NonelectIve contributions" are contributions made by the Employer which are not subject to a deferral election by an Employee and which are not matchmg contributIons. (10) "Qualified matchmg contributIons" are matching contributIons whIch are 100% Nonforfeitable at all tImes and which are subject to the distributIon restnctions described in paragraph (12). Matching contributIons are not 100% Nonforfeitable at all times If the Employee has a 100% Nonforfeitable interest because of his Years of Service taken into account under a vestmg schedule. (1l) "Qualified nonelective contributions" are nonelective contributions whIch are 100% Nonforfeitable at all tImes and which are subject to the distribution restnctIons described m paragraph (12). Nonelective contributions are not 100% Nonforfeitable at all tImes if the Employee has a 100% Nonforfeitable interest because of his Years of Service taken mto account under a vestmg schedule. (12) "Distribution restrictions" means the Employee may not receive a distribution of the specified contributIons (nor earnings on those contributIOns) except in the event of (a) the Participant's death, disability, terminatIon of employment or attamment of age 5912, (b) financial hardship satIsfying the requirements of Code ~40l(k) and the applIcable Treasury regulations, (c) a plan termination, without establishment of a successor defined contributIon plan (other than an ESOP), (d) a sale of substantially all of the assets (witlun the meanIng of Code ~409(d)(2)) used in a trade or business, but only to an employee who contmues employment with the corporatIOn acquinng those assets, or (e) a sale by a corporation of ItS mterest m a subSidiary (Within the meamng of Code ~409(d)(3)), but only to an employee who continues employment with the subSidiary. For Plan Years beginning after December 31, 1988, a distribution on account of finanCial hardship, as described in clause (b), may not mclude earnings on elective deferrals credited as of a date later than December 31, 1988, and may not include qualified matchmg contributions and qualified nonelective contributIOns, nor any eammgs on such contributIons, mespective of when credited. A distributIon described III clauses (c), (d) or ( e), if made after March 31, 1988, must be a lump sum distribution, as required under Code ~40 I (k)(1 0). (13) "Employee contributIons" are contributions made by a PartiCipant on an after-tax baSIS, whether voluntary or mandatory, and deSignated, at the time of contributIon, as an employee (or nondeductible) contribution. Elective deferrals are not employee contributIons. PartiCipant nondeductible contributions, made pursuant to Section 4.02 of the Plan, are employee contributIons. (14) "Aggregate contributions" are matching contributions (other than qualified matchmg contributions used to satisfy the actual deferral percentage test under a Code ~40l(k) arrangement) and employee contributions. 19 (b) CalculatIOn of ACP. The ACP for a group IS the average of the separate contribution percentages calculated for each ElIgible Employee who is a member of that group. An Eligible Employee's contribution percentage for a Plan Year is the ratIo of the ElIgible Employee's aggregate contributions for the Plan Year to the Employee's Compensation for the Plan Year. The Board operatIOnally may include electIve deferrals not used to satIsfy the actual deferral percentage (t1ADptI) test under a Code ~401(k) arrangement. (c) SpecIal aggregation rule for Highlv Compensated Employees. To determIne the contributIOn percentage of any Highly Compensated Employee, the aggregate contributIOns taken mto account must include any matchmg contributions (other than qualIfied matchmg contributIons used to satisfy the ADP test under a Code ~401(k) arrangement) and any Employee contributions made on his behalf to any other plan maintained by the Employer, unless the other plan IS an ESOP If the plans have different plan years, the Board will determme the combmed aggregate contributions on the basIs of the plan years endmg in the same calendar year (d) AggregatIOn of certain plans. If the Employer treats two plans as a smgle for coverage or nondlscnminatIOn purposes, the Employer must combme the plans to determme whether either plan satisfies the ACP test. This aggregation rule applies to the ACP determInatIOn for all ElIgible Employees, irrespective of whether an Eligible Employee is a Highly Compensated Employee or a Nonhighly Compensated Employee. The Board may aggregate plans If the plans have the same plan year and use the same testmg method. An Employer may not aggregate an ESOP (or the ESOP portion of a plan) with a non-ESOP plan (or non-ESOP portIOn of a plan). If the Employer aggregatmg plans under this Section 4.03(d) is using pnor year testing, the Board must adjust the Nonhighly Compensated Group ACP for the pnor year as provided In the Code or In other applIcable guidance. ( e) Distribution of excess aggregate contributions. If the Board determmes the Plan fails to satisfy the ACP test for a Plan Year, the Trustees, as directed by the Board, must dIstribute the vested excess aggregate contributIOns, as adjusted for allocable mcome, during the next Plan year. However, the Employer may incur an excise tax WIth respect to the amount of excess aggregate contributions for a Plan Year not distributed to the appropriate Highly Compensated Employees during the first 2Y2 months of that next Plan Year. The excess aggregate contributIOns are the amount of aggregate contributions allocated on behalf of the Highly Compensated Employees whIch causes the Plan to fail the ACP test. The Board will determine the total amount of the excess aggregate contributions by starting With the Highly Compensated Employee(s) who has the greatest contribution percentage, reducmg hls/her contribution percentage (but not below the next highest contribution percentage), then, if necessary, reducing the contribution percentage of the Highly Compensated Employee(s) at the next highest contributIOn percentage level, includmg the contribution percentage of the Highly Compensated Employee( s) whose contribution percentage the Board already has reduced (but not below the next highest contribution percentage), and contInuIng m thiS manner until the ACP for the Highly Compensated Group satisfies the ACP test. After the Board has determihed the total excess aggregate contribution amount, the Trustees, as directed by the Board, then will distribute (to the extent vested) to each HigWy Compensated Employee his/her respective share of the excess aggregate contributions. The Board will determme each HigWy Compensated Employee's share of excess aggregate contributions by startmg wtth the Highly Compensated Employee(s) who has the highest dollar amount of aggregate contributions, reducing the amount of his/her aggregated contributions (but not below the next highest dollar amount of the aggregate contributions), then, if necessary, reducmg the amount of 20 aggregate contributIOns of the Highly Compensated Employee(s) at the next highest dollar amount of aggregate contributIons, mc1uding the aggregate contributIons of the Highly Compensated Employee(s) whose aggregate contributlons the Board already has reduced (but not below the next highest dollar amount of aggregate contributions), and contmuing in this manner untIl the Trustees have distributed all excess aggregate contributIOns. (f) Allocable income. To determine the amount of the correctIve distributIOn required under this SectIOn 4 03, the Board must calculate the allocable income for the Plan Year (but not beyond the Plan Year) in which the excess aggregate contributions arose. "Allocable mcome" means net mcome or net loss. To calculate allocable income for the Plan Year, the Board will use a urnform and nondiscnminatory method which reasonably reflects the manner used by the Board to allocate income to Participants' Accounts. (g) Charactenzation of Excess Aggregate ContributIOns. The Board will treat a Highly Compensated Employee's allocable share of excess aggregate contributIons attributable to tills Plan first as attributable to his PartiCipant Voluntary Contributions and then to qualified Employer nonelective contributions used in the ACP test. (h) Multiple Use Limitation. If at least one Highly Compensated Employee IS includible in the ADP test under a Code S401(k) arrangement mamtamed by the Employer and in the ACP test under this Section 4.03, the sum of the Highly Compensated Group's ADP and ACP may not exceed the multiple use lImitation. The multiple use lImitation is the sum of (l) and (2): (1) l25% of the greater of: (i) the ADP of the Nonhighly Compensated Group under the Code ~401(k) arrangement; or (ii) the ACP of the Nonhlghly Compensated Group for the Plan Year beginning with or within the Plan Year of the Code S40 1 (k) arrangement. (2) 2% plus the lesser of (l)(i) or (1 )(ii), but no more than twice the lesser of (l )(i) or (l )(ii). The Board, in lieu of determining the multiple use lImitation as the sum of (I) and (2), may elect to determme the multiple use lImitation as the sum of (3) and (4): (3) 125% of the lesser of: (i) the ADP of the Nonhighly Compensated Group under the Code S40l(k) arrangement; or (ii) the ACP of the Nonhlghly Compensated Group for the Plan Year beginning with or withm the Plan Year of the Code S40 1 (k) arrangement. (4) 2% plus the greater of (3)(i) or (3)(ii), but no more than twice the greater of (3)(i) or (3)(ii). The Board will determine whether the Plan satisfies the multiple use limitation after applymg the ADP test to the Code S40l(k) arrangement and the ACP test under this SectIon 4.03 and using the deemed maximum corrected ADP and ACP percentages I the event the Plan failed either or both tests. If, after applying this Section 4.03(h), the Board determines the Plan has failed to satIsfy the multiple use limitation, the Board will correct the failure by treating the excess amount as excess aggregate contributions under this Section 4.03. The multiple use limitation does not apply unless, prior to its applicatIon, the ADP and the ACP of the Highly Compensated Group each 21 exceeds 125% of the respectIve percentages for the Nonhighly Compensated Group. 4.04 PARTICIPANT ROLLOVER CONTRIBUTIONS The Trustees, III theIr sole dIscretIon, may, but shall not be obligated to, accept from a Participant a "rollover contributIon" which the Code permits an employee to transfer either directly or indirectly from one qualified plan to another qualified plan. Before acceptlllg a rollover contributIOn, the Trustees may reqUIre an Employee or Participant to furnish satisfactory evidence that the proposed transfer IS III fact a "rollover contributIon" which the Code permits an employee to make to a qualIfied plan. AdditIonally, before accepting a rollover contributIon, the Trustees may reqUIre the Employer's wntten consent, and the PartiCIpant's or Employee's filing with the Trustees any forms prescribed by them for such purpose. The Trustees may also require that If property other than cash is to be contributed to the Trust as a rollover contribution, such property must be lIqUIdated mto cash pnor to Its contribution to the Trust. A rollover contributIOn is not an Annual AdditIOn under ArtIcle III nor a Participant Voluntary Contribution under Section 4.02. The Trustees, in their sole discretion, may adopt and/or modify from time to time rules and procedures applicable to the Plan's acceptance of a rollover contribution described under the provlSlons of this Section 4.04. The Trustees, III their sole discretion, may invest the rollover contribution either in a segregated investment account for the Participant's sole benefit or as part of the Trust Fund. As of the Accountmg Date (or other valuation date) for each Plan Year, the Trustees shall allocate and credit the net mcome (or net loss) from a PartiCIpant's segregated Account, any expenses allocable thereto and the mcrease or decrease in the fair market value of the assets of a segregated Account solely to that Account as provided m SectIon 9.ll. An Employee, pnor to satisfying the Plan's elIgibilIty conditIOns, may make a rollover contribution to the Trust to the same extent and m the same manner as a PartiCipant. If an Employee makes a rollover contributton to the Trust pnor to satIsfying the Plan's elIgibility condItions, the Trustees must treat the Employee as a PartiCipant for all purposes of the Plan, except the Employee IS not a Participant for purposes of sharing m Employer Contributions or PartiCIpant Forfeitures under the Plan, nor may the Employee make PartiCipant contributIOns under ARTICLE IV until he or she actually becomes a PartiCipant m the Plan. If the Employee has a SeparatIon from Service pnor to becommg a PartiCipant, the Trustees will distribute hiS or her rollover contribution Account to him or her as if It were an Employer ContributIOn Account. 4.05 PARTICIPANT CONTRIBUTION AND APPRECIATION OF EMPLOYER CONTRIBUTIONS ACCOUNT - FORFEITABILITY. A PartiCipant's Accrued Benefit is, at all times, one hundred percent (100%) Nonforfeitable to the extent the value of hiS or her Accrued Benefit IS derived from Participant mandatory, voluntary and rollover contributions actually made by him or her to the Trust for his or her own benefit, or is derived from the excess of the value of his or her Employer Contributions Account over the forfeitable percentage (if any) of the aggregate amount of all actual Employer Contributions then credited to such PartIcipant's Employer Contributions Account. 406 PARTICIPANT VOLUNTARY AND ROLLOVER CONTRIBUTION WlTHDRA W AU DISTRlBUTION A PartiCipant, by giving prior written notIce to the Trustees, 22 may Withdraw all or any part of the value of his or her Accrued Benefit derived from hIs or her PartIcipant voluntary or rollover contributIOns (includmg earnings thereon). A distributIOn of a Participant's Accrued Benefit derived from hiS or her Participant voluntary or rollover contributIons must comply with the qualIfied joint and SurviVor and pre-retirement survivor annUity provisions of Code SectIOns 401(a)(Il) and 4l7, if said Code SectIOns apply The Trustees shall distribute a Participant's unwIthdrawn Accrued Benefit attributable to ills or her PartiCIpant voluntary and rollover contributIons (includmg earrungs thereon) at the same time the Trustees distribute the Participant's Accrued Benefit attributable to Employer ContributIOns and PartICipant Mandatory Contributions. The Trustees, m their sole discretIon, may adopt and/or modify from time to time rules and procedures applIcable to a PartiCipant's nght to withdraw all or any part of the value of hiS or her Accrued Benefit denved from his or her Participant voluntary or rollover contributions (mcluding eammgs thereon) described under the proviSIOns of tills Section 4.06. 4.07 PARTICIPANT CONTRIBUTION - ACCRUED BENEFIT. The Board shall maintam, or shall direct the Trustees to maintain, a separate Account in the name of each PartIcIpant to reflect the Partlctpant's Accrued Benefit under the Plan derived from hIS or her PartiCipant Voluntary Contributions. The Board shall maintain, or shall direct the Trustees to maintain, a separate Account m the name of each PartiCipant to reflect the PartIcipant's Accrued Benefit under the Plan denved from his or her Participant Rollover Contributions. A PartiCIpant's Accrued Benefit denved from his or her Participant contributions as of any applicable date IS the balance of his or her separate PartiCipant contribution Account(s). 23 ARTICLE V VESTING 5.01 GENERAL. A Participant, Former PartIcipant or BeneficIary shall acqUIre a non- forfeitable interest m the Accounts standmg m ills or her name only as heremafter proVIded for m this Article V After a Participant so acqUIres a non-forfeitable mterest under the provisions of thiS Article V, such non-forfeitable interest shall carry over and contmue after such ParticIpant becomes a Former Participant or a BenefiCiary deslgnation with respect thereto becomes applIcable, subject to charges, deductions, distributions and Forfettures With respect thereto under the Plan. The PartIcipant's Accrued Benefit denved from ParticIpant Mandatory Contributions, Participant Voluntary Contributions and Participant Rollover Contributions shall be at all tImes lOO% Nonforfeitable. 5.02 PARTICIPANT DEATH, DISABILITY OR ATTAINMENT OF NORMAL RETIREMENT AGE. A Participant's Accrued Benefit derived from Employer ContributIOns Will be lOO% Nonforfeitable in the event of a Participant's Separation from Service for any of the followmg reasons: (a) The PartiCipant's death; (b) The Participant's Disability, as defined m Section 1 44., or (c) The Participant's attainment of Normal Retirement Age. 5.03 VESTING SCHEDULE. Except as prOVided m Sections 50l and 5.02, for each Vestmg Year of Service, a PartiCipant's Nonforfeitable percentage of hiS or her Accrued Benefit denved from Employer Contributions equals the percentage III the following vestmg schedule: Vestmg Years of Service With the Emplover Percent of Nonforfeitable Accrued Benefit Less than 3 .. .., 3 but less than 4 . . .. ..... 4 but less than 5 .. 5 but less than 6 .. .... .. 6 but less than 7 . . .. .,. 7 or more. . ., ...... 0% 20% 40% 60% 80% 100% 5.04 YEAR OF SERVICE - VESTING (a) Vestmg Year of Service - DefinitIOn. For purposes of vesting under Section 5.03, a Vestmg Year of Service shall be computed on the followmg basis. 24 (I) With respect to a Participant who mcurs a SeparatIon of ServIce on or before December 3l, 2005, a Vestmg Year of Service shall be computed on the basIS of the Plan Year; and (2) With respect to a Participant who mcurs a SeparatIon of Service on or after January l, 2006, a Vestmg Year of Service shall be computed on the basis of consecutive twelve (12) month vesting computatIOn penods. The initial vestmg computatIOn penod IS the first consecutIVe twelve (12) month period measured from the Employee's Employment Commencement Date. The Plan measures subsequent vesting computation periods begmnmg with each annIversary of an Employee's Employment Commencement Date. "Employment Commencement Date" means the date on which the Employee first IS credited with an Hour of Service as an Employee. A re- employed Employee under Section 2.02 establishes a new Employment Commencement Date on the date he or she is re-employed by the Employer as an Employee and IS first credIted with an Hour of Service as a re-employed Employee. (b) Vestmg Year of Service - Computation. For purposes of vestmg under SectIOn 5.03, a Participant's Vesting Year(s) of Service shall be computed subject to followmg: (1) With respect to a Participant who mcurs a SeparatIon of ServIce on or after January I, 2006, such Participant shall be credited with one (l) Vesting Year of Service for each Vestmg Year of Service during which he or she is credited with at least 1,600 Hours of Service as an Employee dunng such Vestmg Year of Service; and (2) If a Participant mcurs a Separation from Service, and such Participant IS subsequently re-employed as an Employee and thus subsequently becomes a PartiCipant in the Plan, then such Participant's Vestmg Years of Service accrued pnor to such Participant's Separation from Service shall be disregarded for purposes of vestmg under SectIon 5 03 m determlmng his or her Nonforfeitable percentage of his or her Accrued Benefit derived from Employer Contributions after he or she IS subsequently re-employed and subsequently becomes a PartiCIpant in the Plan. 5.05 FORFEITURE OCCURS. Effective as of January I, 2006, except for a forfeiture under SectIon 9.14, a Participant's forfeiture, if any, of his or her Accrued Benefit denved from Employer contributIOns occurs under the Plan as of the earlier of (a) the date the Participant receives a cash out distributIOn, as such term IS defined in the following sentence, and (b) the last day of the calendar quarter immediately followmg the calendar quarter m which such PartiCipant term mates employment as an Employee With the Employer. A "cash out distributIOn" is a dIstributIOn of a PartiCipant's entire Nonforfeitable Accrued Benefit under the Plan. If the Trustees forfeit a lost Participant's Accrued Benefit under SectIon 9.l4(b), such forfeiture occurs as of the date the Trustees make such forfeiture as proVided in Section 9.14. The Trustees determine the percentage of a Participant's Accrued Benefit forfeiture, if any, under this Section 5.05 solely by reference to the vestmg schedule of Section 5.03. A Participant will not forfeit any portion of his Accrued Benefit for any other reason or cause except as expressly provided by this Section 5.05 or as provided under Section 9.14. 25 ARTICLE VI DISTRIBUTIONS 601 TIMING OF DISTRffiUTIONS. Unless, pursuant to Section 6.03, the Participant or the Beneficiary elects m writmg to a different tIme or method of payment, the Board shall direct the Trustees to commence distribution of a PartICipant's Nonforfeitable Accrued Benefit m accordance with this SectIOn 6.01. For all purposes ofthts Article VI, the term "annuity startmg date" means the first day of the first period for which the Plan pays an amount as an annUIty or III any other form, but in no event shall the "annUIty starting date" be earher than a Participant's SeparatIOn of Service. A "dIstribution date" under this Article VIIS the earhest admInIstratIVely feasible date followmg the PartIcipant's SeparatIOn from ServIce. Anything contained herein to the contrary notwithstandmg, any distributIon of a PartICIpant's NonforfeItable Accrued Benefit is subject to the apphcable provIsions of SectIOn 602. (a) Distribution Upon SeparatIOn from Service For a Reason Other Than Death. Upon the Participant's Separation from ServIce IS for any reason other than death, the Board shall commence distribution of the Participant's Nonforfeitable Accrued Benefit III a form and at the time elected by the Participant pursuant to SectIOn 6.03. If the PartICipant fails to make such an election Within SIX (6) months after hiS or her receipt of the wntten notIce required under Section 6.03, then the Board may distribute the Participant's Nonforfeitable Accrued Benefit m a lump sum on any distribution date the Board, in its discretIOn, may select. (b) DIstribution Upon Death of the Participant. In the event of a PartIcipant's Separation from Service on account of his or her death, the Board shall distribute a PartICIpant's undIstributed Nonforfeitable Accrued Benefit in the Trust at the tIme of the PartIcipant's death to the PartiCIpant's designated Beneficiary, in accordance With this Section 6.01 (b). The Board shall distribute the deceased PartiCipant's undIstributed Nonforfeitable Accrued Benefit at the tIme and m the form elected by the Participant or, if applicable, by the Beneficiary, as permitted under this Article VI. In the absence of such electIon, the Board may distribute to the deceased Participant's designated Beneficiary such Participant's undistributed Nonforfeitable Accrued Benefit m a lump sum on any distribution date as soon as practIcable following the death of the PartIcipant, or, if later, on any distributIOn date as soon as practIcable following the date the Board receive notification of or otherwise confirm the PartiCIpant's death. 6 02 REQUIRED MINIMUM DISTRIBUTIONS. (a) Prionty of Required Minimum DistributIOn. If any distributIon under this ArtIcle VI (by Plan proVision or by Participant electIOn or nonelection), would commence later than the PartiCipant's required beginning date ("RBD"), the Plan Admmistration Committee must direct the Trustees to make distributIon on the PartiCIpant's RBD The effective date for the RBD proviSIOns of thiS Section 6.02 shall be January l, 2001 (l) RBD - More Than 5% Owner. A PartiCipant's RBD is the April I following the close of the calendar year m which the PartiCipant attams age 70 1/2 if the 26 Participant IS a more than 5% owner (as defined in Code g4l6) with respect to the Plan Year endmg in that calendar year. If a Participant IS a more than 5% owner at the close of the relevant calendar year, the Participant may not discontmue required mmlmum distributIOns notwithstandmg the Participant's subsequent change m ownership status. (2) RBD - Non 5 % Owners. If the Participant IS not a more than 5% owner, the Participant's RBD IS the April 1 following the close of the calendar year m whIch the Participant incurs a Separation from Service or, if later, the April 1 following the close of the calendar year m which the Participant attains age 70 1/2. If a Participant IS not a more than 5% owner, the Participant's pre-1997 RBD (if applicable) is April 1 followmg the close of the calendar year in which the Participant attains age 70 1/2. (3) Form of Distribution. The Plan Admmistration CommIttee will direct the Trustees to make a required minimum distribution at the PartiCipant's RBD in a lump sum unless the Participant, pursuant to the provisions of this Article VI, makes a valId election to receIve an alternative form of payment. (b) Participant Transitional Elections. (1) Election to Discontinue Distributions. A Participant who (a) IS not a more than 5% owner; (b) had attamed age 70 1/2 prior to 1997; (c) had commenced prior to 1997 required minImum distributions under the pre-l997 RBD; and (d) has not mcurred a SeparatIon from Service, has a continuing election to discontmue receiving distributIOns from the Plan (which previously were required mimmum distributions under the Plan). A Participant who makes an electIOn under this Section 6.02(b)( l) must establish a new annuity startmg date when the Partlctpant recommences payment of the PartiCipant's Nonforfeitable Accrued Benefit under the Plan. A PartiCipant may not make any election under this SectIon 6 02(b)( 1) which is inconSistent with any QDRO applicable to the PartiCipant's Nonforfeitable Accrued Benefit. (2) Election to Postpone Distributions. A PartiCipant who' (a) is not a more than 5% owner; and (b) attained age 70 l/2 after 1996 (or who attained age 70 1/2 in 1996, but who had not commenced required minImum distributIOns in 1996) may elect under this Section 6.02(b)(2) to postpone distributIOn of required mmimum distributions until the Participant's RBD established under SectIon 6.02(a). If the Participant attained age 70 1/2 in 1996, the PartiCipant must have elected under thiS SectIon 6.02(b )(2) to postpone distributions by December 31, 1997. If the PartiCipant attamed age 70 1/2 after 1996, the PartIcipant must make the election to postpone distributIOn under thiS Section 6.0l(b)(2) not later than April 1 of the calendar year followmg the year m which the Participant attams age 70 1/2. (3) Election Requirements. All Participant elections made under this Section 6.02(b) are subject to and must be consistent With the terms of this Section 6.02. A Participant shall make an election under thiS Section 6.02(b) in writmg on a form prescribed by the Plan Admimstration Committee. (c) Minimum DistributIon Requirements for PartiCIPants. The Plan AdminIstratIon Committee may not direct the Trustees to distribute the Participant's Nonforfeitable Accrued Benefit, nor may the Participant elect to have the Plan Administration 27 Committee direct the Trustees to distribute the Participant's Nonforfeitable Accrued Benefit, under a method of payment which, as of the Participant's RBD, does not satisfy the mmlmum distributIon reqUIrements under Code ~40l(a)(9) and the applIcable Treasury regulatIOns. (1) CalculatIon of Amount. The reqUIred mmimum distribution for a calendar year ("distribution calendar year") equals the Participant's NonforfeItable Accrued Benefit as of the latest valuation date preceding the begmning of the distribution calcndar year (such valuatIOn date bemg withm the "valuation calendar year") divided by the ParticIpant's lIfe expectancy or, if applIcable, the jomt and last survivor expectancy of the PartiCipant and the PartIcipant's designated Beneficiary (as determined under Article VIII, subject to the reqUIrements of Code ~40l(a)(9)) The Plan AdmmistratlOn CommIttee WIll mcrease the Participant's NonforfeItable Accrued Benefit, as determined on the relevant valuation date, for contributions or forfeitures allocated after the valuation date and by December 3l of the valuation calendar year, and will decrease the valuation by distributIOns made after the valuatIOn date and by December 31 of the valuatIOn calendar year. For purposes of thIS valuation, any portion of the required mmimum distribution for the first distribution calendar year made after the close of that year IS a distribution occumng in that first distribution calendar year (2) Recalculation. In computing a reqUIred mmlmum dIstribution, the Plan Admmlstration Committee must use the umsex life expectancy multIples under Treas. Reg. ~l 72-9. The Plan Admmlstration Committee, only upon the PartiCipant's timely electIon, wIll compute the reqUIred mimmum distributIOn for a distribution calendar year subsequent to the first distributIOn calendar year by redetermmmg ("recalculation" of) the PartiCipant's life expectancy or the Participant's and spouse designated BenefiCIary's lIfe expectancies as elected. However, the Plan Admmistration Committee may not redetermme the jomt life and last survIvor expectancy of the Participant and a nonspouse designated Beneficiary in a manner which takes mto account any adjustment to a life expectancy other than the Participant's lIfe expectancy A PartiCIpant must elect recalculation under thiS SectIOn 6.02(c)(2) m wntmg and on a form the Plan AdmmlstratIon CommIttee prescribe, not later than the PartiCIpant's RBD (3) Minimum DIstributIOn Incidental Benefit (MDIB). If the PartiCIpant's spouse IS not the Participant's deSignated Beneficiary, a method of payment to the PartiCIpant (whether by Participant electIon or by Plan AdmmlstratIon Committee directIOn) must satIsfy the MDIB requirement under Code ~40l(a)(9) for distributions made on or after the Participant's RBD and before the Participant's death. To satIsfy the MDIB reqUIrement, the Plan AdmmlstratIon Committee will compute the Participant's required minimum dIstributIOn by substItuting the applicable MDIB dlVlSor for the applIcable lIfe expectancy factor, if the MDIB divisor IS a lesser number Following the PartIcipant's death, the Plan AdmmlstratlOn Committee will compute the minimum distribution reqUIred by Section 6.02(d) solely on the basis of the applIcable life expectancy factor and wIll disregard the MDIB factor. (4) Payment Due Date. The reqUIred mmimum distributIon for the first distribution calendar year is due by the Participant's RBD The required mimmum distribution for each subsequent distribution calendar year, includmg the calendar year in which the Participant's RBD occurs, IS due by December 3l of that year. (5) Nontransferable Annuity. If the PartiCipant receives dIstributIOn in 28 the form of a Nontransferable Annuity, the distributIOn satisfies this SectIOn 6.02(c) If the contract complIes with the requirements of Code g401(a)(9). (d) Mimmum Distribution ReqUIrements for BeneficIanes. The method of distributIon to the Participant's Beneficiary must satIsfy Code s401(a)(9). (1) Death After RBD. If the Participant's death occurs after the Participant's RBD, the Plan Administration Committee must direct the Trustees to distribute the Participant's remaming benefit to the Beneficiary at least as rapidly as under the method m effect for the Participant, detennmed without regard to the MDIB reqUIrements of SectIOn 6.02(c)(3) (2) Death Prior to RBD. If the Participant's death occurs pnor to the PartiCipant's RBD, the method of payment to the BenefiCiary must proVide for completIon of payment to the Beneficiary over a period not exceedmg: (i) five (5) years after the date of the PartiCipant's death, or (ii) if the BenefiCiary is a deSignated BenefiCiary, the designated BenefiCiary's life expectancy. A "deSignated Beneficiary" is a BenefiCiary deSignated by the Participant under SectIon 8.01 or determmed under Section 8.02. The Plan Administration Committee may not direct payment of the PartiCipant's Nonforfeitable Accrued Benefit over a penod described in SectIOn 6.02(d)(2)(ii) unless the Plan Admmistration Committee will direct the Trustees to commence payment to the designated Beneficiary no later than the December 31 following the close of the calendar year m which the Participant's death occurred or, if later, and the deSignated Beneficiary is the Participant's surviving spouse, December 3l of the calendar year III which the PartiCipant would have attamed age 70 1/2. If the Plan Administration Committee direct the Trustees to make distributIon in accordance with Section 6.02(d)(2)(ii), the mmimum distribution for a distributIOn calendar year equals the Participant's Nonforfeitable Accrued Benefit as of the latest valuation date preceding the beginnmg of the distribution calendar year diVided by the designated BenefiCiary's life expectancy. The Plan Admimstration Committee must use the umsex life expectancy multiples under Treas. Reg. S l. 72-9 for purposes of applying this Section 6.02( d). (3) Recalculation. The Plan Administration Committee, only upon the Participant's election (under Section 6.02(c)(2)) or the PartiCipant's surviving spouse designated BenefiCiary's electIOn, will recalculate the life expectancy of the PartiCipant's survivmg spouse not more frequently than annually. However, the Plan Administration Committee may not recalculate the life expectancy of a nonspouse deSignated Beneficiary after the Plan AdmmistratIon Committee commence payment to the designated BenefiCiary. The Plan AdmimstratlOn Committee will apply this Section 6.02(d) by treating any amount paid to the PartICipant's child, which becomes payable to the PartiCipant's surviving spouse upon the child's attaming the age of majority, as paid to the Participant's surviving spouse. A surviving spousep29 designated BeneficIary must elect recalculatIOn under this SectIOn 6 02(d)(3) m writmg and on a form the Plan AdmmlstratIon Committee prescribe not later than the last day of the spouse's first distributIOn year. (4) BenefiCIary ElectIOn. If the PartICipant under SectIOn 6 0 1 (b) had not elected the payment method or payment term, the Participant's BenefiCIary must elect the method of distributIon no later than the date speCified above upon which the Plan AdmmlstratIOn Committee must direct the Trustees to commence dIstributIOn to the BenefiCIary If the BenefiCiary fails to elect tImely a distribution method, the Plan Admmistratlon Committee must direct the Trustees to commence distribution within the tIme reqUired for a PartIcIpant who dies WIthout a designated Beneficiary. (e) Model Amendment. The Employer elects to apply the follOWIng IRS Model Amendment: With respect to distributIOns under the Plan made on or after January l, 200l, for calendar years begmnmg on or after January l, 2001, the Plan will apply the mmlmum distributIOn requirements of Section 40l(a)(9) of the Internal Revenue Code m accordance WIth the regulatIOns under Section 40l(a)(9) that were proposed on January l7, 2001, (the "2001 Proposed Regulations"), notwithstanding any proviSIOn of the Plan to the contrary If the total amount of required mmlmum distributions made to a PartiCipant for 200 1 pnor to the January l, 200l effective date are equal to or greater than the amount of reqUired minImum dIstributIons determined under the 2001 Proposed RegulatIons, then no additional distributIOns are reqUired for such PartiCIpant for 2001 on or after such date. If the total amount of reqUired mInimum distributIons made to a Participant for 200l prior to the January 1, 200l effectIve date are less than the amount determmed under the 2001 Proposed Regulations, then the amount of reqUired mmlmum dIstributIOns for 200 1 on or after such date will be determined so that the total amount of required mmlmum distributions for 200 I is the amount determmed under the 200 1 Proposed RegulatIOns. This amendment shall continue m effect until the last calendar year begmnmg before the effectIve date of final regulations under sectIon 401 (a)(9) or such other date as may be pubhshed by the Internal Revenue Service. 6.03 NOTICE. ELECTION AND METHOD OF DISTRIBUTION. (a) DistributIOn NotIce. Not earher than nInety (90) days, but not later than thirty (30) days, before the PartiCipant's annUity starting date, the Board must proVide a wntten notice (or a summary notice as permitted under Treasury regulations) to a Participant who IS eligible to make a distribution election under this SectIon 6.03 ("distributIon notIce"). The distribution notice must include informatIOn reqUired by the Code or apphcable Treasury regulations, such as an explanation of the optional forms of benefit in the Plan, the matenal features and relative values of those options, the Participant's right to defer distributIOn as may be permitted m the Plan, the provisions under which the Participant may have a distribution directly transferred to another eligible retirement plan, and the proVISions which require the WithholdIng of tax on the distribution if it is not directly transferred to another elIgible retirement plan. A PartiCipant may elect any method of payment of the Participant's Nonforfeitable Accrued Benefit that IS otherwise permitted under the proviSIOns of ARTICLE VI, which 30 payment(s) commence as of any administratively practicable tIme (as determmed III the sole discretion of the Board) which IS earlier than thirty (30) days followmg such Participant's receipt of the distributIon notIce, by such Participant executmg a waiver III wnting of the remamder of such thirty (30) day penod and delivenng such written WaIver to the Board. (b) Right of Election. The Participant (or his or her Beneficiary m the case of the Participant's death, or his or her legal representative m the case of the Participant's disability) shall have the sole nght and discretion to elect the method of payment of the ParticIpant's Nonforfeitable Accrued Benefit, as long as the method of payment selected IS one of the methods described in Sections 6.03(c)(l), 6.03(c)(2), 603(c)(3) or 603(c)(4), and otherwise complies with the proviSIOns and requirements of Section 6.02 and any other applicable proVisions of the Plan. With respect to the election of a method of payment authorized under SectIOn 603(c)(5), the Participant (or his or her Beneficiary in the case of the PartiCipant's death, or his or her legal representatIve m the case of the Participant's disability) shall have the right and discretIOn to elect such a method of payment, but any such method of payment so elected must be approved by the Board and must otherwise comply with the provisions and requirements of Section 6 02 and any other applicable provisions of the Plan. In granting or denying its approval of any such method of payment so elected under the proVisions of Section 6.03(c)(5), the Board shall not unreasonably withhold their approval and shall act in a non-discriminatory manner. (c) Methods of Distribution. Subject to the proVISIOns of SectIOn 6.03(b), the Board after consultatIon with the Participant, (or his or her Beneficiary in the event of the PartICipant's death, or hiS or her legal representatIve in the event of the Participant's disability), will direct the Trustees to distribute the balance of his or her Nonforfeitable Accrued Benefit to the recipient thereof under one of the following methods. (l) By payment in a lump sum. (2) By payment in monthly, quarterly or annual installments over a fixed reasonable penod of tIme, not exceeding the life expectancy of the PartiCipant, or the Joint life and last survivor expectancy of the Participant and the Participant's designated Beneficiary (3) A straight lIfe annuity, payable no less frequently than annually, With payment of the Participant's Nonforfeitable Accrued Benefit endmg on the Participant's death. (4) A life annuity, payable no less frequently than annually, with a term certain guaranteed. The term certain cannot exceed the Participant's life expectancy, or the Jomt life and last survivor expectancy of the Participant and hiS or her designated Beneficiary. If a Participant dies before the Trustees have made the guaranteed number of payments, the Board shall direct the Trustees to continue the balance of the payments to the Participant's deSignated BenefiCiary. (5) Any other form of payment of the Participant's Nonforfeitable Accrued Benefit which the Board may approve. However, such form of payment cannot extend beyond the PartiCipant's life, the life of the Participant and hiS designated Beneficiary, the Participant's life expectancy or the jOlllt life and last survivor expectancy of the PartiCIpant and 31 his or her designated BeneficIary. (d) Board' Right to Modify Method of DistributIon. The Board may at any time modify the method of payment elected pursuant to the provIsions of Section 6 03(b) to the extent there is still an adjusted balance m the Accounts concerned from which payments are to be made and so long as (1) the new method of payment IS consented to m writmg by the PartIcIpant concerned (or hiS or her BenefiCiary m the event of such Participant's death, or hiS or her legal representative in the event of such PartiCipant's disabilIty), (2) the new method of payment IS one aVaIlable under the Plan, and (3) the new method of payment otherwise complIes WIth the proVISIOns and requirements of thiS SectIOn 6.03, Section 6 02 and any other applIcable proviSIOns of the Plan. (e) PartiCipant's RIght to Modify Method of Distribution. A Participant may reconSider hiS or her distribution election under Section 603(b) at any time pnor to hiS or her annuity starting date and make a different distribution election as of any other distribution date permitted under the Plan provide that such different distribution electIOn and method of payment otherwIse comply with the provisions and reqUIrements of thiS SectIOn 6.03, SectIOn 6 02 and any other applicable proviSIOns of the Plan. (f) Segregated Investment Account. To facilitate installment payments under this Article VI, the Board may segregate all or any part of the Participant's Nonforfeitable Accrued Benefit in a segregated investment Account as provided under SectIOn 9.ll (d). (g) Nontransferable Annuity. Anything contained herein to the contrary notwithstandmg, If an annuity method of payment of a PartiCipant's Nonforfeitable Accrued Benefit IS the method of payment selected as provided under the provISIons of thiS Section 6.03, the Board, m their sole discretion, may effectuate said annuity payment by purchasing a Nontransferable AnnUIty from an insurance company With the value of the Nonforfeitable Accrued Benefit of such Participant, provided that such Nontransferable Annuity satisfies the dIstribution reqUIrements of Section 6.02. 6 04 DISTRlBUTIONS UNDER DOMESTIC RELATIONS ORDERS. This Plan is generally not subject to Code Section 414(P) and corollary provisions of ERISA relating to qualified domestic relatIOns orders (as defined in Code Section 4l4(q)). However, the followmg proVISIOns shall apply' (a) EffectIve for all dissolution of mamage, legal separatIOn and declaratIOn of mvalIdlty of marriage actions in which the court pnor to January 1, 1997 entered a final property dIviSIOn order concerning the diVision of a Participant's Accrued Benefit hereunder, the Board shall be permitted to comply WIth the provisions of such property diviSIOn order if, and only if, such order IS an assignment for child support purposes only, as allowed by and proVided for under Plan SectIOn 8.05. (b) Effective for causes of actIOn for dissolutIOn of mamage, legal separatIOn or declaration of invalidity of marriage filed on or after January l, 1997, and for all dissolution of marriage, legal separation or declaration of invalidity of marriage actIOns filed prior to January l, 1997, in which the court did not enter a final property diviSIOn order concernmg the dIvision of a 32 Participant's Accrued Benefit hereunder pnor to January 1, 1997, the Board shall comply With a properly executed court order approving a written agreement entered mto pursuant to CRS SectIon 14-10-113(6), concernmg the diVISion of a PartiCipant's Accrued Benefit under the Plan, all III accordance with and to the extent reqUIred under the prOVISIOns of CRS SectIon l4-l 0-ll3( 6). In accordance with the proVisions of CRS Section 14-10-113(6), the Board may adopt, modIfy and revoke from tIme to time rules or procedures governing the Implementation of this SectIOn 6.04(b). Any such rules or procedures Implementmg tills SectIon 6.04(b) may include, but are not lImited to (i) a requirement that, m order for the parties' agreement concernmg the diVISIOn of a PartIcipant's Accrued Benefit under the Plan to be effectIve, a standardized form adopted by the Board must be used by the parties and the court; (ii) the timing and method of payment to the alternate payee under such court order of a Participant's Accrued Benefit under the Plan; and (iii) any other proviSIOns that are consistent With the proviSIOns ofCRS Section l4-1O-113(6). (c) To the extent the provisions relating to domestic relations orders described herebefore in this Section 6.04 are modified or repealed by applIcable Colorado law, then the proVIsions of this Section 6.04 shall be deemed modified or repealed m accordance therewith. 6.05 DIRECT ROLLOVER. (a) ElectIOn. This Section 6.05 applies to distributions made on or after January 1, 1993. Notwithstandmg any provision of the Plan to the contrary that would otherwIse lImit a distributee's election under this ARTICLE VI, a distributee may elect, at the time and m the manner prescribed by the Board, to have any portion of an elIgible rollover dIstributIOn paid directly to an elIgible retIrement plan speCified by the distributee III a direct rollover Not earlier than nmety (90) days, but not later than thirty (30) days, before the Board directs the Trustees' distribution of an elIgible rollover distributIon, the Board must provide a written notice (or a summary notice as permitted under Treasury regulatIOns) to a dIstributee the rollover option ("rollover notIce"). The rollover notice must explain, among other mformation required by the applicable provisions of the Code and regulations, the rollover option, the optional forms of benefit m the Plan, including the material features and relative values of those options, the provisions under which the distributee may have a distributIOn directly transferred to another eligible retIrement plan, and the provisions which reqUIre the wlthholdmg of tax on the distribution If it is not dIrectly transferred to another elIgible retirement plan. A distributee may also elect to receive distribution as of any admimstratively practicable time (as determined in the sole discretIon of the Board) which is earlier than thirty (30) days following such distributee's receipt of the rollover notice by such distributee executing a Waiver in writing of the remamder of such thirty (30) day penod and delIvenng such written waiver to the Board. (b) Definitions. For purposes of this SectIon 6.05, the followmg definitions shall apply: (l) ElIgible Rollover Distribution. An elIgible rollover distribution is any distribution of all or any portion of the balance to the credit of the distributee, except that an 33 eligible rollover distribution does not mclude (i) any distributIon that IS one of a senes of substantIally equal penodlc payments (not less frequently than annually) made for the life (or life expectancy) of the distributee or the Jomt lives (or Jomt life expectancies) of the dIstributee and the distributee's deSignated beneficiary, or for a specified penod of ten years or more, (11) any dIstributIon to the extent such distribution is required under sectIOn 40l(a)(9) of the Code (Ill) the portIOn of any distributIOn that IS not includible m gross mcome (determmed Without regard to the exclUSIOn for net unrealized appreciation with respect to employer securitIes), (IV) any hardshIp distributIon made after December 31, 1998, from a PartiCIpant' deferral contributIOns Account, if any (except where the Participant also satisfies a non-hardship dIstributIOn event described in the applicable provisions of the Code, regulatIons and IRS rulIngs or other such promulgatIons. (2) Ehgible Retirement Plan. An elIgible retirement plan IS an indIVIdual retirement account described in section 408(a) of the Code, an individual retirement annuity described in sectIon 408(b) of the Code, an annUIty plan described m sectIOn 403(a) of the Code, or a qualified trust described in section 401(a) of the Code, that accepts the distributee's elIgible rollover distribution. However, m the case of an ehgible rollover distribution to the Participant's survivmg spouse, an eligible retirement plan is an IndIVIdual retIrement account or mdividual retirement annuity. (3) Distributee. A distributee mcludes a Participant or fonner Participant. In additIOn, the Participant's or former Participant's surviVIng spouse and the PartICipant's or former PartiCipant's spouse or former spouse who is the alternate payee under a qualified domestic relations order, as defined in sectIon 4l4(P) of the Code or apphcable proviSIOns of CRS, are dlstributees With regard to the mterest of the spouse or former spouse. (4) Direct Rollover. A direct rollover IS a payment by the Plan to the eligible retIrement plan specified by the distributee. (5) Default Rollover The Board in the case of a distributee who does not respond tImely to the notice described in SectIon 6.05(a) may make a dIrect rollover of the Participant's Nonforfeitable Accrued Benefit to which the distributee IS entitled (In the manner and subject to the procedures of IRS Revenue Ruling 2000-36 or m any successor law or gUIdance) m lieu of dlstributmg such NonforfeItable Accrued Benefit to the dtstributee. 34 ARTICLE VII EMPLOYER ADMINISTRATIVE PROVISIONS 70l INFORMATION TO BOARD The Employer will make available current Information to the Board as to the name, date of buth, date of employment, annual compensatIOn, leaves of absence, Vestmg Years of Service and date of termmatIon of employment of each Employee who IS, or who will be ehgible to become, a Participant under the Plan, together wIth any other mformation which the Board reasonably considers necessary. The Employer's records as to the current mformatIon the Employer makes available to the Board shall be conclusive as to all persons. 7.02 INDEMNITY OF BOARD AND TRUSTEES. Subject to any hmltatIons under apphcable law, the Plan and Trust indemnifies and saves harmless the Trustees, the Plan AdmInistrator and the members of the Board, and each of them, from and agaInst any and all loss resultIng from liability to which the Trustees, the Plan Admlrustrator and the Board, or the members of the Board, may be subjected by reason of any act or conduct (except willful misconduct or gross neghgence) in their official capacitIes in the admirustratIon of this Trust or Plan or both, IncludIng all expenses reasonably incurred in their defense. The Indemnification proVIsions of thIS SectIon 7.02 shall not reheve the Trustees, the Plan Administrator or any Board member from any habihty they may have for breach of a fiduciary duty. 3S ARTICLE VIII PARTICIPANT ADMINISTRATIVE PROVISIONS 8.0l BENEFICIARY DESIGNATION. Any ParticIpant may from tIme to tIme desIgnate, in writmg, any person or persons, includmg a trust or other entIty, contmgently or successIvely, to whom the Trustees shall pay his or her Nonforfeitable Accrued Benefit (Includmg any hfe Insurance proceeds payable to the Participant's Account) on event of hIS or her death. The Board shall prescribe the form for the written deSignatIon of BenefiCIary and, upon the PartIcipant's filing the form with the Board, It effectively shall revoke all deSignations filed pnor to that date by the same Participant. 8.02 NO BENEFICIARY DESIGNATION. If a PartICipant fails to name a BenefiCIary In accordance with Section 8.01, or if the BenefiCiary named by a PartICipant predeceases hIm, then the Trustees shall pay the Participant's Nonforfeitable Accrued Benefit m accordance WIth ARTICLE VI m the following order ofpnonty to. (a) The Participant's survivmg spouse; (b) The Participant's survlvmg children, including adopted children, In equal shares, (c) The Participant's surviving parents, in equal shares; or (d) The PartiCipant's estate. If the BenefiCiary does not predecease the PartiCipant, but dies prior to distributIon of the PartiCipant's entIre Non-forfeitable Accrued Benefit, the Trustees Will pay the remammg Nonforfeitable Accrued Benefit to the BenefiCiary's estate unless the PartiCipant's beneficiary deSIgnatIOn provides othelWise. The Board shall direct the Trustees as to the method and to whom the Trustees shall make payment under this SectIOn 8.02. 8.03 PERSONAL DATA TO BOARD Each Participant and each Beneficiary of a deceased Participant must furnish to the Board such evidence, data or mformation as the Board considers necessary or deSIrable for the purpose of admmistenng the Plan. The proVISIons of thIS Plan are effectIve for the benefit of each Participant upon the conditIOn precedent that each PartICipant will furmsh promptly full, true and complete evidence, data and mformation when requested by the Board, provided the Board shall advise each PartiCipant of the effect of hIS or her failure to comply with ItS request. 8.04 ADDRESS FOR NOTIFICATION Each PartiCipant and each Beneficiary of a deceased Participant shall file with the Board from tIme to tIme, in wntmg, his or her post office address and any change of post office address. Any communication, statement or notIce addressed to a PartiCipant, or Beneficiary, at his or her last post office address filed with the Board, or as shown on the records of the Employer, shall bind the Participant, or BenefiCiary, for all purposes of 36 tills Plan. 8.05 ASSIGNMENT OR ALIENATION. Except for assignments for child support purposes as provided for m CRS, Sections 14-10-118(1) and 14-14-l 07, as they eXisted pnor to July l, 1996, except for mcome assignments for child support purposes pursuant to CRS SectIon l4-l4- 111.5, except for writs of garnishment which are the result of a judgment taken for arrearages for child support or for child support debt, and except for payments made m complIance with a properly executed court order approving a written agreement entered mto pursuant to CRS SectIon 14-10-113(6), as set forth in SectIon 6.04 of the Plan, neither a PartiCipant nor a BenefiCIary shall antIcipate, assign or ahenate (either at law or in equity) any benefit proVIded under the Plan, and no part of the Trust Fund, or any benefit hereunder, either before or after any order for dIstribution thereof to a PartiCipant, a Beneficiary, a Participant's survlvmg spouse or parent, or a guardIan or personal representatIve of a mmor child of a deceased Participant, shall be held, seized, taken, subjected to, detained, or levied on, whether by virtue of any attachment, executIon, protest or proceeding of any nature whatsoever, issued out of or by any court in the State of Colorado or any other Junsdictlon, for payment or satisfaction, in whole or in part, of any debt, damages, claim, demand, Judgment, fine or amercement of such Participant, BenefiCIary, survivmg spouse, parent, or mmor child. The Trust Fund shall be kept, secured and distributed only for the purposes of penslOnmg and protectmg Participants and their Beneficiaries and for no other purposes whatsoever To the extent the provisions relating to anticipation, aSSignment, or ahenatIOn of benefits under the Plan described herebefore m this Section 8.05 are modIfied or repealed by applicable Colorado law, then the proVisions of tills Section 8.05 shall be deemed modified or repealed m accordance therewith. 8.06 NOTICE OF CHANGE IN TERMS. The Plan Administrator, wlthm a reasonable tIme, shall furrush all PartiCIpants and BenefiCiaries a summary descriptIOn of any material amendment to the Plan. 8.07 LITIGATION AGAINST THE TRUST. A court of competent Junsdlction may authorize any appropriate equitable relief to redress VIOlations of applicable law as respects this Plan or its administration or to enforce any proVisions of such law or the terms of the Plan. A fiduciary may receive reimbursement of expenses properly and actually incurred m the performance of his or her duties with the Plan. 8.08 INFORMATION AVAILABLE. Any Participant in the Plan or any Beneficiary may examine copies of the Plan description, latest financial reports, this Plan and Trust, contract or any other mstrument under which the Plan was established or is operated. The Plan Administrator will maintain all of the items listed m this Section 8.08 in its office, or m such other place or places as the Plan Administrator may designate from time to time for examination dunng reasonable business hours. Upon the written request of a PartIcipant or Beneficiary the Plan Admmistrator shall furrush him or her with a copy of any item listed in this Section 8.08. The Plan Administrator may make a reasonable charge to the requestmg person for the copy so furnished. 8.09 APPEAL PROCEDURE FOR DENIAL OF BENEFITS. A Participant or a Beneficiary ("Claimant") may file with the Board a written claim for benefits, if the Participant or 37 Beneficiary determines the distribution procedures of the Plan have not provided hIm or her his or her proper Nonforfeitable Accrued Benefit. The Board must render a decisIOn on the claim wlthm 60 days of the Claimant's wntten claIm for benefits. The Board must provide adequate notIce m wntmg to any ClaImant whose claim for benefits under the Plan the Board has demed. The Board's notIce to the ClaImant shall set forth: (a) The specific reason for the derual; (b) Specific references to pertinent Plan prOVIsions on which the Board based ItS demal, (c) A description of any additIOnal material and mformation needed for the Claimant to perfect his or her claIm and an explanatIon of why the matenal or mformatlOn IS needed,and (d) That any appeal the Claimant wishes to make of the adverse determmatlon must be m wntmg to the Board within seventy-five (75) days after receIpt of the Board's notIce of demal of benefits. The Board's notice must further advise the Claimant that hiS or her failure to appeal the actIOn to the Board m wntmg withm the seventy-five (75) day penod will render the Board's determinatIOn final, bmding and conclusive. Appeals from Board determmatlons shall be m accordance With procedures adopted from time to time by the Board. The Board may, m its sole discretIOn, appoint a heanng officer to conduct any necessary eVIdentIary hearing into the facts of the appeal and to make recommendations to said Board. The Board's notIce of denial of benefits shall identify the name of each member of the Board and the name and address of the Board member to whom the ClaImant may forward hIS or her appeal. The provisions of this Section 8.09 shall not be in conflIct with any constitutIOnal and due process nghts of any affected PartiCipant or BenefiCiary, and to the extent of any such conflict, the proVisions of this Section 8.09 shall be amended or superseded to avoid such confliCt. 8.10 PARTICIPANT DIRECTION OF INVESTMENT. A Participant's dIrectIon of the Investment of his or her Account is subject to the proviSIOns of this Section 8.l0 For purposes of this Section 8.10, a "PartiCipant" (as used in thiS Section 8.10) shall also mclude a BenefiCIary if the Beneficiary has succeeded to the Participant's Account, and If the Plan and/or the Board, m their discretion, afford the Beneficiary the same self-direction as a Participant. (a) Board Authonzation and Procedures. A PartiCipant has the right to direct the Board with respect to the investment or re-mvestment of the assets comprising the Participant's individual Account(s) only if the Board consents m writing to permit such direction. If the Board consents to Participant directIOn of investment, the Board will only accept direction from each Participant on a written direction of investment form the Board or the Plan service provider proVide for this purpose. The Board, or with the Board's consent, the Plan service prOVider, may establish written procedures relating to Participant direction of investment under 38 this Section 8.1 0, mc1uding procedures or conditions for electronIc transfers or for changes in mvestments by Participants. The Board will maintain, or direct the Plan service provider to mamtam, appropnate mdlVldual investment Account(s) to the extent a Participant's Account(s) are subject to Participant self-directIOn. (b) Fiduciary Exculpation. To the fullest extent permitted by applicable law, no Plan fiduciary (including the Employer, Board, Plan Administator and Trustees) is liable for any loss or for any breach resulting from a Participant's direction of the investment of any part of hiS or her self-directed Account(s) to the extent the Participant's exercise of hiS or her nght to direct the mvestment of his or her Account(s) satisfies the requirements of applicable law 39 ARTICLE IX BOARD - DUTIES WITH RESPECT TO PARTICIPANTS' ACCOUNTS 9.01 MEMBERSHIP COMPENSATION, EXPENSES The followmg provIsIons shall apply wIth respect to the Board. (a) Plan Admlillstrator The Board shall be the Plan Admmlstrator (b) Membership. (l) PnorTo Januarv L 2006. Pnor to January l, 2006, the Board shall be made up of six (6) individual voting members who shall be: (i) Two (2) current Participants who are sworn pohce officers of the Employer; (ii) The Mayor of the Employer; (iii) The Chief of Police of the Employer; (iv) The Treasurer of the Employer; and (v) The City Clerk of the Employer. (2) On and After Januarv L 2006. On and after January l, 2006, the Board shall be made up of seven (7) mdividual votmg members who shall be: (i) Three (3) current PartIcipants who are sworn polIce officers of the Employer; (ii) The Mayor of the Employer; (ili) The Chief of Police of the Employer; (iv) The Treasurer of the Employer; and (v) The City Clerk of the Employer. (c) Election. The City Clerk of the Employer shall conduct an election dunng November of each calendar year for the election of the one (l) police officer PartiCIpant member of the Board whose term expires that year. The Board members who are police officer PartiCipants shall be elected by plurality vote of the current Participants who participate in such vote. 40 (d) ResIgnatIon. Any polIce officer PartIcipant member of the Board may resIgn by delivering his or her written resignatIOn to the Employer and the other members of the Board. Any such reSignatIOn of a member of the Board shall be effectIve tIurty (30) days after wntten notIce thereof has been delIvered as reqUIred herembefore, unless otherwIse agreed to by the other members of the Board. Any police officer Participant member of the Board shall cease to be a member of the Board immediately upon termmation of Ius or her employment as a polIce officer with the Employer. Any Board member who is a Board member by vIrtue of hiS or her posItIon with the Employer shall be deemed to have reSigned from the Board on the date the person ceases to act m such capacity. The person who shall be appointed in such person's place by the Employer shall Immediately become a Board member. (e) Removal. Members of the Board who are police officer PartIcipants may be removed, with or without cause, by majority vote of the current Participants. Written notice of any such removal shall be delIvered to any such removed member, to the other members of the Board and to the Employer Any removal of any polIce officer Participant member of the Board shall be effectIve thirty (30) days after written notice thereof has been delivered as reqUIred herembefore. (f) Vacancies. Any vacancy on the Board arismg as a result of the resignatIon, removal, death or otherwise of a police officer Participant member shall be filled by appomtment by the remammg Board members of another police officer Participant. Such appomtment shall be made within sixty (60) days from the date of the vacancy. (g) Trustee hereunder. Board Members Also Trustees. Each member of the Board shall also be a (h) CompensatIOn and Expenses. The members of the Board shall serve without compensatIon for services rendered as a Board member, unless authorized by majority vote of the members of the Board. Any compensation for services IS to be made from the Trust Fund. Each Board member shall be reimbursed by the Trustee from the Trust Fund for any expenses he or she 'may properly incur m connection with the performance of hiS or her duties as a member of the Board. (i) Bond. Every member of the Board shall be bonded if reqUIred by applIcable law, or as they deem appropriate, and the costs of such bond will be paid by the Trustee from the Trust Fund. 9 02 TERM. (a) Participant Members' Terms Prior to January l. 2006. Each member of the Board who is elected by the current Participants prior to January l, 2006 shall serve for staggered two (2) year terms or until the appointment of Ius or her successor. (b) Participant Members' Terms On and After January 1. 2006. Each member of the Board who is elected by the current Participants on or after January l, 2006 shall serve for staggered three (3) year terms or until the appomtment of Ius or her successor. 41 (c) DetermmatIOn of Staggered Terms. The Board shall establIsh, and may modify, from time to time, rules and procedures to establIsh the staggered terms referred to above III this SectIOn 9.02 of the Participant members of the Board. 9.03 POWERS. In case of a vacancy in the membershIp of the Board, the remamlllg members of the Board may exercise any and all of the powers, authonty, dutIes and dIscretIOn conferred upon the Board pendmg the fillIng of the vacancy 9.04 GENERAL. The Board shall have the followmg powers and dutIes: (a) To select such officers as it deems necessary, who need not be members of the Board, (b) To determme the rights of elIgibility of an Employee to partIcIpate III the Plan and the value of a PartiCipant's Accrued Benefit; (c) To adopt by-laws, rules of procedure and regulations necessary for the proper and effiCient administratIOn of the Plan proVided the rules are not inconsistent with the terms of thiS Agreement; (d) To construe and enforce the terms of the Plan and the by-laws, rules and regulations It adopts, includmg interpretatIon of the Plan documents and documents related to the Plan's operation; (e) To direct the Trustees as respects the crediting and distribution of the Trust; (t) To review and render decisIOns respectmg a claim for (or demal of a claIm for) a benefit under the Plan; (g) To furmsh the Employer with information which the Employer may reqUIre for tax or other purposes, (h) To engage the service of agents whom It may deem adVIsable to assist It with the performance of its duties; (i) To engage the services of an Investment Manager or Managers (as defined III Act SectIon 3(38)), each of whom shall have full power and authonty to manage, acquire or dispose (or direct the Trustees with respect to acquIsItIon or dispOSition) of any Plan asset under ItS control, and U) To establish and mamtam a fundmg standard account and to make credits and charges to the account to the extent reqUIred by and in accordance with the proviSIOns of the Code. The Board shall exercise all of its powers, duties and discretion under the Plan in a uniform and nondiscriminatory manner. 42 9.05 FUNDING POLICY. The Board shall reView, not less often than annually, all pertment Employee mfonnation and Plan data in order to establIsh the fundmg policy of the Plan and to detennme the appropnate methods of carrying out the Plan's objectIves. The Board shall commUnIcate penodlcally, as It deems appropnate, to the Trustees and to any Plan Investment Manager the Plan's short-term and long-term financial needs so mvestment pohcy can be coordmated with Plan financial requirements. 9.06 MANNER OF ACTION. Any action or decisIOn of the Board shall be decided by majority vote of the members of the Board then appointed and qualified. 9 07 AUTHORIZED REPRESENT A TNE. The Board may authonze anyone (I) of Its members, or Its PreSIdent or Secretary, to sign on its behalf any notices, dIrectIons, applications, certificates, consents, approvals, waivers, letters or other documents. The Board must eVIdence thIS authonty by an instrument signed by all members. 9 08 INTERESTED MEMBER. No member of the Board may decide or determme any matter concemmg the distribution, nature or method of settlement of hiS or her own benefits under the Plan, except m exercising an election available to that member in hiS or her capacity as a PartIcipant. 9 09 INDIVIDUAL ACCOUNTS. The Board will establish and mamtain an individual Account or multiple Accounts in the name of each Participant as of the date a contributIon IS first made to the Trust Fund on his or her behalf to reflect the Participant's Accrued Benefit under the Plan. An Employer Contributions Account will be so established and mamtamed for each Participant to record his or her interest in the Trust Fund attributable to his or her share of Employer ContributIOns and Forfeitures. A PartiCipant Mandatory Contributions Account Will be so established and maintamed for each Employee to record his or her interest In the Trust Fund attributable to his or her Participant Mandatory ContributIOns made to the Trust Fund pursuant to SectIOn 4 Ol A Participant Voluntary ContributIons Account will be so estabhshed and maintained for each Employee to record his or her interest m the Trust Fund attributable to hiS or her Participant Voluntary ContributIons made to the Trust Fund pursuant to Section 4.02. A PartiCipant Rollover ContributIOns account will be so estabhshed and maIntaIned for each Employee to record ills or her interest m the Trust Fund attributable to his or her Participant Rollover Contributions made to the Trust Fund pursuant to SectIon 4.04 The Trustees will not be reqUIred, however, to segregate Trust Fund assets because of the mamtenance of separate Accounts, unless reqUIred or pennltted under another provision of the Plan. The Board will make ItS allocations, or request the Trustees to make their allocations, to the Accounts of the Participants in accordance with the proviSIOns of Section 9.11. The Board may direct the Trustees to maintaIn a temporary segregated investment Account In the name of a Participant to prevent a distortion of income, gain or loss allocations under Section 9 .l1. The Board shall mamtam records of its activities. 9.10 VALUE OF PARTICIPANT'S ACCRUED BENEFIT. If any or all Plan Investment accounts are pooled, each Participant's Account(s) has an undivided mterest in the assets compnsing the pooled account. In a pooled account, the value of each Participant's Accrued Benefit consists of that proportIOn of the net worth (at fair market value) of the Trust 43 Fund which the net credit balance m his or her Account(s) (exclusive of the cash value of incidental benefit msurance contracts) bears to the total net credit balance In the Accounts (exclusive of the cash value of the Incidental benefit Insurance contracts) of all PartIcipants, plus the cash surrender value of any mCldental benefit msurance contracts held by the Trustees on the PartIcipant's lIfe. If any or all Plan investment accounts are Participant dIrected, the dlrectmg PartIcipant's Accrued Benefit is comprised of the assets held within such Participant's Account(s) and the value of such Participant's Account(s) IS the fair market value of such assets. For purposes of a distributIon under the Plan, the value of a Participant's Accrued Benefit is Its value as of the valuatIOn date immediately preceding the date of the distributIon. 9.ll ALLOCATION AND DISTRIBUTION OF NET INCOME. GAIN OR LOSS ThiS Section 9 II applIes solely to the allocation of net income, gam or loss of the Trust Fund. The Board will allocate Participant Mandatory, Voluntary and Rollover ContributIOns In accordance with the applIcable provisions of ARTICLE IV and Employer ContributIons and Forfeitures in accordance with the applIcable proviSIOns of ARTICLE Ill. (a) ValuatIon Date. A "valuation date" under thiS Plan IS each Accountmg Date and any other valuation date the Board elects. The Board may elect alternatIve valuatIOn dates for the different Account types which the Board maintams under the Plan. As of each valuatIon date, the Board must adjust Accounts to reflect net mcome, gam or loss smce the last valuatIOn date. The valuatIon period is the period begInning on the day after the last valuatIon date and endIng on the current valuatIOn date. (b) Methods of AllocatIon. The Board will allocate net income, gam or loss to the PartiCipant Accounts m accordance With the daIly valuatIOn method, balance forward method, weIghted average method, or other method the Board elects from time to tIme. The Board may elect alternative methods of allocation under which the Board will allocate the net Income, gaIn or loss to the different Account types which the Board maintams under the Plan. If the Board elects to apply a weighted average allocation method, the Board will treat a weIghted portion of the applIcable contributIons as If includible m the PartiCipant's Account as of the beginnIng of the valuatIon penod. The weighted portion IS a fractIon, the numerator of whIch is the number of months in the valuation period, excludmg each month m the valuatIOn penod which begins prior to the contributIOn date of the applicable contributions, and the denommator of which IS the number of months m the valuation penod. The Board may elect to substItute a weightIng penod other than months for purposes of thiS weighted average al1ocation. If the Board elects to apply the daily valuatIon method, the Board will allocate the net Income, gam or loss on each day of the Plan Year for which Plan assets are valued on an established market. If the Board elects to apply the balance forward method, the Board first will adjust the PartICipant Accounts, as those Accounts stood at the beginning of the current valuatIon period, by reducing the Accounts for any forfeitures ansing under the Plan, for amounts charged dunng the valuation penod to the Accounts m accordance with Section 9.13 (relatmg to distributions) and for msurance premiums and for the cash value of incidental benefit msurance contracts, if applIcable to the Accounts. The Board then, subject to the restoratIOn allocatIOn requirements of the Plan, will allocate the net income, gain or loss pro rata to the adjusted PartiCipant Accounts. The allocable net income, gain 44 or loss IS the net mcome (or net loss), including the increase or decrease in the fair market value of assets, smce the last valuation date. (c) Trust Fund (Pooled) Investment Accounts. A pooled investment account IS an Account which is not a segregated mvestment Account or an mdlvidual Investment Account. (d) Segregated Investment Accounts. A segregated investment Account receIVes all income it earns and bears all expense or loss it incurs. The Board may establish for a Participant a segregated investment Account(s) to prevent a distortion of Plan income, gain or loss allocatIOns or for such other purposes as the Board may direct. The Board Will mvest the assets of a segregated investment Account(s) consistent with such purposes. As of each valuatIOn date, the Board must reduce a segregated Account(s) for any forfeiture arising under Section 5.05 after the Board have made all other allocations, changes or adjustments to the Account(s) for the valuation period. (e) Individual (Directed) Investment Accounts. An mdividual mvestment Account IS an Account which is subject to Participant or (if permitted) Beneficiary self-dIrectIOn under Section 8.l0. An individual investment Account receives all income it earns and bears all expense or loss it incurs. As of each valuation date, the Board must reduce an indiVidual Account for any forfeiture ansing from Section 5.05 after the Board has made all other allocations, changes or adjustment to the Account for the valuation period. (t) Code ~4l5 Excess Amounts. An Excess Amount or suspense account described in ARTICLE III does not share in the allocation of net income, gam or loss described m this Section 9.11. 9 l2 INDIVIDUAL STATEMENT. As soon as practicable after the Accountmg Date of each Plan Year, the Plan Administrator wiU deliver to each Participant (and to each Beneficiary) a statement reflecting the condition of his or her Accrued Benefit in the Trust as of that date and such other mformatIOn the Plan Admlmstrator deems appropnate. No Participant, except a member of the Board, shall have the nght to inspect the records reflecting the Account of any other Participant. The Board may, but shall not be required to, provide PartiCipants With the statement referred to herebefore in thiS Section 9 12 more frequently than annually. 9.13 ACCOUNT CHARGED. The Board shall charge a Participant's Account(s) for all distributIOns made from that Account to the Participant or to his or her Beneficiary. The Board also will charge a Participant's Account(s) for any admimstration expenses incurred by the Plan or Trust directly related to that Account. 9.14 LOST PARTICIPANTS. If the Board is unable to locate any Participant or Beneficiary whose Account becomes distributable under Article VI (a "lost PartiCipant"), the Board will apply the proviSIOns of this Section 9.l4 (a) Attempt to Locate. The Board will use one or more of the following methods to attempt to locate a lost Participant: (I) provide a distribution notice to the lost Participant at his or her last known address by certified or registered mail; (2) use of the IRS letter forwardmg program under Revenue Procedure 94-22 (or similar or successor guideline); 45 (3) use of a commercial locator service, the mterest or other general search method, or (4) use of the Social Secunty AdmlfilstratIon search program. (b) Failure to Locate, If a lost Participant remams unlocated for one (I) year following the date of the Board's first attempts to locate the lost PartiCIpant usmg one or more of the methods described in Section 9.l4(a), the Board may forfeit the lost PartiCIpant's Account at any tIme after the above-described one (l) year period. If the Board so forfeits the lost PartiCipant's Account, the forfeiture occurs as of the date the Board makes such forfeiture, and the Board Will allocate the forfeiture m accordance With Section 3.03. If a lost PartiCipant whose Account was forfeited thereafter at any time, but before the Plan has been terminated, makes a claIm for hiS or her forfeited Account, the Board will restore the forfeited Account to the same dollar amount as the amount forfeited, unadjusted for net mcome, gams or losses occurnng subsequent to the forfeiture. The Board will make the restoratIOn in the Plan Year in whIch the lost PartiCIpant makes the claim, first from the amount, if any, of PartiCipant forfeitures the Board otherwise would allocate for the Plan Year, then from the amount or addItIOnal amount the Employer contributes to the Plan for the Plan Year. The Board will dIstribute the restored Account to the lost Participant not later than sixty (60) days after the close of the Plan Year m which the Board restores the forfeIted Account. If the Board forfeits a lost PartIcIpant's Account under thIS SectIon 9.l4(b), such forfeIture will be of the entire Account of the lost PartiCipant, mcludmg any and all Participant contributIOns. (c) Nonexcluslvlty and Uniformity The proVISIOns of SectIOn 9 l4 are mtended to provide permissible, but not exclusive, means for the Board to admInister the Accounts of lost PartICipants. The Board may utilize any other reasonable method to locate lost PartIcipants and to admimster the Accounts of lost PartiCipants, mcluding the default rollover under Section 6.05(b)(5) and such other methods as the Revenue Service or the US. Department of Labor ("DOL") may in the future specify The Board will apply SectIon 9.l4 In a reasonable, uniform and nondiscnmmatory manner, but may in determmmg a speCIfic course of action as to a partIcular Account, reasonably take into account diffenng cIrcumstances such as the amount of a lost PartiCipant's Account, the expense m attempting to locate a lost Participant, the Board's abilIty to establish and the expense of establishmg a rollover IRA, and other factors deemed relevant under the circumstances of each case. The Board may charge to the Account of a lost Participant the reasonable expenses incurred by the Trust Fund under this Section 9 .l4 and whIch are aSSOCIated with the lost PartiCIpant's Account. 9.l5 PLAN CORRECTION. The Board m conjunctIOn With the Employer may undertake such correction of Plan errors as the Board deems necessary, mcludmg correctIOn to preserve tax qualification of the Plan under Code ~401 (a) or to correct a fiduciary breach under applIcable law. Without lImiting the Board's authonty under the pnor sentence, the Board, as It detennInes to be reasonable and appropriate, may undertake correctIon of Plan document, operational, demographic and Employer elIgibilIty failures under a method described m the Plan or under the Employee Plans Compliance Resolution System ("EPCRS") or any successor program(s) to EPCRS. The Board, as it determmes to be reasonable and appropriate, also may undertake or assist the appropriate fiduciary or plan official in undertaking correction of a fiduciary breach. If the Plan includes a 40 1 (k) arrangement, the Board to correct an operatIonal error, may require distributIOns from the Plan of elective deferrals or vested matchmg contributions, including eammgs, where such amounts result from an operational error other than 46 a failure of Code ~4l5, Code ~402(g), a failure of the ADP or ACP tests, or a failure of the multIple use ltmitatIon. A contributIon made by the Employer may be returned to the Employer If the contributIon is made by reason of a mistake of fact or if the contribution IS nondeductible. The amount that may be returned to the Employer is the excess of (i) the amount contributed over (ii) the amount that would have been contributed had there not occurred a mistake of fact. The return to the Employer of the amount mvolved must be made withm one year of the mistaken payment of the contributIon or disallowance of the deduction as the case may be. 47 ARTICLE X TRUSTEES, POWERS AND DUTIES 10.01 ACCEPTANCE. The Trustees accept the Trust created under the Plan and agree to perform the obligatIOns Imposed. The Trustees shall provIde bond for the faIthful performance of their dutIes under the Trust to the extent required by applicable law or as the Trustees deem appropnate. lO.02 RECEIPT OF CONTRIBUTIONS. The Trustees shall be accountable to the Employer for the funds contributed to the Trustees by the Employer. lO.03 INVESTMENT POWERS. (a) Except as provided in SectIOn 1O.03(b), the Trustees shall have full discretion and authority with regard to the mvestment of the Trust Fund, except WIth respect to a Plan asset under the control or direction of a properly appomted Investment Manager or With respect to a Plan asset subject to Employer or Participant direction of investment. The Trustees shall coordmate their investment pohcy with Plan financial needs as communicated to them by the Board. The Trustees are authonzed and empowered, subject to the proviSIOns of Section 10.03(b), with the following powers, nghts and dutIes: (1) To mvest any part or all of the Trust Fund in any common or preferred stocks, open-end or closed-end mutual funds, repurchase agreements, Umted States retIrement plan bonds, corporate and muniCipal bonds, debentures, convertible debentures, commercial paper, U.S Treasury bills, U.S. Treasury notes, U.S. Treasury bonds and other dIrect or mdlrect obhgations of the United States Govemment or its agencies, improved or ummproved real estate situated in the Umted States, bmited partnershIps, msurance contracts of any type, mortgages, notes or other property of any kmd, real or personal, and to buy or sell optIons on common stock on a nationally recogmzed exchange with or without holdmg the underlymg common stock, as a prudent man would do under like circumstances with due regard for the purposes of thIS Plan. Any mvestment made or retained by the Trustees in good faith shall be proper but must be of a kmd constItuting a diversificatIOn conSidered by law SUItable for trust investments; (2) To retam in cash so much of the Trust Fund as it may deem advisable to satIsfy bquidity needs of the Plan and to deposit any cash held m the Trust Fund m a bank account at reasonable mterest, including, if a bank IS actmg as Trustees, speCIfic authonty to mvest in any type of deposit of the Trustees at a reasonable rate of interest or in a common trust fund (the proVisions of which govern the mvestment of such assets and which the Plan incorporates by this reference) as described in Code Section 584 which the Trustees (or an affihate of the Trustees, as defined in Code Section 1504) mamtains exclusively for the collectIve mvestment of money contributed by the bank (or the affibate) m its capacity as trustee and which conforms to the rules of the Comptroller of the Currency; (3) To manage, sell, contract to sell, grant options to purchase, convey, exchange, transfer, abandon, improve, repair, insure, lease for any term even though commencing in the future or extending beyond the term of the Trust, and otherwise deal with all property, real or 48 personal, m such manner, for such considerations and on such terms and conditIOns as the Trustees shall decide; (4) To credit and distribute the Trust as directed by the Board. The Trustees shall not be obliged to inquire as to whether any payee or distributee IS entItled to any payment or whether the distribution is proper or within the terms of the Plan, or as to the manner of making any payment or distribution. The Trustees shall be accountable only to the Board for any payment or distribution made by it in good faith on the order or direction of the Board" (5) To extend mortgages; (6) To compromise, contest, arbitrate or abandon claims and demands, m the discretion of the Trustees; (7) To have with respect to the Trust all of the nghts of an mdlVidual owner, mcludmg the power to give proXies, to participate in any votmg trusts, mergers, consolidations or liquidations, and to exercise or sell stock subscriptions or converSIOn nghts, (8) To lease for oil, gas and other mineral purposes and to create mineral severance by grant or reservation; to pool or urutize interests in oil, gas and other mmerals; and to enter mto operatmg agreements and to execute division and transfer orders; (9) To hold any secunties or other property in the name of the Trustees or their nommee, with depositories or agent depositories or m another form as they may deem best, With or Without disclosmg the trust relationship; (10) To perform any and all other acts in the Judgment of the Trustees necessary or appropriate for the proper and advantageous management, mvestment and distributIOn of the Trust; (ll) To retain any funds or property subject to any dIspute Without lIabilIty for the payment of mterest, and to decline to make payment or delivery of the funds or property until final adjudication is made by a court of competent jurisdiction; (12) To file all tax returns required of the Trustees, (13) To furrush to the Employer, (specifically the City Manager, Finance Director and City Attorney) the Plan Admirustrator and the Board an annual statement (no later than July 1 of the succeeding year) of account showing the condition of the Trust Fund and all mvestments, receipts, disbursements, the source and amount of Forfeitures to the Employer and other transactions effected by the Trustees during the Plan Year covered by the statement and also statmg the assets of the Trust held at the end of the Plan Year, which accounts shall be conclusive on all persons, includmg the Employer, the Plan Administrator and the Board, except as to any act or transaction concerning which the Employer, the Plan Administrator or the Board files with the Trustees written exceptIOns or objections within ninety (90) days after the receipt of the accounts or for which applicable law authorizes a longer period within which to object; and 49 (14) To begIn, mamtaIn or defend any litIgatIOn necessary m connection with the admmlstratIon of the Plan, except that the Trustees sha1l not be oblIged or reqUIred to do so unless indemnified to their satIsfaction. (15) To make available to the Finance Director of the Employer, no later than May 31 of each year, an estImate of the cumulatIve available ForfeIture amounts for the Plan. In additIon, no later than November 30 of each year, the Trustees sha1l make available to the Finance Director of the Employer a copy of the most recent audit report of the Plan and Trust prepared through the means of an mdependent audit, which audit report shall mclude a statement of the available Forfeiture amount on an annual baSIS. (b) Anythmg contaIned herein to the contrary notwithstandmg, the followmg proVisions shall apply: (1) The proVisions of this SectIOn 1O.03(b)(l) shall be effectIve prior to July l, 1997. Anythmg contained herem to the contrary notwlthstandmg, the Trust Fund shall be invested by the Trustees; provided that, subject to the lImitations on investments described m the CRS, Section 15-1-304, as amended, the Trustees may mvest all or any part of the fund in the types of mvestments authonzed by CRS Sections l5-l-304, 31-30-10l2(5) and 3l-30-l Ol2(8), mcludmg, but not limited to, obhgatIons of the United States Government and in obligatIOns fully guaranteed as to prinCipal and interest by the United States Govemment, m state or mUniCipal bonds, in corporate notes, bonds, or debentures, convertible or otherwise, m railroad equipment trust certificates, in real property and m loans secured by first mortgages or deeds of trust on real property, in partiCipatIOn guarantee agreements with life insurance companies, in real estate limited partnerships, and In other types of mvestment agreements, and the foregomg mvestments may be made Without lImitation as to the percentage of the book value of the assets of the retIrement fund so invested. lnvestments may also be made m either common or preferred corporate stocks, but the origmal cost of a1l mvestments in corporate stocks or corporate bonds, notes, or debentures which are convertible into stock, or in mvestment trust shares, shall not exceed Sixty-five percent (65%) of the then book value of the assets of the Trust Fund. In no event shall any investment be made m the common or preferred stock, or both, of any single corporation in an amount In excess of five percent (5%) of the then book value of the assets of the Trust Fund nor shall more than seven percent (7%) of the outstandmg stock or bonds of any smgle corporation be acquired for the Trust Fund, except that the Trustees may acqUIre up to one hundred percent (100%) of the outstanding stock of any corporatIon described m Code SectIons 50 1 (c )(2) and 50 1 (c )(25). In accordance With the proVISIOns of CRS SectIOn 31- 30-l 0l2( 5), as used m thiS SectIOn lO 03(b)(l), unless the context otherwise reqUIres, (i) "book value" means current market value, (ii) "current market value" means the current exchange pnce of an asset that IS publIcly traded, and, for a nonpublicly traded asset, It means the current valuatIon as reflected in the books of the FPPA, and (ili) "original cost" means the acquiSition cost ofan asset. (2) The proVisions of thiS SectIon 10 03(b)(2) shall be effective on and after July l, 1997. Anything contained herein to the contrary notwithstanding, the Trust Fund shall be mvested by the Trustees; prOVided that, the Trust Fund shall be managed and Invested by the Trustees pursuant to the standard and other proVisions for trustees set forth in the Colorado Uniform Prudent lnvestor Act, Article 1 1 of Title l5, CRS. Such investments shall be audited at 50 least biennially. To the extent the Illvestment lImitatIons described herebefore m thiS Section lO.03(b)(2) are modified or repealed by applicable Colorado law, then the provisions of this SectIOn lO 03(b )(2) shall be deemed modified or repealed in accordance therewith. 10.04 RECORDS AND STATEMENTS. The records of the Trustees pertaming to the Plan shall be open to the inspection of the Plan Administrator, Board and the Employer at all reasonable times and may be audited from time to time by any person or persons as the Employer or Board may specify in writing. The Trustees shall furnish the Board or the Plan AdmInistrator WIth whatever informatIOn relatmg to the Trust Fund the Board or Plan Admimstrator considers necessary 10.05 FEES AND EXPENSES FROM FUND. The Trustees shall serve without compensatIon for services rendered as a Trustee, unless authonzed by majority vote of the Trustees if payment IS to be made from the Trust Fund. The Trustees shall pay all fees and expenses reasonably mcurred by them m their administratIOn of the Plan from the Trust Fund unless the Employer pays the fees and expenses. 10.06 PARTIES TO LITIGATION. Except as otherwise proVIded by applicable law, only the Employer, the Plan Admimstrator, the Board, and the Trustees shall be necessary partIes to any court proceedmg mvolving the Trustees or the Trust Fund. No Participant, or BenefiCIary, shall be entitled to any notice of process unless required by applicable law Any final Judgment entered m any proceedmg shall be conclUSive upon the Employer, the Plan Admimstrator, the Board, the Trustees, Participants and BeneficIanes. 1007 PROFESSIONAL AGENTS The Trustees may employ and pay from the Trust Fund reasonable compensation to agents, attorneys, accountants and other persons to advise the Trustees as In their opinion may be necessary. The Trustees may delegate to any agent, attorney, accountant or other person selected by the Trustees any non-Trustee power or duty vested in the Trustees by the Plan, and the Trustees may act or refraIn from actmg on the advice or opimon of any agent, attorney, accountant or other person so selected. 10.08 DISTRIBUTION OF CASH OR PROPERTY. The Trustees may make distribution under the Plan In cash or property, or partly In each, at its fair market value as determined by the Trustees. For purposes of a distributIon to a Participant or to a PartiCipant's deSignated Beneficiary or surviving spouse, "property" shall Include a nontransferable annuity contract, provided the contract satisfies the distribution requirements under Article VI. 10.09 DISTRIBUTION DIRECTIONS. If no one claims a payment or distribution made from the Trust, the Trustees shall promptly notify the Board and shall dispose of the payment in accordance with the subsequent direction of the Board. 10.10 THIRD PARTY. No person dealing with the Trustees shall be obligated to see to the proper application of any money paid or property delivered to the Trustees, or to inquire whether the Trustees have acted pursuant to any of the terms of the Plan. Each person dealing with the Trustees may act upon any notice, request or representation in writIng by the Trustees, or by the 51 Trustees' duly authonzed agent, and shall not be lIable to any person whomsoever m so domg. The certificate of the Trustees that they are actmg m accordance with the Plan shall be conclusive III favor of any person relying on the certificate. lO 1l RESIGNATION. The Trustees may resign at any time as Trustees of the Plan by glvmg thirty (30) days' wntten notIce in advance to the Employer and to the Board. 10.l2 REMOV AL. A Trustee may be removed m the same manner as a member of the Board, as set forth m SectIon 9.0l(e). Vacancies III the Trustees shall be filled m the same manner as vacancies m the Board, as set forth m SectIOn 9.01(f). 10.13 INTERIM DUTIES AND SUCCESSOR TRUSTEES Each successor Trustee shall succeed to the title to the Trust vested m his or her predecessor by accepting m wntmg hIS or her appomtment as successor Trustee and filing the acceptance with the former Trustee and the Board WIthout the Signing or filing of any further statement. The resigning or removed Trustee, upon receIpt of acceptance in writmg of the Trust by the successor Trustee, shall execute all documents and do all acts necessary to vest the title of record m any successor Trustee. Each successor Trustee shall have and enJoy all of the powers, both discretionary and mirustenal, conferred under thiS Agreement upon hiS or her predecessor A successor Trustee shall not be personally lIable for any act or failure to act of any predecessor Trustee. With the approval of the Employer and the Board, a successor Trustee, with respect to the Plan, may accept the account rendered and the property delIvered to It by a predecessor Trustee without mcurring any lIabilIty or responsibility for so doing. 10 14 VALUATION OF TRUST The Trustees shall value the Trust Fund as of each Accounting Date to determllle the fair market value of each PartiCIpant's Accrued Benefit In the Trust, and the Trustees shall value the Trust Fund on such other date(s) as directed by the Board. 1015 LIMITATION ON LIABILITY - IF INVESTMENT MANAGER APPOINTED The Trustees shall not be liable for the acts or omiSSIOns of any Investment Manager or Managers the Board may appomt, nor shall the Trustees be under any obligation to mvest or otherwIse manage any asset of the Plan which is subject to the management of a properly appolllted Investment Manager. The Board, the Trustees and any properly appointed Investment Manager may execute a letter agreement as a part of thiS Plan delineating the duties, responsibilIties and liabilities of the Investment Manager With respect to any part of the Trust Fund under the control of the Investment Manager 10.l6 INVESTMENT IN GROUP TRUST FUND. The Trustees, for collectIve Investment purposes and With the permission of the Employer, may combme into one (l) trust fund the Trust created under this Plan With the trust created under any other qualified retirement plan the Employer maintains. However, the Trustees shall maIntain separate records of account for the assets of each Trust in order to reflect properly each PartiCipant's Accrued Benefit under the plan(s) In which he or she IS a PartiCipant. lO l7 MANNER OF ACTION. Any action or deciSIOn of the Trustees shall be decided by maJonty vote of the Trustees then appomted and qualified. 52 "- ARTICLE XI PROVISIONS RELATING TO INSURANCE AND INSURANCE COMPANY 11.01 INSURANCE BENEFIT. To the extent pennitted under applicable Colorado law the Board may elect to proVide incidental lIfe insurance benefits for insurable Participants wh~ consent to lIfe Insurance benefits by signing the appropnate msurance company application form, provided however, that the aggregate of life Insurance premiums paId for the benefit of a PartiCipant, at all tImes, shall not exceed the followmg percentages of the aggregate of the Employer's contributIons allocated to any Participant's Account: (i) forty-nine percent (49%) m the case of the purchase of ordinary life msurance contracts; or (ii) twenty-five percent (25%) In the case of the purchase of term life insurance contracts. Furthermore, if the Trustees purchase a combination of ordinary life insurance contract(s) and term life insurance contract(s), or universal life insurance contract(s), then the sum of one-half (1/2) of the premiums paid for the ordinary life insurance contract(s) and the premIUms paid for the term life msurance contract(s) or the umversal life insurance contract(s) shall not exceed twenty-five percent (25%) of the Employer ContributIons allocated to any Participant's Account. The Trustees shall not purchase any incidental life Insurance benefit for any Participant pnor to the Accounting Date as of which the Board first makes an Employer contributIOn allocatIOn to the Participant's Account. At an msured PartiCipant's written dIrection, the Trustees shall use all or any portion of the Participant's voluntary contributions to pay insurance premiums covering the Participant's life. The purchase of life insurance and the premIUms payable therefor shall not lessen or diminish the Forfeiture denved from the nonvested component m the Employer ContributIOns Account allocated to the Employer pursuant to SectIOns 3.03 and 5.05. The Board may select the insurance company or companies and msurance agent(s) through which the Trustees are to purchase the msurance contracts, the amount of the coverage and the applicable dividend plan; provided, however, that no such agent shall be a Trustee, a member of the Board, a PartICIpant, a BenefiCIary, an employee of the Employer, or anyone related to any of the above named persons. Each applicatIOn for a policy, and the poliCies themselves, shall deSignate the Trustees as sole owner, with the nght reserved to the Trustees to exercise any nght or option contained in the poliCies, subject to the terms and provisions of this Agreement. The Trustees shall be the named beneficiary for the Account of the insured Participant. Proceeds of msurance contracts paId to the PartiCipant's Account under thiS Article XI shall be subject to the distribution requirements of Article V and of Article VI. The Trustees shall not retain any such proceeds for the benefit of the Trust. The Board shall charge all amounts paid by the Trustees pursuant to this SectIon 11 Ol for the premIums on any incidental benefit insurance contract(s) covering the life of a Participant to the Account of the Participant. The Trustees shall hold all incidental benefit insurance contracts issued under the Plan as assets of the Trust created under the Plan. ll02 LIMITATION ON LIFE INSURANCE PROTECTION. The Board shall direct the Trustees to not continue any life insurance protection for any Participant beyond his or her annuity startmg date (as defined In ARTICLE VI). If the Trustees hold any incidental benefit Insurance contract(s) on the lIfe of a PartiCipant 53 when he or she term mates his or her employment (other than by reason of death), the Board must direct the Trustees to proceed as fol1ows: (a) If the entIre cash value of the contract(s) IS vested m the termmatmg Participant, or If the contract(s) will have no cash value at the end of the policy year m which term matI on of employment occurs, the Trustees will transfer the contract(s) the ParticIpant endorsed so as to vest m the transferee all right, tItle and mterest to the contract(s), free and clear of the Trust; subject however, to restnctions as to surrender or payment of benefits as the Issumg msurance company may permit; (b) If only part of the cash value of the contract(s) is vested m the termmatmg Participant, the Trustees, to the extent the PartiCipant's mterest m the cash value of the contract(s) IS not vested, may adjust the Participant's mterest m the value of hiS or her Account attributable to Trust assets other than mcidental benefit insurance contracts and proceed as in (a), or the Trustees must effect a loan from the issuing Insurance company on the sole security of the contract( s) for an amount equal to the difference between the cash value of the contract(s) at the end of the policy year m which termmatIon of employment occurs and the amount of the cash value that IS vested In the terminating PartiCipant, and the Trustees must transfer the contract(s) endorsed so as to vest m the transferee all nght, title and mterest to the contract(s), free and clear of the Trust; subject however, to the restrictions as to surrender or payment of benefits as the iSSUing msurance company may permit; (c) If no part of the cash value of the contract(s) is vested in the termmatlng PartiCIpant, the Trustees must surrender the contract(s) for cash proceeds as may be available. The Board Will dIrect the Trustees to make any transfer of contract(s) under thiS SectIOn 11.02 on the Participant's annUIty startmg date (or as soon as admlllistratively feasible after that date). The Board shall direct the Trustees to not transfer any contract under thIS SectIOn l1.02 which contains a method of payment not specifically authorized by Article VI. In this regard, the Trustees either shall convert such a contract to cash and distribute the cash mstead of the contract, or before making the transfer, reqUIre the Issuing company to delete the unauthonzed method of payment option from the contract. II 03 DEFINITIONS For purposes of this Article XI: (a) "Policy" means an ordmary life insurance contract or a term life Insurance contract Issued by an msurer on the life of a Participant. (b) "Issuing Insurance Company" is any life msurance company which has Issued a policy upon application by the Trustees under the terms of thiS Agreement. (c) "Contract" or "Contracts" means a polIcy of msurance. In the event of any conflict between the proVisions of this Plan and the terms of any contract or polIcy of Insurance Issued in accordance with this Article XI, the provisions of the Plan shall control. (d) "Insurable PartIcipant" means a Participant to whom an Insurance company, upon an applIcation bemg submitted in accordance with the Plan, will issue Insurance coverage, 54 either as a standard nsk or as a risk in an extra mortality classification. 11.04 DIVIDEND PLAN. The dividend plan shall be premIUm reductIon unless the Trustees m their discretIOn decide to the contrary. The Trustees shall use all prerlllums for a contract to purchase insurance benefits or additional Insurance benefits for the PartiCipant on whose lIfe the insurance company has Issued the contract. Furthermore, the Trustees shall arrange, where possible, that all policies issued on the lIves of PartiCIpants under the Plan shall have the same premium due date and all ordmary life insurance contracts shall contam guaranteed cash values with as uniform baSIC optIOns as are possible to obtam. The term "dividends" includes policy diVidends, refunds of premIUms and other credits. 11.05 INSURANCE COMPANY NOT A PARTY TO AGREEMENT. No insurance company is a party to this Agreement nor shall any insurance company be responsible for Its validity 11.06 INSURANCE COMPANY NOT RESPONSIBLE FOR TRUSTEES' ACTIONS No Insurance company is required to examme the terms of thiS Agreement nor be responsible for any action taken by the Trustees. l1.07 INSURANCE COMPANY RELIANCE ON TRUSTEES' SIGNATURE. For the purpose of makmg applicatIOn to an msurance company and in the exercise of any nght or optIon contamed m any policy, the insurance company may rely upon the signature of the Trustees and shall be saved harmless and completely discharged in actmg at the direction and authonzatlOn of the Trustees. II 08 ACQUITTANCE. An insurance company shall be discharged from all lIabIlity for any amount paid to the Trustees or patd in accordance with the directIon of the Trustees and It shall not be oblIged to see to the distribution or further applIcatIon of any moneys it so pays. 11.09 DUTIES OF INSURANCE COMPANY. Each insurance company shall keep such records; make such identIfication of contracts, funds and accounts withm funds; and supply such informatIOn as may be necessary for the proper administration of the Plan under which it IS carrymg insurance benefits. 55 ARTICLE XII MISCELLANEOUS 12.01 EVIDENCE. Anyone reqUIred to give eVidence under the tenns of the Plan may do so by certificate, affidavit, document or other lllfonnation whIch the person to act in relIance may consider pertment, reliable and genuine, and to have been signed, made or presented by the proper party or parties. Both the Board and the Trustees shall be fully protected m actmg and relymg upon any eVidence described under the immediately precedmg sentence. l2.02 NO RESPONSIBILITY FOR EMPLOYER ACTION. Neither the Trustees nor the Board shall have any oblIgation nor responsibilIty with respect to any action reqUIred by the Plan to be taken by the Employer, any PartiCipant or eligible Employee, nor for the failure of any of the above persons to act or make any payment or contributIon, or to otherwise provide any benefit contemplated under this Plan, nor shall the Trustees or the Board be reqUIred to collect any contributIOn reqUIred under the Plan, or determme the correctness of the amount of any Employer contribution. Neither the Trustees nor the Board need mquire into or be responsible for any actIOn or failure to act on the part of the others. The Employer shall not be responsible for any act or faIlure to act on the part of the Board, the Trustees or any PartIcipant or ehgible Employee, nor for the payment of any benefits under this Plan except for its obligatIon to make Employer ContributIOns as provided under SectIon 3.01. l2.03 FIDUCIARIES NOT INSURERS The Trustees, the Board, the Plan Admlllistrator and the Employer in no way guarantee the Trust Fund from loss or depreciation. The Employer does not guarantee the payment of any money which may be or becomes due to any person from the Trust Fund. The liabilIty of the Board and the Trustees to make any payment from the Trust Fund at any time and all tImes is lImited to the then available assets of the Trust. l2.04 WAIVER OF NOTICE. Any person entitled to notice under the Plan may WaIve the notIce, unless the Code or Treasury regulatIons (if applicable) prescribe the notIce or specifically or imphedly prohibit such a WaIver. 12.05 SUCCESSORS The Plan shall be binding upon all persons entitled to benefits under the Plan, their respective hem and legal representatIves, upon the Employer, Its successors and assigns, and upon the Trustees and the Board and theIr successors. 12.06 WORD USAGE. Words used m the masculme shall apply to the femimne where applicable, and wherever the context of the Employer's Plan dictates, the plural shall be read as the smgular and the singular as the plural. The headings of Articles and SectIons are mcluded solely for convenience of reference, and if there be any conflict between such headings and the text of thiS Plan, the text will control. l2.07 STATE LAW. Colorado law shall determine all questions arismg with respect to the proviSIOns of thiS Agreement except to the extent Federal statute supersedes Colorado law. l2.08 EMPLOYMENT NOT GUARANTEED. Nothing contamed in this Plan, or with respect to the establishment of the Trust, or any modification or amendment to the Plan or Trust, or 56 in the creatIOn of any Account, or the payment of any benefit, shall give any Employee, Employee-Participant or any Beneficiary any nght to contmue employment, any legal or eqUItable nght agamst the Employer, or Employee of the Employer, or agamst the Trustees, or its agents or employees, or agamst the Plan Administrator, except as expressly prOVided by the Plan, the Trust, by a separate agreement, or by applicable law. Nothing contamed in thiS Plan will be construed as a contract of employment between the Employer and any Employee or PartiCIpant, or as a lImItatIOn on the nght of the Employer to employ, disciplIne or discharge any Employee or Participant. 12.09 EXEMPTION FROM ACT AND STATUTORY CONSTRUCTION. It IS mtended that thiS Plan is a "governmental plan" as defined m Act Section 3(32) and IS therefore exempt from the applicability of the Act and certam provisions of the Code related to tax quahfied plans and trusts, except to the extent, and only to the extent, expressly proVided to the contrary herein. Nothmg contamed herem shall be mterpreted or construed to be or to represent a waiver of said exemptIOns nor a consent to the applIcation of any proVisions of the Act or the Code to which governmental plans are exempted, except to the extent, and only to the extent, expressly proVIded to the contrary herein. l2.10 QUALIFIED MILITARY SERVICE. Notwithstandmg any provision in thiS Plan to the contrary, contributIOns, benefits and service credit with respect to or related to qualified military service will be provided in accordance with and will comply with the reqUIrements of Code SectIon 414(u) and applicable regulations thereunder. Loan repayments, If any, will be suspended under thiS Plan as permitted under Code Section 4l4(u)(4). The proVisions of this SectIon l2.l0 shall be effectIVe as of December 12, 1994. 57 ARTICLE XIII EXCLUSIVE BENEFIT, AMENDMENT, TERMINATION 13.01 EXCLUSIVE BENEFIT. Except as provided under ArtIcle ill, relatmg to utIhzatIon of Forfeitures to reduce the Employer's ContributIon, the Employer shall have no beneficIal mtcrest m any asset of the Trust and no part of any asset in the Trust shall ever revert to or be rcpaId to an Employer, either directly or Indirectly; nor pnor to the satisfactIon of allliablhtIes WIth rcspect to the PartICipants and their BeneficIaries under the Plan, shall any part of the corpus or Income of the Trust Fund, or any asset of the Trust, be (at any time) used for, or diverted to, purposes other than the exclusive benefit of the ParticIpants or their Beneficianes. NotwithstandIng the foregomg proviSIOn for Impossibility of diverSIOn of Trust assets to the Employer, if the Commissioner of Intemal Revenue, upon the Employer's request for initial approval of thiS Plan, determines that the Trust created under the Plan is not a qualified trust exempt from Federal mcome tax, then the Trustees, upon written notice from the Employer, shall return the Employer's contributIOns (and earnIngs mcrement attributable to the contributIons) to the Employer The Trustees must make the retum of the Employer contribution under thiS SectIon 13.01 within one (1) year of a final dispOSItIon of the Employer's request for Initial approval of the Plan. The Plan and Trust shall termInate upon the Trustees' return of the Employer's contributions and eammgs increment. 13.02 AMENDMENT BY EMPLOYER. (a) The Employer reserves the right to amend the Plan and the Trust Agreement from tIme to time, provided that: (1) except as otherwise provided hereafter in this SectIOn 13.02(a), at least Sixty-five percent (65%) of the partlcipatmg Employees who are affected by such amendment approve of It; (2) no amendment will reduce the non-forfeitable mterest m the Accrued Benefit of any PartiCipant, Former Participant or BenefiCiary as of the date of such amendment; and (3) no amendment will result in any part of the Trust Fund reverting or being paId to the Employer. If the Employer amends the Plan or Trust Agreement in any way which will affect the Plan's and Trust's contmued qualificatIon under Section 40l of the Code or the Trust's tax-exempt status under SectIon SO 1 of the Code, the amended Plan and Trust Agreement will be submitted to the Internal Revenue Service for application for determination. To the extent not prohibited by apphcable law, the Plan and the Trust Agreement may be amended by written agreement of the Employer and all of the then acting members of the Board without approval of at least sixty-five percent (65%) of the participatIng Employees who are affected by such amendment if, but only if: (l) the Board and the Employer determIne that such amendment is required m order to obtam or maintam the plan's or the Trust's initial or continued qualification under SectIOn 40l of the Code or the Trust's tax-exempt status under SectIon SOl of the Code, as the same may be amended, [the Board and the Employer may rely upon the good faith advice of ItS pension or tax counsel in makIng any such determInation], and (2) the Board and the Employer determIne that such amendment does not affect the rights or interests of any Participant, Former Participant or Beneficiary in the Plan or in their Plan Benefit in a material way. (b) No amendment may authorize or permit any of the Trust Fund (other than the part which is required to pay taxes and administration expenses) to be used for or diverted to purposes other than for the exclUSive benefit of the Participants or their Beneficianes or estates. No amendment may cause or permit any portion of the Trust Fund to revert to or become a property of 58 the Employer. The Employer also may not make any amendment which affects the nghts, dutIes or responsibilItIes of the Trustees, the Plan Administrator or the Board without the written consent of the affected Trustees, the Plan Administrator or the affected member of the Board. (c) With regard to any amendment of the Plan and Trust Agreement whIch alters m any way the benefits received by the Participants under the Plan, the Board shall represent and be the agent for the Participants m the negotiations with the Employer regardmg such amendments. 13 03 CONTINUANCE OF THE PLAN. The Employer expects to contmue thiS Plan and Trust indefinitely. However, in the event that the Employer is legally dIssolved pursuant to federal or state statute, court order or judicial decision, the Employer may term mate the Plan and Trust, but only if such tenmnation IS permitted under applicable Colorado law. 13 04 FULL VESTING ON TERMINATION. Notwithstanding any other proVISIOn of thiS Plan to the contrary, upon either full or partial termmation of the Plan by the Employer at any tIme as provided in Section 13.03, an affected Participant's right to his or her Accrued Benefit shall be one hundred percent (100%) Nonforfeitable. l3 05 MERGER. Applicable Colorado law may currently prohibIt the merger or consolidatIOn of thiS Plan With, or the transfer of its assets or liabilities to, another qualified deferred compensatIon plan. However, in the event that applicable Colorado law would ever permIt thiS Plan to merge or consolidate with, or transfer its assets or liabilitIes to, any other qualified deferred compensatIOn plan, and subject to Section 13.02, the Trustees shall not consent to, or be a party to, any merger or consohdation with another plan, or to a transfer of assets or liabilities to another plan, unless immediately after the merger, consolidation or transfer, the survIving Plan proVides each PartiCipant a benefit equal to or greater than the benefit each PartiCipant would have received had the Plan terminated immediately before the merger or consolidation or transfer The Trustees possess the specific authority to enter mto merger agreements or direct transfer of assets agreements with the trustees of other retirement plans described in Code SectIOn 40l(a), mcludmg an electIve transfer, and to accept the direct transfer of plan assets, or to transfer plan assets, as a party to any such agreement. The Trustees may accept a direct transfer of plan assets on behalf of an Employee pnor to the date the Employee satIsfies the Plan's eligibility condition(s). If the Trustees accepts a direct transfer of plan assets, the Board and Trustees shall treat the Employee as a Participant for all purposes of the Plan except the Employee may not make PartiCipant Mandatory Contributions under Article IV nor shall the Employee share in Employer ContributIons or PartiCipant Forfeitures under the Plan until he or she actually becomes a Participant in the Plan. The Trustees shall not consent to, or be a party to a merger, consolidation or transfer of assets With a pension plan that is subject to the proVisions of the Code and ERISA related to qualified Joint and survIVor annuities and preretirement survivor annuitIes, except with respect to an "elective transfer", as such term is described in Treasury Regulation Section 1.411 (d)-4A-3. The Trustees shall hold, administer and distribute the transferred assets as a part of the Trust Fund and the Trustees shall maintain a separate Employer contributIon Account for the benefit of the Employee on whose behalf the Trustees accepted the transfer in order to reflect the value of the 59 transferred assets. 13.06 TERMINATION. Upon ternunatlOn of the Plan, the distributIOn prOVISIOns of Arttcle VI shall remam operatIve, with the following exceptIOn. the PartICipant or the BenefiCiary, In addition to the distribution events permitted under Article VI, may elect to have the Trustees commence distributIOn of his or her Nonforfeitable Accrued Benefit as soon as admimstratIvely practicable after the Plan termmates. To lIqUIdate the Trust, the Board shall purchase a deferred annUIty contract for each Participant which protects the Participant's distributIon nghts under the Plan, If the PartIcIpant does not elect an immediate distribution pursuant to the preceding sentence and the dIstributIon provisions of ArtIcle VI. The Trust shall contmue until the Trustees in accordance with the direction of the Board has distributed all of the benefits under the Plan. On each Accounting Date, the Board shall credit any part of a Participant's Accrued Benefit retaIned m the Trust with Its proportIOnate share of the Trust's mcome, expenses, gams and losses, both realtzed and unrealIzed. Upon terminatIOn of the Plan, the amount, If any, III a suspense account under Article III shall revert to the Employer, subject to the condItions of the Treasury regulations permittmg such a reversion. A resolutIOn or amendment to freeze all future benefit accrual but otherwise to continue mamtenance of this Plan, is not a termInation for purposes of thIS SectIOn 13 06. 13.07 PLAN TO CONFORM TO CODE AND COLORADO LAWS. It IS the Intention of the Employer that It shall be Impossible for any part of the Trust Fund ever to be used for or dIverted to purposes other than for the exclusive purpose of providmg benefits to PartiCIpants and theIr BeneficIanes and defraying reasonable expenses of admimstenng the Plan and Trust Fund. The Plan and Trust Agreement will, therefore, be construed and admmistered to follow the spint and Intent of the Code and applIcable Colorado laws. l3.08 APPLICABILITY The prOVisions of thiS Plan and Trust shall apply only to an Employee who termmates employment on or after the Effective Date. The rights and Plan Benefits, if any, of an employee of the Employer whose employment term mates pnor to the Effective Date shall be determIned m accordance with the provisions of the pnor Plan, if any, m effect on the date his or her employment termmated. 60 IN WITNESS WHEREOF, the Employer and the Trustees have executed this Plan and Trust Agreement this _ day of , 2005 ATTEST "EMPLOYER" CITY OF WHEAT RIDGE By: Its Its "TRUSTEES" Mayor Chief of Police Treasurer City Clerk Participant Trnstee Participant Trnstee 61 Exhibit "A" FIRST AMENDMENT TO THE CITY OF WHEAT RIDGE MONEY PURCHASE PENSION PLAN FOR DESIGNATED POLICE DEPARTMENT EMPLOYEES ["EGTRRA Amendment"] THIS FIRST AMENDMENT TO THE CITY OF WHEAT RIDGE MONEY PURCHASE PENSION PLAN FOR DESIGNATED POLICE DEPARTMENT EMPLOYEES made and entered into by and between by and between THE CITY OF WHEAT RIDGE, a Colorado mumcipalIty (heremafter the "Employer"), and the Trustees named on the last page hereof (heremafter the "Trustees"). RECITALS: WHEREAS, the Employer and the then Plan Trustees executed THE CITY OF WHEAT RIDGE MONEY PURCHASE PENSION PLAN FOR DESIGNATED POLICE DEPARTMENT EMPLOYEES, dated ,2005, to be generally effectIve as of January l, 1997, for the purpose of amending and restatmg m Its entirety the eXlstmg THE CITY OF WHEAT RIDGE MONEY PURCHASE PENSION PLAN FOR DESIGNATED POLICE DEPARTMENT EMPLOYEES to comply with the tax qualificatIon requirements under the Intemal Revenue Code of 1986, as amended for the Uruguay Round Agreements Act (GATT), the Uniformed ServIces Employment and Reemployment Rights Act of 1994, the Small Business Job Protection Act of 1996, the Taxpayer Relief Act of 1997, the IRS Restructunng and Reform Act of 1998 and the Commumty Renewal Tax RelIef Act of 2000 [such acts are generally referred to as "GUST"] (the "Plan"), WHEREAS, subsequent to GUST, the Internal Revenue Code of 1986 was further amended by the Economic Growth and Tax RelIef ReconcilIatIon Act of 200l ("EGTRRA"), which reqUIred additional amendments to the Plan in order for It to maintain its tax qualification, which changes are generally effectIve for the Plan's first Plan Year commencmg after December 31, 2001, WHEREAS, the Employer and Trustees desire to amend the Plan by this FIRST AMENDMENT for certain applicable provisions ofEGTRRA; and WHEREAS, under applicable Internal Revenue Service procedures, thiS FIRST AMENDMENT IS mtended as good faith compliance with the reqUIrements of EGTRRA and is to be construed in accordance with EGTRRA and guidance issued thereunder. 1 NOW, THEREFORE, in consideration of the premises and the mutual covenants and promIses contamed herem, the receipt and suffiCiency of wluch are hereby acknowledged, the parties hereto hereby agree that the Plan be amended as follows. 1. Section 1.09 of the Plan is hereby amended and restated m Its entirety as follows: l.09 "Compensation" shall mean the total base salary paid by the Employer to a PartiCipant for services rendered to the Employer as an Employee, excluding bonuses, overtime pay, severance pay, shift dIfferentials, longevity pay, other forms of compensation, msurance premiums, pensIOns and retirement benefits, received for services performed as an Employee for the portion of the Plan Year dunng which the Employee was a Participant. However, the term "Compensation" shall not be reduced by the PartiCIpant's mandatory contributIOns which are picked up by the Employer pursuant to ARTICLE IV, nor shall "CompensatIOn" be reduced by any Elective Contributions, as defined m Section 1 41 Any reference in this Plan to Compensation is a reference to the defirution m thiS Section 1 09, unless the Plan reference specifies a modification to this definition. The Plan Administration CommIttee will take mto account only Compensation actually paid during (or as permitted under the Code, paid for) the relevant period. A Compensation payment includes Compensation by the Employer through another person under the common paymaster provisions m Code Sections 3121 and 3306. For any Plan Year begmning after December 31, 200l, the Trustees in allocatmg Employer contributions under ARTICLE III and Participant mandatory "picked up" contributIOns under SectIOn 40l shall not take mto account more than $200,000 (or such larger or smaller amount as the Commissioner of Internal Revenue may prescribe) of any Participant's "Annual Compensation." "Annual Compensation" means a Participant's CompensatIOn for the applIcable "Determination Penod." "DetermmatIOn Period" means the Plan Year. The $200,000 limit on Annual Compensation shall be adjusted for cost-of-Iiving increases in accordance with Code Section 40 1 (a)(I7)(B). The cost- of-lIvmg adjustment m effect for a calendar year applies to Annual Compensation for the Determmatlon Period that begms with or within such calendar year. 2. Section 3.05(c) of the Plan is hereby amended and restated m its entirety as follows: (c) "Maximum Permissible Amount" - For LimitatIOn Years beginnmg after December 3l, 200 l, the lesser of (1) $40,000 (or, if greater, the $40,000 amount as adjusted under Code ~4l5( d)), or (II) 100% of the Participant's Compensation for the LimitatIOn Year. If there is a short Limitation Year because of a change in Limitation Year, the Plan Administrator will multiply the $40,000 lImItation (or larger limitation) on Annual Additions by the followmg fraction. Number of months in the short Limitation Year l2. The 100% limitation shall not apply to any contribution for medical benefits after separation from service (withm the meaning of Section 40l(h) or Section 419A(t)(2) of the Code) which is otherwise treated as an Annual Addition. 2 3. SectIon 6.05 of the Plan IS hereby amended and restated III Its entIrety as follows. 6 05 DIRECT ROLLOVER. (a) ElectIon. This SectIon 6.05 applIes to distributIOns made on or after December 31, 2001. Notwithstanding any provision of the Plan to the contrary that would otherwIse limIt a distributee's electIOn under this ARTICLE VI, a distributee may elect, at the tIme and III the manner prescribed by the Trustees, to have any portIOn of an eligible rollover distributIon paId directly to an elIgible retIrement plan specified by the distributee m a direct rollover. Not earlier than nInety (90) days, but not later than thirty (30) days, before the Trustees' dIstributIon of an eligible rollover distribution, the Trustees must provide a wntten notIce (or a summary notice as permitted under Treasury regulatIOns) to a distributee the rollover optIon ("rollover notice"). The rollover notice must explain, among other mformatIon reqUIred by the apphcable provlSlons of the Code and regulations, the rollover optIOn, the optional forms of benefit m the Plan, Illcludmg the matenal features and relative values of those options, the proVISions under whIch the distributee may have a distributIon directly transferred to another elIgible retIrement plan, and the proVISIOns which require the Withholding of tax on the distribution If It IS not directly transferred to another elIgible retirement plan. A distributee may also elect to receive distribution as of any adminIstratively practicable time (as determined m the sole discretion of the Trustees) whIch is earlIer than thIrty (30) days followmg such distributee's receipt of the rollover notice by such distributee executmg a WaIver III wntmg of the remamder of such thirty (30) day penod and delIvering such wntten waiver to the Trustees. (b) Definitions. For purposes of this Section 605, the followmg definitIons shall apply (1) Eligible Rollover Distribution. An elIgible rollover distribution IS any distribution of all or any portion of the balance to the credit of the distributee, except that an eligible rollover distribution does not mclude (i) any distribution that is one of a senes of substantIally equal penodlc payments (not less frequently than annually) made for the life (or lIfe expectancy) of the dIstributee or the joint lives (or joint life expectancies) of the distributee and the dIstributee's deSIgnated beneficiary, or for a specified penod of ten years or more, (ii) any distribution to the extent such dIstributIon is required under sectIon 401(a)(9) of the Code, or (iii) any amount that is distributed on account of hardship. For purposes of the direct rollover proVISIOns in thiS SectIOn 6.05, a portion of a distribution shall not fail to be an elIgible rollover distributIon merely because the portIOn consists of after-tax PartiCIpant contributions or any other distribution which are not includible m gross income; proVIded, however, such portion may be paid only to an mdivldual retirement account or annuity described in Code SectIons 408(a) or 408(b), or to a qualified defined contribution plan described m Code Sections 40l(a) or 403(b) that agrees to separately account for amounts so transferred, mcludmg separately accounting for the portIOn of such distribution which is includible in gross income and the portIOn of such distribution which IS not so mcludible. 3 (2) ElIgible Retirement Plan. An elIgible retirement plan IS an mdlvldual retirement account described m section 408(a) of the Code, an mdividual retIrement annuity described m section 408(b) of the Code, an annuity plan described m section 403(a) of the Code, or a qualIfied trust described m sectIon 40l(a) of the Code, that accepts the distributee's elIgible rollover distributIOn. An eligible retirement plan shall also mean an annuity contract described m SectIOn 403(b) of the Code and an eligible plan under section 457(b) of the Code which is mamtained by a state, polItIcal subdIVISIon of a state, or any agency or Instrumentality of a state or politIcal subdiVIsion of a state and which agrees to separately account for amounts transferred into such plan from this Plan. The definition of eligible retIrement plan shall also apply in the case of a distribution to a survlVlng spouse, or to a spouse or former spouse who is the alternate payee under a qualified domestic relatIOn order, as defined m section 4l4(P) of the Code. (3) Distributee. A distributee includes a Participant or former PartiCIpant. In addition, the Participant's or former Participant's surviving spouse and the PartIcipant's or former Participant's spouse or former spouse who is the alternate payee under a qualified domestic relations order, as defined in section 4l4(P) of the Code or applIcable proviSIOns of CRS, are dlstributees with regard to the interest of the spouse or former spouse. (4) Direct Rollover. A direct rollover is a payment by the Plan to the elIgible retirement plan specified by the distributee. (5) Default Rollover. The Trustees in the case of a distributee who does not 2respond timely to the notice described m Section 605(a) may make a direct rollover of the Participant's Nonforfeitable Accrued Benefit to which the distributee is entItled (m the manner and subject to the procedures of IRS Revenue RulIng 2000-36 or in any successor law or guidance) in lIeu of dlstributmg such Nonforfeitable Accrued Benefit to the distributee. 4. Except as expressly provided for in tills FIRST AMENDMENT, all of the provisions of the Plan shall contmue to remam in full force and effect. In the event of a conflict between the provisions of the Plan and the proviSIOns of this FIRST AMENDMENT, the provisions of thiS FIRST AMENDMENT shall control. 5. This FIRST AMENDMENT is adopted to reflect certain proviSIOns ofEGTRRA. This FIRST AMENDMENT IS intended as good faith compliance With the requirements of EGTRRA and is to be construed in accordance with EGTRRA and guidance issued thereunder. Except as otherwise provided herein, the amendments set forth in this FIRST AMENDMENT shall be effective as of the first day of the first Plan Year beginning after December 3l, 200 l, and shall supercede any proVisions of the Plan to the extent those proviSIOns are mconsistent with the amendments set forth in this FIRST AMENDMENT. 4 IN WITNESS WHEREOF, the Employer and the Trustees have executed this Plan and Trust Agreement this _ day of , 2005. ATTEST "EMPLOYER" CITY OF WHEAT RIDGE BY' Its Its "TRUSTEES" Mayor Chief of Police Treasurer City Clerk Participant Tmstee Participant Tmstee 5 Exhibit "B" SECOND AMENDMENT TO THE CITY OF WHEAT RIDGE MONEY PURCHASE PENSION PLAN FOR DESIGNATED POLICE DEPARTMENT EMPLOYEES ["IRC Section 401(a)(9) Minimum Distributions Amendment"] THIS SECOND AMENDMENT, made and entered into as of thIs 23rd day of December, 2003, by and between by and between THE CITY OF WHEAT RIDGE, a Colorado municipality (hereinafter the "Employer"), and the Trustees named on the last page hereof (hereinafter the "Trustees"). RECITALS: WHEREAS, the Employer and the Trustees executed THE CITY OF WHEAT RIDGE MONEY PURCHASE PENSION PLAN FOR DESIGNATED POLICE DEPARTMENT EMPLOYEES, dated ,2005, to be generally effective as of January l, 1997, for the purpose of amendmg and restating m Its entIrety the existing THE CITY OF WHEAT RIDGE MONEY PURCHASE PENSION PLAN FOR DESIGNATED POLICE DEPARTMENT EMPLOYEES to comply with the tax qualIficatIOn reqUirements under the Intemal Revenue Code of 1986, as amended for the Uruguay Round Agreements Act (GATT), the Uniformed Services Employment and Reemployment Rights Act of 1994, the Small Business Job Protection Act of 1996, the Taxpayer Relief Act of 1997, the IRS Restructunng and Reform Act of 1998 and the Community Renewal Tax Relief Act of 2000 [such acts are generally referred to as "GUST"] (the "Plan"); WHEREAS, subsequent to GUST, the Internal Revenue Code of 1986 was further amended by the Economic Growth and Tax Rehef ReconCIlIation Act of 200l ("EGTRRA"), which reqUired that the Plan be amended in order for it to maintain its tax qualification, which amendments are generally effectIve for the Plan's first Plan Year commencing after December 3l,200l, WHEREAS, the Employer and Trustees amended the Plan by the FIRST AMENDMENT TO THE CITY OF WHEAT RIDGE MONEY PURCHASE PENSION PLAN FOR DESIGNATED POLICE DEPARTMENT EMPLOYEES ["EGTRRA Amendment"] for certain applicable provisions ofEGTRRA and as good faith compliance with the requirements of EGTRRA; 1 WHEREAS, subsequent to GUST and EGTRRA, final Treasury RegulatIOns were Issued regardmg reqUIred mmimum distributIOns under revised Internal Revenue Code s401(a)(9), and the Internal Revenue Service IS requiring that tax qualified plans, includmg the Plan, adopt conformmg amendments to their plans which incorporate the proVISIOns of these final RegulatIOns; and WHEREAS, the Employer and the Trustees desire that the Plan be now amended by thiS SECOND AMENDMENT to comply with the final Treasury RegulatIOns Issued under Code~401 (a)(9) relatIve to reqUIred mmimum distributIons, as set forth heremafter NOW THEREFORE, in consideration of the premIses and mutual covenants and promIses contamed herein, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree that the Plan be amended as follows: ARTICLE I GENERAL RULES 1 1. EffectIve Date. Unless a later effective date is specIfied in SectIon 6.1 of this Amendment, the proVisions of this Amendment will apply for purposes of determmmg reqUired mInImum distributIOns for calendar years beginnIng with the 2002 calendar year. l.2. Coordination with Minimum Distribution ReqUIrements PreVIOusly m Effect. If the effectIve date of thiS Amendment is earlier than calendar years begmnmg WIth the 2003 calendar year, required minImum distributIons for 2002 under this Amendment wIll be determmed as follows. If the total amount of 2002 reqUIred mlmmum distributIons under the Plan made to the distributee prior to the effective date of thiS Amendment equals or exceeds the reqUIred mmimum distributions determmed under thiS Amendment, then no additIonal dIstributIOns will be required to be made for 2002 on or after such date to the dIstributee. If the total amount of 2002 reqUIred minimum distributIOns under the Plan made to the dIstributee pnor to the effectIve date of this Amendment is less than the amount determined under this Amendment, then required mmimum distributions for 2002 on and after such date will be determined so that the total amount of required mmlmum distributIons for 2002 made to the distributee will be the amount determmed under this Amendment. l.3. Precedence. The requirements of this Amendment will take precedence over any mconslstent proviSIOns of the Plan. 1 4 ReqUirements of Treasurv RegulatIOns Incorporated. All distributIOns reqUIred under this Amendment will be determined and made in accordance with the Treasury Regulations under Section 40l(a)(9) of the Internal Revenue Code. 1.5. TEFRA Section 242(b)(2) Elections. Notwithstanding the other proVISIOns of thiS Amendment, distributIons may be made under a designation made before January l, 1984, in accordance with Section 242(b)(2) of the Tax Equity and Fiscal Responsibility Act (TEFRA) and the provisions of the Plan that relate to Section 242(b)(2) ofTEFRA. 2 ARTICLE II TIME AND MANNER OF DISTRIBUTION 2.1. ReqUIred Begmning Date. The Participant's entire interest will be distributed, or begm to be distributed, to the Participant no later than the Participant's reqUIred begmning date. 2.2. Death of PartiCIPant Before Distributions Beglll. If the PartiCipant dies before distributions begtn, the Participant's entire interest will be distributed, or begm to be distributed, no later than as follows: (a) If the Participant's surviving spouse is the PartiCipant's sole deSignated beneficiary, then, except as provided m Article VI, distributIOns to the survlvmg spouse will begin by December 31 of the calendar year immediately followmg the calendar year in which the Participant died, or by December 31 of the calendar year m which the Participant would have attained age 70Yz, If later. (b) If the Participant's surviving spouse IS not the PartiCipant's sole deSIgnated beneficiary, then, except as provided in Article VI, distributions to the deSIgnated benefiCiary will begin by December 3l of the calendar year Immediately following the calendar year in which the Participant died. (c) If there IS no designated beneficiary as of September 30 of the year followmg the year of the Participant's death, the PartiCipant's entire mterest WIll be distributed by December 3l of the calendar year contaimng the fifth anniversary of the Participant's death. (d) If the PartiCipant's surviving spouse is the PartiCipant's sole designated benefiCiary and the surviving spouse dies after the Participant but before distributIOns to the surviving spouse begin, this Section 2.2, other than SectIOn 2.2(a), will apply as if the surviving spouse were the Participant. For purposes of this Section 2.2 and Article IV, unless SectIon 2.2(d) applies, distributIOns are considered to begin on the Participant's required beginning date. If Section 2.2( d) applies, distributions are considered to begin on the date distributIons are required to begm to the survlVlng spouse under SectIOn 2.2(a). If distributions under an annUIty purchased from an Insurance company irrevocably commence to the Participant before the Participant's required beglnnmg date (or to the ParticIpant's surviving spouse before the date dIstributIOns are reqUired to begm to the surviving spouse under Section 2.2(a)), the date distributions are considered to begin is the date distributIons actually commence. 2.3. Forms of Distribution. Unless the Participant's interest IS distributed in the form of an annuity purchased from an msurance company or in a smgle sum on or before the required beginning date, as of the first distribution calendar year distributions will be made in accordance With Articles 3 and 4 of this Amendment. If the Participant's mterest is distributed in the form of an annuity purchased from an msurance company, distributions thereunder will be made in accordance with the requirements of Section 40l(a)(9) of the Code and the applIcable Treasury Regulations. 3 ARTICLE III REQUIRED MINIMUM DISTRIBUTIONS DURING PARTICIPANT'S LIFETIME 3.1. Amount of ReqUIred MinImum Distribution For Each Distribution Calendar Year. Dunng the Participant's lifetime, the minimum amount that will be distributed for each distribution calendar year is the lesser of: (a) the quotIent obtained by divldmg the PartIcipant's account balance by the dIstributIOn period m the Uniform LifetIme Table set forth in SectIOn 1 401(a)(9)-9 of the Treasury Regulations, usmg the Participant's age as of the PartiCipant's birthday m the dIstributIOn calendar year; or (b) If the Participant's sole designated beneficiary for the distributIon calendar year IS the Participant's spouse, the quotIent obtamed by diViding the PartiCIpant's account balance by the number in the Joint and Last Survivor Table set forth m SectIOn 1 40l(a)(9)-9 of the Treasury Regulations, usmg the Participant's and spouse's attamed ages as of the PartiCipant's and spouse's birthdays in the distribution calendar year 3.2. Lifetime ReqUIred Minimum DistributIOns Continue Through Year of Parttclpant's Death. ReqUired mmimum distributIons will be determined under this Article 3 begmnmg with the first distribution calendar year and up to and including the distributIOn calendar year that mcludes the Participant's date of death. ARTICLE IV REQUIRED MINIMUM DISTRIBUTIONS AFTER PARTICIPANT'S DEATH 4 1 Death On or After Date Distributions Begm. (a) PartiCipant SurvIved bv DeSignated Beneficiary If the Participant dies on or after the date distributIOns begm and there IS a deSignated beneficiary, the mmlmum amount that will be distributed for each distributIon calendar year after the year of the Participant's death is the quotIent obtamed by dividing the PartiCipant's account balance by the longer of the remainmg life expectancy of the PartiCipant or the remaining life expectancy of the ParticIpant's deSignated benefiCIary, determmed as follows. (l) The Participant's remaming life expectancy IS calculated using the age of the Participant in the year of death, reduced by one for each subsequent year (2) If the Participant's surviving spouse is the PartiCIpant's sole designated beneficiary, the remaimng life expectancy of the surviving spouse IS calculated for each distribution calendar year after the year of the Participant's death using the surviving spouse's age as of the spouse's bIrthday m that year. For distributIOn calendar years after the year of the surviving spouse's death, the remainmg life expectancy of the survlvmg spouse is calculated using the age of the surviving 4 spouse as of the spouse's birthday m the calendar year of the spouse's death, reduced by one for each subsequent calendar year. (3) If the Participant's surviving spouse IS not the Participant's sole deSignated beneficiary, the designated benefiCiary's remammg life expectancy IS calculated using the age of the beneficiary in the year followmg the year of the ParticIpant's death, reduced by one for each subsequent year (b) No Designated Beneficiarv. If the Participant dies on or after the date dIstributIons begm and there IS no designated beneficiary as of September 30 of the year after the year of the Participant's death, the minimum amount that will be distributed for each distribution calendar year after the year of the Participant's death is the quotient obtained by dividmg the Participant's account balance by the Participant's remainIng life expectancy calculated using the age of the PartiCipant in the year of death, reduced by one for each subsequent year. 4.2. Death Before Date Distributions Begin. (a) Participant Survived bv Designated Beneficiary. Except as proVided m Article VI, if the PartiCipant dies before the date distributions begm and there IS a deSIgnated beneficiary, the mimmum amount that will be distributed for each distributIon calendar year after the year of the Participant's death is the quotient obtained by divldmg the Participant's account balance by the remammg lIfe expectancy of the Participant's deSignated benefiCiary, determined as provided in Section 4.l. (b) No DeSignated Beneficiary. If the Participant dies before the date distributions begin and there IS no designated beneficiary as of September 30 of the year followmg the year of the Participant's death, distribution of the Participant's entIre interest will be completed by December 3l of the calendar year contaming the fifth annIversary of the Participant's death. (c) Death of Survivmg Spouse Before DistributIons to Survivmg Spouse Are Required to Begm. If the Participant dies before the date distributions begin, the Participant's survivmg spouse IS the Participant's sole deSignated beneficiary, and the surviving spouse dies before distributIOns are reqUIred to begin to the surviving spouse under SectIon 2.2(a), this SectIOn 4.2 will apply as If the survivmg spouse were the Participant. ARTICLE V DEFINITIONS 5 l. Designated beneficiary. The individual who is designated as the Beneficiary under the Plan and is the designated beneficiary under SectIon 40l(a)(9) of the Internal Revenue Code and SectIOn 1 40l(a)(9)-I, Q&A-4, of the Treasury RegulatIons. 5.2. DistributIon calendar year A calendar year for which a minimum distribution is required. For distributions beginning before the PartiCipant's death, the first distribution calendar 5 year is the calendar year Immediately preceding the calendar year which contams the Participant's reqUIred begmnmg date. For distributIons begmnmg after the Participant's death, the first distributIOn calendar year IS the calendar year m whIch distributIons are reqUIred to begm under SectIOn 2.2. The required mmlmum distributIOn for the PartIcipant's first distributIon calendar year will be made on or before the PartiCIpant's reqUIred begllmmg date. The reqUIred mimmum distributIon for other distributIon calendar years, mcluding the reqUIred mmlmum distributIOn for the distributIon calendar year m which the Participant's reqUIred begmmng date occurs, Will be made on or before December 3l of that distributIOn calendar year. 5.3 Life expectancy. Life expectancy as computed by use of the Single Life Table III SectIOn 1 40l(a)(9)-9 of the Treasury Regulations. 54 Participant's account balance. The account balance as of the last valuatIon date III the calendar year Immediately precedmg the distributIon calendar year (valuatIon calendar year) mcreased by the amount of any contributIOns made and allocated or forfeItures allocated to the account balance as of dates in the valuatIon calendar year after the valuatIon date and decreased by distributions made in the valuatIon calendar year after the valuatIOn date. The account balance for the valuation calendar year mcludes any amounts rolled over or transferred to the Plan either in the valuatIOn calendar year or m the distributIOn calendar year If distributed or transferred m the valuation calendar year 5.5 Required beginning date. The date specified in the Plan when distributIOns under SectIon 401 (a)(9) of the Internal Revenue Code are required to begm. ARTICLE VI INDIVIDUAL ELECTIONS REGARDING 5-YEAR RULE AND LIFE EXPECTANCY RULE Participants or beneficlanes may elect on an Illdlvidual baSIS whether the 5-year rule or the life expectancy rule m Sections 2.2 and 4.2 of thIS Amendment applIes to distributIons after the death of a Participant who has a designated beneficiary The electIon mUst be made no later than the earlIer of September 30 of the calendar year m which dIstribution would be required to begin under Section 2.2 of thiS Amendment, or by September 30 of the calendar year which contams the fifth anniversary of the PartiCIpant's (or, If applicable, survivmg spouse's) death. If neither the PartiCipant nor beneficiary makes an electIOn under thiS paragraph, distributions wIll be made m accordance with Sections 2.2 and 4.2 of this Amendment. ARTICLE VII EFFECT OF THIS SECOND AMENDMENT Except as expressly provided for m this SECOND AMENDMENT, all of the proVIsions of the Plan shall continue to remain in full force and effect. In the event of a conflict between the proviSIOns of the Plan and the provisions of this SECOND AMENDMENT, the provisions of thiS SECOND AMENDMENT shall control. 6 IN WITNESS WHEREOF, the Employer and the Trustees have executed thIs SECOND AMENDMENT on the of ,2005. ATTEST: Its "EMPLOYER" CITY OF WHEAT RIDGE By: Its "TRUSTEES" Mayor Chief of Police Treasurer City Clerk Participant Trustee Participant Trustee 7 Exhibit "c" THIRD AMENDMENT TO THE CITY OF WHEAT RIDGE MONEY PURCHASE PENSION PLAN FOR DESIGNATED POLICE DEPARTMENT EMPLOYEES ["IRC Section 401(a)(31) Amendment"] THIS THIRD AMENDMENT TO THE CITY OF WHEAT RIDGE MONEY PURCHASE PENSION PLAN FOR DESIGNATED POLICE DEPARTMENT EMPLOYEES, made and entered into by and between by and between THE CITY OF WHEAT RIDGE, a Colorado muniCipality (heremafter the "Employer"), and the Trustees named on the last page hereof (hereinafter the "Trustees"). RECITALS: WHEREAS, the Employer and the Plan Trustees executed THE CITY OF WHEAT RIDGE MONEY PURCHASE PENSION PLAN FOR DESIGNATED POLICE DEPARTMENT EMPLOYEES, dated , 2005, to be generally effective as of January l, 1997, for the purpose of amendmg and restatmg m its entIrety the existmg THE CITY OF WHEAT RIDGE MONEY PURCHASE PENSION PLAN FOR DESIGNATED POLICE DEPARTMENT EMPLOYEES to comply with the tax qualification requirements under the Internal Revenue Code of 1986, as amended for the Uruguay Round Agreements Act (GATT), the Umformed Services Employment and Reemployment Rights Act of 1994, the Small Busmess Job Protection Act of 1996, the Taxpayer RelIef Act of 1997, the IRS Restructuring and Reform Act of 1998 and the Commumty Renewal Tax Relief Act of 2000 [such acts are generally referred to as "GUST"] (the "Plan"); WHEREAS, subsequent to GUST, the Internal Revenue Code of 1986 was further amended by the Economic Growth and Tax Relief ReconciliatIOn Act of 200l ("EGTRRA"), which required that the Plan be amended in order for It to mamtain Its tax qualification, which amendments are generally effective for the Plan's first Plan Year commencing after December 31, 2001; WHEREAS, the Employer and Trustees amended the Plan by the FIRST AMENDMENT TO THE CITY OF WHEAT RIDGE MONEY PURCHASE PENSION PLAN FOR DESIGNATED POLICE DEPARTMENT EMPLOYEES ["EGTRRA Amendment"] for certain applicable provisions of EGTRRA and as good faith compliance With the reqUIrements of EGTRRA; 1 WHEREAS, final Treasury Regulations were lssued regardmg required mmlmum distributions under revised Internal Revenue Code Section 40l(a)(9), and the Internal Revenue Service reqUIred that tax quahfied plans, mcluding the Plan, adopt conforming amendments to their plans which mcorporate the proVISIOns of these final RegulatIons, WHEREAS, the Employer and the Trustees amended the Plan by the SECOND AMENDMENT TO THE CITY OF WHEAT RIDGE MONEY PURCHASE PENSION PLAN FOR DESIGNATED POLICE DEPARTMENT EMPLOYEES to comply with the final Treasury Regulations issued under Code Section 401 (a)(9) relative to required mimmum distributions, WHEREAS, the Internal Revenue Service now requires that tax qualified plans, mcluding the Plan, adopt conforming amendments to their plans which incorporate the provisions of Code SectIon 410(a)(31); WHEREAS, the Employer and the Trustees desire that the Plan be now amended by thIS THIRD AMENDMENT to comply with the provisions of Code SectIOn 4lO(a)(3l). NOW THEREFORE, m consideration of the premises and mutual covenants and promIses contained herem, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree that the Plan be amended as follows. 1. follows: Section 6.0l of the Plan IS hereby amended by adding new SectIOn 6.01 (c) as (c) Mandatory Distributions Greater than $1,000.00. Anythmg contamed herein to the contrary notwithstanding, in the event of either the failure of a Participant to make a distributIon electIon withm the six (6) month period described in SectIOn 6.01(a) or the absence of a distribution electIon by a deceased Participant or his or her designated Beneficiary as described m Section 6.0 1 (b), and if the PartiCIpant's distributable Nonforfeitable Accrued Benefit under the Plan exceeds $l,OOO 00, then the Board wi]] distribute such Participant's Nonforfeitable Accrued Benefit under the Plan m a direct rollover to an mdividual retIrement plan designated by the Board. 2. This THIRD AMENDMENT shall be effective with respect to PartiCipant distributIOns made on or after March 28, 2005 (or such later date apphcable to governmental plans). 3. Except as expressly proVided for in this THIRD AMENDMENT, all of the provisIOns of the Plan shall continue to remam ill fu]] force and effect. In the event of a confltct between the provisions of the Plan and the provisions of this THIRD AMENDMENT, the provisions of this THIRD AMENDMENT shall control. 2 IN WITNESS WHEREOF, the Employer and the Trustees have executed this THIRD AMENDMENT this day of , 2005 ATTEST By' Its "EMPLOYER" CITY OF WHEAT RIDGE By: Its "TRUSTEES" Mayor Chief of Police Treasurer City Clerk Participant Trustee Participant Trustee 3 RESOLUTION NO._ SERIES OF 2005 TITLE: A RESOLUTION APPROVING THE ADOPTION OF THE RESTATED CITY OF WHEAT RIDGE MONEY PURCHASE PENSION PLAN FOR DESIGNATED POLICE DEPARTMENT EMPLOYEES AND THE FIRST, SECOND AND TIDRD AMENDMENTS THERETO FOR THE PURPOSE OF REINSTATING THE PLAN'S TAX QUALIFICATION UNDER SECTION 401(a) OF THE INTERNAL REVENUE CODE AND APPROVING THE SUBMISSION OF AN IRS DETERMINATION LETTER REQUEST AND OF AN IRS VOULUNTARY COMPLIANCE PROGRAM REQUEST TO OBTAIN IRS APPROVAL OF THE REINSTATEMENT OF THE PLAN'S TAX QUALIFICATION UNDER SECTION 401(a) OF THE INTERNAL REVENUE CODE WHEREAS, the origmal Pension Plan for Designated Police Department Employees of the City ( the "Plan") was established effective as of October 1, 1981, and was subsequently amended, m restated form, effective generally as of January l, 1987, and has been amended thereafter WHEREAS, the Plan is intended to be a tax qualified retirement plan under Section 40 1 (a) of the Internal Revenue Code of 1986, as amended (the "Code"); WHEREAS, the Plan was not amended III a tImely manner for vanous changes m the Code since the Plan was restated effectIve generally as of January l, 1987, and, therefore, the Plan is no longer in compliance with the current reqUIrements of Code SectIon 401(a) and has lost its tax qualification; WHEREAS, the Plan has now been amended and restated with the intent of complying with the current requirements of Code Section 401 (a), as set forth m the attached documents (collectively referred to as the "Restated Plan"): 1. THE CITY OF WHEAT RIDGE MONEY PURCHASE PENSION PLAN FOR DESIGNATED POLICE DEPARTMENT EMPLOYEES ["GUST Restated Plan"]; 2. THE FIRST AMENDMENT TO THE CITY OF WHEAT RIDGE MONEY PURCHASE PENSION PLAN FOR DESIGNATED POLICE DEPARTMENT EMPLOYEES ["EGTRRA Amendment"], 1 3 THE SECOND AMENDMENT TO THE CITY OF WHEAT RIDGE MONEY PURCHASE PENSION PLAN FOR DESIGNATED POLICE DEPARTMENT EMPLOYEES ["IRC Section 401 (a)(9) Mifilmum Distribution Amendment"], and 4 THE THIRD AMENDMENT TO THE CITY OF WHEAT RIDGE MONEY PURCHASE PENSION PLAN FOR DESIGNATED POLICE DEPARTMENT EMPLOYEES [HIRC SectIOn 401(a)(31) Amendment"]. WHEREAS, under current IRS procedures to reinstate the Plan's tax qualified status under the requirements of Code Section 40l(a) and to insure that the Restated Plan conforms to the requirements of Code Section 40l(a), It IS necessary to submIt a request to the IRS under its Employee Plans Compliance Resolution System ("EPCRS") for its approval to remstate the Plan's tax qualified status and to submit a request that the IRS Issue a determinatIOn letter that the Restated Plan conforms to the current reqUIrements of Code Section 401 (a). NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WHEAT RIDGE THAT 1 The City of Wheat Ridge hereby adopts the Restated Plan. 2. The City of Wheat Ridge hereby deems It prudent and necessary to submit a request to the IRS under its Employee Plans Compliance Resolution System ("EPCRS") for Its approval to reinstate the Plan's tax qualified status and to submit a request that the IRS Issue a determinatIOn letter that the Restated Plan conforms to the current reqUirements of Code Section 401 (a). 3 The City of Wheat Ridge hereby directs and authonzes its Mayor and City Clerk and other admmistrative personnel to take any necessary and appropriate action, mcludmg, but not lImited to, execution of the Restated Plan and the executIon and submission of all required documentatIOn with respect to such request to the IRS under Its Employee Plans Compliance ResolutIOn System ("EPCRS") for Its approval to remstate the Plan's tax qualified status and such request that the IRS issue a determmation letter that the Restated Plan conforms to the current requirements of Code SectIOn 40l(a). DONE AND RESOL YED at a meetmg of the City Council of the City of Wheat Ridge, Colorado on the day of ,2005. Gretchen Cerveny, Mayor ATTEST Pam Anderson, City Clerk 2 CITY OF WHEA T RIDGE, COL ORADO INTRODUCED BY COUNCIL MEMBER Council Bill No. Ordinance No. Series of 2005 TITLE: AN ORDINANCE AMENDING CHAPTER 19 OF THE WHEAT RIDGE CODE OF LAWS CONCERNING WHEAT RIDGE POLICE PENTION FUND WHEREAS, the City Council of the City of Wheat Ridge has all authority pursuant to the constitution of laws of the state to enact ordinances for the preservation of the public health, safety and welfare; and WHEREAS, the City Council has authority pursuant to C.R.S. S 31-30.5-101 to create and administer a police pension plan; and WHEREAS, in furtherance of this authority, the City Council has established a Wheat Ridge police pension fund; and WHEREAS, the Council has also established a police pension board to serve as trustee for the pension fund; and WHEREAS, the Council wishes to adjust the membership of the police pension board and make related changes to other sections of the Code of Laws pertaining to the police pension fund. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WHEAT RIDGE, COLORADO, AS FOLLOWS: Section 1. Subsections 19-51 (a) and (b) of the Wheat Ridge Code of Laws are amended to read as follows: Sec. 19-51. Establishment. (a) There is hereby established the Wheat Ridge Police Pension Fund, the purpose of which is to provide retirement benefits for members of the city police department. Members of the plan are defined as full-time, paid, sworn police officers of the police department of the city. and all poliee diapBtehers hired prior to JanUar"f 1, 1 ~7~. WRCA 029 (b) The pension fund established herein shall be in the form of a money purchase plan. Thc phrase "money purcha3e f}lan" mcans a prograffi undcr which mcmber and city contriBution3 arc accumulatcd '.\'ith intercst to purchasc B bcncfit at retircment, The benefit Bffiount is determincd b't octuariBlI'y' convcrting the aceumulateB sum in B member's retiremcnt account into a monthly bcnefit based on uniform actuarial assumptions oppro'Jcd by the board for such plans. The tefflt PLAN does not include a plan which provides for minimum benefits or other defined benefits. Section 2. Subsections 19-52(aHb) and (e) of the Wheat Ridge Code of Laws are amended to read as follows: Sec. 19-52. Operation. (a) The POLICE PENSION FUND policefficn's moncy purchasc plan of the city shall be operated in accordance with the laws and the statutes of the state as provided in C.R.S. tit. 31, art. 30.5 [~ 31 30 101 et seq.]as amended, and as the same may later be amended. (b) The police pension board shall serve as trustees for the plan hereby created. The members of the police pension board shall be the mayor, the city treasurer, the city clerk, the chief of police, and twt} rn THREE (3) members of the plan as defined herein, which members of the plan shall be elected by the membership of the plan. One (1) such plan member shall be elected annually for a twt}- THREE- year term, so that the two (2) THREE (3) elected board members serve staggered terms as trustees, SUCH THAT ONE MEMBER IS ELECTED EACH YEAR. NOTWITHSTANDING THE FOREGOING, IN ORDER TO ACHIEVE STAGGERED TERMS AMONG THE THREE (3) ELECTED MEMBERS OF THE BOARD, AT THE ELECTION HELD IN NOVERMBER, 2005, TWO (2) MEMBERS SHALL BE ELECTED: THE CANDIDATE RECEIVING THE HIGHEST NUMBER OF VOTES SHALL BE ELECTED TO A WRCA 026 THREE (3) YEAR TERM, AND THE CANDIDATE RECEIVING THE SECOND HIGHEST NUMBER OF VOTES SHALL BE ELECTED FOR A TWO (2) YEAR TERM. The trustees shall receive no pay for services as members of the board. (c) (d) (e) A plan document shall be prepared specifying the operation of the money purchase plan, and detailing handling of contributions, administration of the plan, refunds upon termination, the manner of benefit payments, and other information as required by applicable state law or this article or as is deemed necessary by the police pension board. A summary of the plan document shall be provided to all members of the plan, who shall thereafter be polled regarding their approval of the plan as provide in C.R.S. ~ 31 30 1003.2(2)(e) ~ 31-30.5-101 et seQ. At such time as the plan is approved by the members as required herein, the same shall be forwarded to city council which shall, by resolution, approve the plan. Section 3. Subsection 19-53(a) amended to read as follows: Sec. 19-53. Contributions - City. (a) The city shall pay from the general funds of the city into the police pension fund hereby created a sum monthly as shall not exceed ten (10) percent of the monthly salaries of all full-time paid, sworn police officers of the police department of the city. ARe all police dispatchers hiree prior to January 1, 1 ~70. The city council shall be empowered to establish on a yearly basis the specific annual amount to be paid from the general fund of the city into the police pension fund. Section 4. Subsection 19-54(b) is amended to read as follows: Sec. 19-54. Same - Officers. WRCA 026 (b) TO AND INCLUDING DECEMBER 31, 2005, members may also elect to contribute a supplemental amount monthly to the fund, provided that the total amount contributed monthly by any member, including matching and supplemental contributions, shall not exceed twenty-five (25) percent of the member's current monthly salary. THIS SUBSECTION (B) SHALL BE REPEALED AS OF JANUARY 1, 2006. Section 5 Severability. If any clause, sentence, paragraph, or part of this Ordinance or application thereof to any person or circumstances shall for any reason be judged by a court of competent jurisdiction invalid, such judgment shall not affect, impair or invalidate the remainder of this Ordinance or its application to other persons or circumstances. Section 6. Effective Date. This Ordinance shall take effect immediately upon adoption, as permitted by the Charter. INTRODUCED, READ, AND ADOPTED on first reading by a vote of _ to _ on this day of , 2005, ordered published in full in a newspaper of general circulation in the City of Wheat Ridge and Public Hearing and consideration on final passage set for , 2005, at 7:00 o'clock p.m., in the Council Chambers, 7500 West 29th Avenue, Wheat Ridge, Colorado. READ, ADOPTED AND ORDERED PUBLISHED on second and final reading by a vote of to , this day of , 2005. SIGNED by the Mayor on this day of ,2005. WRCA 026 ATTEST: PAMELA Y. ANDERSON, CITY CLERK 15t Publication: 2nd Publication: Wheat Ridge Transcript Effective Date: WRCA 026 GRETCHEN CERVENY, MAYOR APPROVED AS TO FORM BY CITY ATTORNEY GERALD E. DAHL, CITY ATTORNEY