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Home My WebLink About10/10/2005 6:30 p.m. Pre-Meeting ~\ a = I'J ~ ~\ CITY COUNCIL MEETING CITY OF WHEAT RIDGE, COLORADO 7500 WEST 29TH AVENUE, MUNICIPAL BUILDING October 10. 2005 7:00 p.m. CALL TO ORDER PLEDGE OF ALLEGIANCE ROLL CALL OF MEMBERS APPROVAL OF MINUTES OF September 26. 2005 CITIZENS' RIGHT TO SPEAK 1 Citizens, who wish, may speak on any matter not on the Agenda for a maximum of 3 Minutes and sign the Public Comment Roster. - 2 Citizens who wish to speak on Agenda Items, please sign the GENERAL AGENDA ROSTER or appropriate PUBLIC HEARING ROSTER before the item is called to be heard APPROVAL OF AGENDA PUBLIC HEARINGS AND ORDINANCES ON SECOND READING Item 1. COUNCIL BILL 17-2005 - AN ORDINANCE AMENDING CHAPTER 19 OF THE WHEAT RIDGE CODE OF LAWS CONCERNING THE WHEAT RIDGE POLICE PENSION FUND ORDINANCES ON FIRST READING Item 2. COUNCIL BILL 16-2005 - AN ORDINANCE PROVIDING FOR THE APPROVAL OF REZONING FROM PLANNED INDUSTRIAL DEVELOPMENT (PID) AND INDUSTRIAL (I) TO PLANNED MIXED USE DISTRICT (PMUD) FOR PROPERTY LOCATED AT 5060 WARD ROAD, CITY OF WHEAT RIDGE, COUNTY OF JEFFERSON, STATE OF COLORADO (CASE NO WZ-05-07) (IBC HOLDINGS) CITY COUNCIL AGENDA. October 10, 2005 Page -2- DECISIONS. RESOLUTIONS, AND MOTIONS Item 3. Item 4. Item 5. RESOLUTION 48-2005 - APPROVING THE ADOPTION OF THE RESTATED CITY OF WHEAT RIDGE MONEY PURCHASE PENSION PLAN FOR DESIGNATED POLICE DEPARTMENT EMPLOYEES AND THE FIRST, SECOND AND THIRD 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 VOLUNTARY 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. RESOLUTION 49-2005 - REPEALING AND REENACTING THE CITY BUDGET AND APPROPRIATING SUMS OF MONEY TO THE VARIOUS FUNDS AND SPENDING AGENCIES IN THE AMOUNTS SPECIFIED BELOW FOR THE CITY OF WHEAT RIDGE, COLORADO, FOR THE 2006 BUDGET YEAR. Approval of the Cisco Network Upgrade to Forsythe, Inc in the total amount of $46,032.85 - CITY MANAGER'S MATTERS CITY ATTORNEY'S MATTERS ELECTED OFFICIALS' MATTERS ADJOURNMENT City of Wheat Ridge Office of the Deputy City Manager Memorandum TO' Mayor and City Council THROUGH: Randy Young, City Manager FROM' Patrick Goff, Deputy City Manager DATE' October 5, 2005 SUBJECT. Change to 2006 Proposed Budget After the September 26th Budget Retreat, it was discovered that staff overlooked the need for an additional small parks pickup to be used by the proposed two Parks Mailltenance Workers. The cost of this vehicle is approximately $18,000 and has been added to the General Fund ill the 2006 Proposed Budget. - Total expenses ill the General Fund, including transfers to the CIP budget and to WR2020, illcreases by $18,000 from $25,793,941 to $25,811,941 General Fund projected fund balance for the end of2006 decreases by $18,000 from $5,697,478 to $5,679,478 and from 22.1% to 22 0% of expenditures. Attached IS a revised "Budget Summary by Fund" from page 55 of your proposed budget book With these changes. If you have any questions, please give us a call. ~ Revenues & Expenditures Summary Budget Summary By Fund BUDGET SUMMARY BY FUND (Revised) Beginning Funds Fund Balance + Re\oenues Expens es Balance (1/1/06) Awilable (12/31/06) Operating Funds General $6,757,660 + $24,733,759 $31,491,419 $25,811,941 $5,679,478 Total Operating Funds $6,757,660 + $24,733,759 $31,491,419 $25,811,941 $5,679,478 Fund Balance Percentage 22.0% Capital Funds Capital Investment Program $3,945,990 + $3,830,000 $7,775,990 $7,765,000 $10,990 Total Capital Funds $3,945,990 + $3,830,000 $7,775,990 $7,765,000 $10,990 Special Re\oenue Funds Police Investigation $14,045 + $100 $14,145 $8,795 $5,350 Open Space $257,652 + $900,250 $1,157,902 $1,148,115 $9,787 Municipal Court $38,880 + $39,500 $78,380 $62,100 $16,280 Richards Hart Estate $54,964 + $57,500 $112,464 $65,000 $47,464 Senior $16,046 + $12,600 $28,646 $27,300 $1,346 Conservation Trust $250,855 + $378,000 $628,855 $465,000 $163,855 - Hotel/Motel $114,536 + $237,500 $352,036 $351,867 $169 Recreation Center Operations $2,402,470 + $2,087,766 $4,490,236 $2,339,964 $2,1 50,272 Total Special Re\oenue Funds $3,149,448 + $3,713,216 $6,862,664 $4,468,141 $2,394,523 Total Operating Fnnds $6,757,660 + $24,733,759 $31,491,419 $25,811,941 $5,679,478 Total Capi tal Funds $3,945,990 + $3,830,000 . $7,775,990 $7,765,000 . $10,990 Total Special Re\oenue Funds $3,149,448 + $3,713,216 $6,862,664 $4,468,141 $2,394,523 (Less Transfers) $0 + ($3,450,000) ($3,450,000) ($3,450,000) $0 GRAND TOTAL $13,853,098 + $28,826,975 $42,680,073 $34,595,082 $8,084,991 55 ~O~'~ ~~th" October 10. 2005 ~ 7/" - Mayor Cerveny called ~ Regtpf Cj;' Council Me~ng to order a9 00 p m GPuncilmemb~ present: Kar~ Adams, Kare~~rrY, Jerry DiTullio, Dean Gokey'"Lena Rotola, Wanda Sang, Larry Schult,'" and Mike Stites. Also present: City Clerk, Pamela Anderson, City Manager, Randy Young, City Attorney, Gerald Dahl, Director of Community Development, Alan White, Director of Public Works, Tim Paranto, staff; and interested citizens APPROV AL OF MINUTES OF September 26, 2005 Motion by Mr DiTullio for the approval of the Minutes of September 26, 2005, seconded by ~d--' carried ?""'-O . CITIZENS' RIGHT TO SPEAK c;"'~v V\\r CITY COUNCIL MINUTES October 10, 2005 Page -2- as printed APPROVAL OF AGENDA PUBLIC HEARINGS AND ORDINANCES ON SECOND READING Item 1. COUNCIL BILL 17-2005 -AN ORDINANCE AMENDING CHAPTER 19 OF THE WHEAT RIDGE CODE OF LAWS CONCERNING THE WHEAT RIDGE POLICE PENSION FUND Council Bill 17-2005 was introduced on second reading by Mrs Sang City Clerk Pam Anderson assigned Ordinance No 1353 Motion by Mrs Sang to approve Council Bill 17-2005 (Ordinance No 1353) and that it take effect immediately; seconded by t-\i.\tvv\f-.;Y" carried 3' /0 CITY COUNCIL MINUTES October 10, 2005 Page -3- ORDINANCES ON FIRST READING Item 2. COUNCIL BILL 16-2005 - AN ORDINANCE PROVIDING FOR THE APPROVAL OF REZONING FROM PLANNED INDUSTRIAL DEVELOPMENT (PID) AND INDUSTRIAL (I) TO PLANNED MIXED USE DISTRICT (PMUD) FOR PROPERTY LOCATED AT 5060 WARD ROAD, CITY OF WHEAT RIDGE, COUNTY OF JEFFERSON, STATE OF COLORADO (CASE NO WZ-05-07) (IBC HOLDINGS) Council Bill 16-2005 was introduced on first reading by Motion by ~~ to approve Council Bill 16-2005 on first reading, order it published, public hearing set for Monday, November 14, 2005 at 700 P m in the City Council Chambers, and that it take effect 15 days after final publication, seconded by '5d'~ carried S' ,.- 0 Motion by to continue Council Bill No 16-2005 case number WZ-05-07, a request for a rezoning from Planned Industrial Development and Industrial ro Planned Mixed Use District on first reading for property located at 5060 Ward Road until 3U~ , timo as ti,e request C8fl be "'caFe! if! it! cntirct1 by ti,e nCilvly c1eGted Cit; COUR~ ~ ckrc. seconded by , carried P<", \ Z. I ' Po (\iVv' 2 ~ - DECISIONS, RESOLUTIONS, AND MOTIONS Item 3. RESOLUTION 48-2005 - APPROVING THE ADOPTION OF THE RESTATED CITY OF WHEAT RIDGE MONEY PURCHASE PENSION PLAN FOR DESIGNATED POLICE DEPARTMENT EMPLOYEES AND THE FIRST, SECOND AND THIRD 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 VOLUNTARY 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 -( (~c. _ Yh1^-- Resolution 48-2005 was introduced by >')t,t.~ ~-'\Il,\'i/V\'~c CITY COUNCIL MINUTES. October 10, 2005 . / <:: ~. '."i.:, M t. b f'J A\is./ . . /\\\\ o Ion y .' ,~ \ to approve Resolution 48-2005, seconded by ~ carried Page -4- 3/0. CITY COUNCIL MINUTES October 10, 2005 Page -5- Item 4. RESOLUTION 49-2005 - REPEALING AND REENACTING THE CITY BUDGET AND APPROPRIATING SUMS OF MONEY TO THE VARIOUS FUNDS AND SPENDING AGENCIES IN THE AMOUNTS SPECIFIED BELOW FOR THE CITY OF WHEAT RIDGE, COLORADO, FOR THE 2006 BUDGET YEAR. Resolution 49-2005 was introduced by ~(LvI\;?( Motion by <; CJv'v~ to approve R~olution 49-2005, seconded by r~~. carried I ~\ c.YiYc) C \ G'1\'\'YY ----. &t&~ tv'vVVvJ f?:J;1?i- f 3 {V'vWA~VL0tvr -' -~ r t \A 1.[,(1 ~JcJ / ~ ~j;wirvl~ o . ~u.et' d, L~ ~ ~). V~} ~ IlL) 7~'--' ~?rC;(- rlc}~l. L. J" J ---..-" (-- , C'iJIu) ~'\..[' CITY COUNCIL MINUTES October 10,2005 Page -6- Item 5. Approval of the Cisco Network Upgrade to Forsythe, Inc in the total , amount of $46,032 85 - lv\v.("^,,d - Oilc' \ \"y' Motion by '\/1.1'^\ l i-U- to approve tire purdiase of equipment, installation and consulting services for the Cisco Ne~ork Upgrade to Forsythe, Inc in the total amount of $46,032 85, seconded by AJldtV\) S- carried ~ " D f"f" CITY MANAGER'S MATTERS CITY ATTORNEY'S MATTERS ELECTED OFFICIALS' MATTERS CITY COUNCIL MINUTES October 10, 2005 Page -7- Meeting adjourned at p m Pamela Y Anderson, City Clerk APPROVED BY CITY COUNCIL ON OCTOBER 24, 2005 BY A VOTE OF _ to _ Lena Rotola, Council President The preceding Minutes were prepared according to 947 of Robert's Rules of Order, i e they contain a record of what was done at the meeting, not what was said by the members. Tape recordings and video recordings of the meetings are available for listening or viewing in the City Clerk's Office, as well as copies of Ordinances and Resolutions ~ ()') L\ \\ ~ -r~ ,-, I. ,/ '(\ 'C- <C: \.\ S '''-J - - \.i"-., " .\'-.L..-- ,> . . o .~ \S ~ .r; ~\.) -:; \ \ - \ \ J~~"-./ , . . ~v' CiP't~ (,C\\.I.J~.;Y' r1\..l(' ~~,/ .,y ~ rY ~~' ~ iLvt.L l~ 1.. _ c; 0.. /, L ,,~~\. TV CS ~'-t.~ ~ fl.ycT\~t~~~. AASI/~v j r' C!' c/---- .', _ -L _ '\-ed'.""- de -0 - l,"',!v" ~ r vvl'-<" I )V~ I .) , . 1 frv~,u,v;.-l '\"t\.-V\...-<. ,^^,~.cJ:-'n _ 1- <': k v 1 ",.4'(. .' \- _' ~vtt) 3<-'(., r>J"'" \ q \ kodC",< .'\- \"'j:.';'~6, ,~J-~ ~ ~ \;l()k~" 1'^-~'>~ <...G \. '-v .\CN'lyN , ~ t . ,.., . / N L;~<--L t- ~ 1i-\e c tI~. ------- C4-< t- 1 ___, \ Vl'-l'\M.c"'y-t ~ I ,_'~l:T;' - ~~ ~,. -t~. ~:------~ =----------- \v'1 '-'- ~ .v-..:,\(.\ . '\~ _ J;:lu:5 ,_-.-,,------~ . ,_~'~l ,,-\:, ,~ . HdlVV }, 1/ /"l l (~e .' _ I 4.t/1..,v.e:-v-z.. 1 C V VY-c:>t<ftVV1 _ -t-.: Cfry".-.M~'" .--eLCytM'le10't- {,0(,WI, /--2~- bLdr 1- ~jtct u:~ /fa F i j ),c;.:r \~ ._~ ",.~ ._.~ - _' J.-.k- -1-- 'n l- '1'- i \ (S I C,-,-, --C(Jc~ ~ l l fed) ci iJ 0vL-Yy) [v\... ~ c.-- --~ ~> . .-f2' J..-<2/:?'? I c-L _ } L"":::. ~L..._ ~J l.~' 1 ,------~ / h.Li1 t:----.. .._~ \~ , :J./ O' .., \ CITY OF WHEAT RIDGE PUBLIC BEARING ROSTER AGENDA ITEM NO.1. PUBLIC BEARING BEFORE THE WHEAT RIDGE CITY COUNCIL CASE NO. COUNCIL BILL NO. 17-2005 TITLE: COUNCIL BILL 17-2005 - AN ORDINANCE AMENDING CHAPTER 19 OF THE WHEAT RIDGE CODE OF LAWS CONCERNING THE WHEAT RIDGE POLICE PENSION FUND PLEASE PRINT YOUR NAME AND ADDRESS CHECK IN FAVOR OPPOSED IF YOU REED MORE ROOM PLEASE SIGN ON BACK OF PAGEl Disclosure of Potential Conflict of Interest Madame Mayor and members of the Council, I have been advised by the City Attorney that I should disclose that I have a family member who is an employee of the City. I make this disclosure as required by Charter Section 3.14. I would ask the City Attorney to comment on the need for this disclosure. Dahl. Charter Section 3.14 only requires disclosure of the facts, which may be a conflict. In this case, the action before the Council is the entire City budget document. In this context, the vote on the matter will not be on any specific salary. This circumstance has come up in previous years with family members who are city employees. The City, like the state and most municipalities, does not have any "anti-nepotism" law, which would prevent family members from being City employees. I conclude that, while the disclosure is required, now that it has been made, Council member DiTullio is entitled to vote on the budget. Note: Charter SectlOn 3 14 requires Council members to disclose "material or significant" financial interests they have with the City, Once the disclosure is made. it is up to the Council to take any action it deems necessary, which could range from no actIOn at aIL up to a motion requiring the member to abstain from voting on the matter, all depending upon the indiVIdual facts of the case. GED\53027\4527061 CITIZENS' RIGHT TO SPEAK DATE: October 13. 2005 ANY PERSON MAY SPEAK ON MATTERS FOR A MAXIMUM OF THREE MINUTES, UNLESS ADDITIONAL TIME IS GRANTED BY AGREEMENT OF COUNCIL. EACH SUCH PERSON MUST SIGN THE PUBLIC COMMENT ROSTER, STATING NAME, ADDRESS. AND TOP1:C OF COMMENT. NAME ADDRESS TOPIC t.. r~-~ .L~~~ ":j~~Wr;~~"~2~~",.,,.,.,W'~i; ~.~1~l?;y 1.'L..~- fl,- '"",,-,,' , ." , .. "'.' ',.. .... .. .,. , "',~' -. - ""\:""''''''', ,;._,.~,..., . '; ,tIt~Ji :" , ... " ~ . .~. , / /..L' J. - ~ / J ~o ?r~-4' '. ~ $ .. ~:~i.:. ;';" ,,,.:,.c _.,"~k~ ,5":V; .,. ,.~'" ...,. b 1YC;'c:.?77' 7 . Zt:= 1 ..:JV ~~~ CITY OF WHEAT RIDGE, COLORADO September 26, 2005 Mayor Cerveny called the Regular City Council Meeting to order at 7 00 p m Councilmembers present: Karen Adams, Karen Berry, Jerry DiTullio, Dean Gokey, Lena Rotola, Wanda Sang, Larry Schulz, and Mike Stites Also present: City Clerk, Pamela Anderson, City Manager, Randy Young, City Attorney, Gerald Dahl, Deputy City Manager Patrick Goff; Director of Community Development, Alan White, Director of Public Works, Tim Paranto, staff; and interested citizens APPROVAL OF MINUTES OF September 12,2005 Motion by Mr DiTullio for the approval of the Minutes of September 12, 2005, seconded by Mr Schulz and Mrs Sang, carried 8-0 PROCLAMATIONS AND CEREMONIES Mayor Cerveny read Proclamations for' - Physical Therapy Month - October 2005, the proclamation was presented to Bob Cranny of Arvada/Wheat Ridge Physical Therapy. Constitution Week - September 17 - 23, 2005 Mike Baran, co-Chair of the Wheat Ridge Carnation Festival Committee, presented commemorative plates for the Police Department, the Parks and Recreation Department, and the Public Works Department for the efforts to help make the Carnation Festival a success He also presented the ribbon and certificate awards for the Curb Appeal contest. The awards went to District I District II District III District IV Roger and Betty Baker Rosemary Mancinelli (award accepted by Councilor Rotola) Asia Morozs Alvin Horton CITIZENS' RIGHT TO SPEAK Carol Taylor, 9750 West 36th Avenue, spoke on behalf of the mayoral candidacy of Jerry DiTullio CITY COUNCIL MINUTES SEPTEMBER 26, 2005 Page -2- Item 1. CONSENT AGENDA A. RESOLUTION 46-2005 - APPROVING AN INTERGOVERNMENTAL AGREEMENT FOR AMBULANCE SERVICES AMONG THE CITY OF WHEAT RIDGE, THE WHEAT RIDGE FIRE PROTECTION DISTRICT AND PRIDEMARK PARAMEDIC SERVICES B RIGHT OF WAY ACQUISITION FOR WEST 42ND AVENUE. Consent Agenda was introduced and read by Mrs. Adams Mr Gokey asked to pull Item 1 A. Motion by Mrs Adams for approval of Item 1 B, seconded by Mr Stites and Mrs Sang, carried 8-0 Motion by Mr Gokey to approve Resolution 46-2005, seconded by Mrs Adams, carried 8-0 PUBLIC HEARINGS AND ORDINANCES ON SECOND READING Item 2. PUBLIC HEARING ON THE PROPOSED 2006 BUDGET The item was introduced by Mrs Rotola City Clerk Pam Anderson read the executive summary - Deputy City Manager Patrick Goff made the staff report and PowerPoint presentation The PowerPoint presentation is available for review on the City's web-site at www ci wheatridge co us There were no citizens present to speak. Item 3. COUNCIL BILL 15-2005 - AN ORDINANCE AMENDING CHAPTER 2 AND CHAPTER 26 OF THE WHEAT RIDGE CODE OF LAWS PERTAINING TO PLANNING COMMISSION'S ROLES IN VARIOUS LAND USE PROCESSES AND APPEALS OF CERTAIN PLANNING COMMISSION DECISIONS Mayor Cerveny opened the public hearing Council Bill 15-2005 was introduced on second reading by Mrs Sang, City Clerk Pam Anderson assigned Ordinance No. 1352 and read the executive summary Meredith Reckert, Senior Planner, presented the staff report. No public comment was made Mayor Cerveny closed the public hearing CITY COUNCIL MINUTES SEPTEMBER 26, 2005 Page -3- Motion by Mrs Sang to approve Council Bill 15-2005 (Ordinance No 1352) on second reading and that it take effect 15 days after final publication, seconded by Mr DiTullio, carried 8-0 ORDINANCES ON FIRST READING Item 4. COUNCIL BILL 17-2005 - AN ORDINANCE AMENDING CHAPTER 19 OF THE WHEAT RIDGE CODE OF LAWS CONCERNING THE WHEAT RIDGE POLICE PENSION FUND Council Bill 17-2005 was introduced on first reading by Mrs Sang Motion by Mrs Sang to approve Council Bill 17-2005 on first reading, order it published, public hearing set for Monday, October 10, 2005 at 700 P m in the City Council Chambers, and that it take effect 15 days after final publication, seconded by Mrs Rotola, carried 8-0 DECISIONS. RESOLUTIONS AND MOTIONS Item 5. RESOLUTION 47-2005 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WHEAT RIDGE CONCURRING WITH THE PHASING AND FUNDING OF THE 1-70/32ND AVENUE INTERCHANGE SYSTEM LEVEL FEASIBILITY STUDY - Resolution 47-2005 was introduced by Mr Stites Mrs Anderson read the executive summary Motion by Mr Stites to approve Resolution 47-2005, seconded by Mrs Adams and Mrs Sang, carried 8-0 CITY MANAGER'S MATTERS Mr Young gave an update on the Cabela's project. The Transportation Commission will consider the system level feasibility alternatives, and then the environmental assessment process will continue over the next twelve to eighteen months Mr Young further stated that this feasibility study as well as other information can be found on the Cabela's website at www cabwheatridge com, There is also a link from the City's website to the Cabela site with accompanying maps ELECTED OFFICIALS' MATTERS Motion by Mrs Sang to bring in an amendment to the International Building Code to change the 90% efficiency furnace requirement to 80%, seconded by Mr DiTullio Motion to amend by Ms Berry to bring the issue to a future study session, seconded by Mr Schulz; carried 7-1 with Mr Stites voting no Original motion as amended carried 7-1, with Mrs Adams voting no CITY COUNCIL MINUTES SEPTEMBER 26, 2005 Page -4- Meeting adjourned at 8.23 p m APPROVED BY CITY COUNCIL ON OCTOBER 10, 2005 BY A VOTE OF to Lena Rotola, Council President The preceding Minutes were prepared according to S47 of Robert's Rules of Order, i e they contain a record of what was done at the meeting, not what was said by the members Tape recordings and video recordings of the meetings are available for listening or viewing in the City Clerk's Office, as well as copies of Ordinances and Resolutions - ITEM NO' ~ REQUEST FOR CITY COUNCIL ACTION I~$~ ~ 111-1 all ~ COUNCIL MEETING DATE: October 10, 2005 TITLE: Council Bill 17-2005: ORDINANCE AMENDING CHAPTER 19 OF THE WHEAT RIDGE CODE OF LAWS CONCERNING THE WHEA T RIDGE POLICE PENSION FUND. rg] PUBLIC HEARING o BIDS/MOTIONS o RESOLUTIONS o ORDINANCES FOR 1ST READING rg] ORDINANCES FOR 2ND READING Quasi-Judicial. o Yes rg] No In;d;: ~ Police P61sion Fund Board Chairman ~iQ) City Mana ~ - EXECUTIVE SUMMARY: The sworn personnel of the police department participate m The City of Wheat Ridge Money Purchase Pension Plan for Designated Police Department Employees (also known as the Wheat Ridge Police PensIOn Fund). 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 Mayor, City Clerk, City Treasurer, Chief of Police, and two pension plan partICipants. The current pension plan must be restated and submitted to the Internal Revenue Service as detailed below. In preparation for adoptIOn of the Restated Pension Plan, the followmg amendments to Chapter 19 of the Wheat Ridge Code of Laws must be considered: '" Amend SectIOn 19-51(a) to define plan membership ,. Amend Section 19-51 (b) to delete language specific to the previously adopted plan '" Amend Section 19-52(b) to add an additional elected sworn participant Police Pension Board member and establish the procedure for staggered terms, Attached please find the draft ordmance with the recommended changes for your conSideration. COMMISSION/BOARD RECOMMENDATION: The Wheat Ridge Pohce Department PensIOn Fund Board recommends approval of the proposed ordinance changes. STATEMENT OF THE ISSUES: It was determmed 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 determmatlOn 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 pohce pension board failed to properly and timely amend the Plan and receive required favorable determmation letters from the Inlernal Revenue Service on behalf of the Plan. As a result, the Plan had to be reviewed and restated. Pnor to submission to the Internal Revenue Service, the restated plan must be approved by the active pension plan participants. There are currently sixty-three (63) active pension plan participants. The Plan requires at least sixty-five percent (65%) of plan participants cast ballots m 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 ofthe survey showed participant support for these changes. Those portions of Ihe restated plan before the City CounCil that will reqUire City Ordinance changes are' . SectIOn 19-54. Voluntary contributions will be discontinued as of December 31, 2005 . SectIOn 19-52 An additIOnal sworn officer will be added to the Pension Board. . Sections 19-51, 19-52 and 19-53 Administrative "clean up" of ordinance language pertaining to the description of the pensIOn fund, and the elimmation ofthe phrase concerning police dispatchers, o There are no police dispatchers in the department who were hired prior to January 1, 1979, ALTERNATIVES CONSIDERED: None. City Code SectIOn 19-52 (e) provides that "at such time 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". FINANCIAL IMPACT: There is no additional financial impact anticipated upon the City as a result of these ordinance changes. RECOMMENDED MOTION: "I move to approve Council Bill 17-2005. An Ordinance amending Chapter 19 of the Wheat Ridge Code of Laws Concerning the Wheat Ridge Police Pension Fund, on second reading, and that it take effect immediately." or, "I move to table mdefinitely Council Bill 17-2005 for the following reason(s) " - Report Prepared by: ReViewed by: Joe Cassa, Wheat Ridge Police Pension Board Chairman Daniel Brennan, Chief of Police Attachments: 1. Council Bill 17-2005 2, City Code Article III. Pension Fund CITY OF WHEAT RIDGE, COLORADO INTRODUCED BY COUNCIL MEMBER SANG Council Bill No. 17-2005 Ordinance No. Series of 2005 TITLE: AN ORDINANCE AMENDING CHAPTER 19 OF THE WHEAT RIDGE CODE OF LAWS CONCERNING THE WHEAT RIDGE POLICE PENSION 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. ~ 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 polico dispatchers hired prior to January 1, 1979. WRCA 029 ATTACHMENT 1 (b) The pension fund established herein shall be in the form of a money purchase plan. The phrase "money purchase plan" means a program under which member and city contributions arc accumulated with interest to purchase a benefit at retirement. The benefit amount is determined by actuarially converting the accumulated sum in a member's retirement account into a monthly bonofit based on uniform actuarial assumptions appro'lod by tho board for cuch plans. The term PLAN does not include a plan which provides for minimum benefits or other defined benefits. Section 2. Subsections 19-52(a)(b) and (e) of the Wheat Ridge Code of Laws are amended to read as follows: Sec. 19-52. Operation. (a) The POLICE PENSION FUND policomon's monoy purch:lso 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 8E*t-]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 two (2) 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 twG- THREE-year term, so that the v....o (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 THREE (3) YEAR TERM, AND THE CANDIDATE RECEIVING THE SECOND HIGHEST NUMBER OF VOTES SHALL BE ELECTED FOR A TWO (2) YEAR TERM. WRCA 026 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)(0) 931-30.5-101 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. And all polico dispatchors hirod prior to January 1, 1979. 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. (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 WRCA 026 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 ----8- to --D- on this 2.6..th day of September , 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 October 10 , 2005, at 7:00 o'clock p.rn, 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 ATTEST: day of ,2005. PAMELA Y. ANDERSON, CITY CLERK GRETCHENCERVEN~MAYOR APPROVED AS TO FORM BY CITY ATTORNEY GERALD E. DAHL, CITY ATTORNEY 1 st Publication: September 29, 2005 2nd Publication: Wheat Ridge Transcript Effective Date' WRCA 026 ARTICLE III PENSION FUND* Page 1 of 3 ARTICLE III. PENSION FUND* *State law references: Policemen's pension fund, C.R.S. S 31-30-301 et seq 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 police dispatchers hired prior to January 1, 1979 (b) The pension fund established herein shall be in the form of a money purchase plan. The phrase "money purchase plan" means a program under which member and city contributions are accumulated with interest to purchase a benefit at retirement. The benefit amount is determined by actuarially converting the accumulated sum in a member's retirement account into a monthly benefit based on uniform actuarial assumptions approved by the board for such plans, The term does not include a plan which provides for minimum benefits or other defined benefits. (Code 1977, S 18-38, Ord, No. 1989-803, S 1, 8-14-89) - Sec. 19-52. Operation. (a) The policemen's money purchase 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 [S 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 two (2) 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 two-year term, so that the two (2) elected board members serve staggered terms as trustees. The trustees shall receive no pay for services as members of the board. (c) In serving as trustees of the pension fund hereby established, said trustees shall be vested with all powers and authority granted by law and those powers which are reasonably necessary to carry forward the function of serving as trustee of such fund. The police pension board shall have full and complete control of all funds in the money purchase plan and shall utilize their best efforts to ensure that all funds are maintained and invested for the benefit of the members of the money purchase plan. (d) The police pension board shall have express authority to establish a plan consistent with applicable state law and the terms of this article to accomplish the ends specified herein In the operation of the police pension fund, the same is and shall be separate and distinct from the pension fund operated by and controlled by the state. In carrying out its duties, the police pension board may employ as a consultant any person whose expertise is deemed needed by the members of the board. The police pension ATTACHMENT 2 http.l/library6.municode.comJgateway dll/co/colorado/1232/13 21/1324 ?f=temp]ates$fn=do 9/15/2005 ARTICLE III PENSION FUND* Page 2 or 3 board shall make all necessary rules and regulations for managing and discharging its duties as trustees of the money purchase plan, so long as all of said rules and regulations are consistent with the applicable state law and the provisions of this article A record of all actions taken by the board in carrying out its duties shall be kept and preserved, and shall be maintained as a public record of the city. (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 provided in C.R.S S 31-30-1 003.2(2)(c). 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. (Code 1977, S 18-39; Ord. No. 1989-803, S 2,8-14-89) 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, and all police dispatchers hired prior to January 1, 1979. 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. (b) In addition to the monies provided for in this section, such fund shall consist of all monies that may be given to such board or fund by any person for the use and purpose for which such fund is created, Such board of trustees may take, by gift, grant, devise or bequest, any money, personal property, or real estate or interest therein, as trustees, for the uses and purposes for which the fund is created. (Code 1977, S 18-40) Sec. 19-54. Same--Officers. (a) The members of the police department shall from their respective monthly salaries contribute into the police pension fund a percentage of their respective monthly salaries which is not less than the percentage paid into the fund by the city so that the contribution of the police department as a whole shall match the contribution of the city, (b) 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 (Code 1977, S 18-41) Sec. 19-55. Same-Refund. Should any member of the police department who has contributed to the fund established hereby leave the service of the city, said member shall receive a full refund of all contributions made by him to the fund, plus any amounts contributed by the city and to which http://library6.municode.comlgateway dllfco/colorado/ 1232/13 21/ 1324 ?f=temolates$fn=do 9/15/2005 ARTICLE III PENSION FUND* Page 3 of 3 the member has a vested right according to the vesting schedule contained within the plan document specified herein. (Code 1977, S 18-42) Secs 19-56--19-75, Reserved. - http://Iibrary6 municode com/gateway dll/co/colorado/1232/1321/1324 ?f=temp1ates$fn=do 9/15/2005 ITEM NO: 0~, REQUEST FOR CITY COUNCIL ACTION COUNCIL MEETING DATE: October 10, 2005 TITLE: COUNCIL BILL NO. 16-2005 , AN ORDINANCE PROVIDING FOR THE APPROVAL OF REZONING FROM PLANNED INDUSTRIAL DEVELOPMENT (PID) AND INDUSTRIAL (I) TO PLANNED MIXED USE DISTRICT (PMUD) FOR PROPERTY LOCATED AT 5060 WARD ROAD (CASE NO. WZ-05-07/IBC HOLDINGS) o PUBLIC HEARING o BIDS/MOTIONS o RESOLUTIONS [8J ORDINANCES FOR 1ST READING (Date: Oct. 10, 2005) o ORDINANCES FOR 2ND READING - Quasi-Judicial. [8J 0 . Yes No 4dJL R'n~~~g" Alan White, Community Development Director EXECUTIVE SUMMARY: IBC Holdings is requesting a rezoning from Planned Industrial Development and Industrial to Planned Mixed Use Development for the property located at 5060 Ward Road, more commonly known as the former Jolly Rancher property The subject parcel is 635,434 square feet in size (14.58 acres) The current Planned Industrial Development allows a very limited range of uses, all of which are related to candy or food manufacturing. A small portion of the property is zoned Industrial. The proposed zone change will allow a much wider range of uses for the entire property, An Outline Development Plan, Final Development Plan and Final Plat will be submitted for review at second reading. The Outline Development Plan will establish allowable uses and development standards, while the Final Development Plan will set a site specific development pattern for the property The Final Plat will subdivide the property into 17 lots. The buildings are being designed as office/warehouse space and flex office space. The property is being developed in three phases: Phase I (the "middle" of the property), Phase IT (adjacent to Ward Road) and Phase III (the eastern portion of the property). The proposed rezoning affects the Council's goal of preparing the City for growth and opportunities. COMMISSIONfBOARD RECOMMENDATION: The Planning Commission held a hearing on this request on September 15, 2005 and continued the hearing in order for staff and the applicant to resolve differences in allowable land uses and the need for certam street improvements. The Planning Commission hearing was continued to October 6, 2005. The Commission's recommendation will be forwarded to City Council priorto first reading. STATEMENT OF THE ISSUES: Land Use The subject property is currently zoned Planned Industrial Development; with the only uses allowed being candy manufacturing and food processing. The Comprehensive Plan Future Land Use Plan designation for this property is Planned Business/Industrial Park. Department staff has been working with the applicant for over a year and one-half, prior to and after their purchase of the property from Hershey's, Our counseling has been consistent with the Comprehensive Plan Future Land Use Plan designation. In February of this year we were provided a copy of the Corridor Definition Report for the Gold Line, In it the end of the line station for the Gold Line is shown east of Ward Road south of 50th Place, directly south of the subject parcel. This station location was moved from Ward Road/I-70 Park-n-ride. - The station location provides an amenity for potential Transit Oriented Development (TOD) in the vicinity The applicant has made some changes to the ODP as requested by staff to provide more pedestrian oriented, mixed use development in the future. These changes included reduced setbacks, increased building heights and adding residential uses as allowed uses. The applicant intends to pursue the development of office/warehouse flex space in Phase I in the center of the project. Whether this type of employment base is transit friendly is not known and has not been demonstrated in the region. Uses such as contractor's yards and mini-warehouses do not seem to be transit friendly. On the other hand, these types of uses could provide interim uses that would be relatively inexpensive to replace in the future. Successful TODs elsewhere in the country typically adhere to four guiding principles: . Pedestrian orientation; automobile is de-emphasized . Architecture to evoke strong emotion, timelessness . Provide services the market wants . Provide diverse markets for housing The proposed ODP, while setting out development standards and uses that enable TOD in the future, is auto oriented. There are no pedestrian links between buildings. The demand for these types of spaces in this location is unknown, It should be noted that adjacent industrial facilities, while older and questionable in condition, have a fairly high vacancy rate. Timing of Development The Gold Line is forecasted to be completed by the end of 2015, ten years from now. It is important to note that while the light rail station is ten years away, this is the only light rail station proposed for Wheat Ridge, It is umealistic to expect the applicant to do nothing with the property while waiting for the market for TOD to emerge. On the other hand, permitting the construction of buildings with useful lives of 30 years or more sets the stage for industrial development in this area of the City If this is the land use when the station is built, the station may be nothing more than a platform with an adjacent park-n-ride. The EIS process for the Gold Line is to start early in 2006. During this process the station location will be finalized and it will be in this process that the City has input about its plans for future land uses, street connections, pedestrian linkages, and all of the other development issues that can affect the design and location of the station. Subdivision of the property will make re-assemblage in the future a challenge, should a developer decide the market is right for redevelopment of the property. - Architecture Tilt-up concrete is an allowed material in industrial areas per the Streetscape and Architectural Design Manual. The architecture proposed for Phase I is admittedly of higher quality than typical industrial architecture. Articulation will be provided by reveals in the fa<;ade and the use of color, not with a change of materials, building planes, or rooflines. All of the buildings in Phase I will look the same. Tilt-up concrete does not lend itself to second story additions. To convert Phase I to live-work spaces or residential above commercial spaces, they would need to be tom down. Would the market in the future support such economics? That is hard to predict. The building orientation does not provide an inviting sense of place. A majority of the buildings have internal facing entrances. When looking east from Ward Road, the sides and rears of buildings are the visible elevations. Outdoor storage areas are also visible from Ward Road, Any future development in Phase II could screen the buildings and storage areas, but it is difficult to predict when this will happen, as the applicant does not have development plans for Phase II. Staff recommended that materials used in Phase II along Ward Road be limited to brick (or similar materials), as well as requiring the southernmost buildings in Phase I to be rotated to face south, be brought up to the street, and be faced with brick. This could be the start of pedestrian oriented street along 50th Place across from the transit station. The applicant has not made the change as the orientation as suggested does not lend itself to industrial development, Access and Circulation Access is provided primarily from 50th Place and 52nd A venue, with the potential for a right- in/right-out only access on Ward Road in the future Staff believes a public street connection between 50th and 52nd is needed, especially in the future when the transit station is bUIlt. The applicant was not receptive to providmg a north-south connector, as it would alter the current development pattern. The 50th and Ward intersection won't warrant a signal for many years, if ever. Most employees in this project and the surrounding uses will want to use the signalized intersection at 52nd and Ward. This is acknowledged in the traffic report by the assignment of a higher percentage of the generated out trips to 52nd Avenue. How do the vehicles get to 52nd? Through parking lots or drive aisles, making a minimum of three to four 900 turns. People will use these routes whether they work in the project or not. It would be safer and more efficient to provide for the movement between 50th and 52nd with a public street. Public Works requested two roadway improvements be made as a part of this application. First, that an acceleration and deceleration lane will be required on West 52nd A venue for eastbound traffic The applicant responded that the accel/decellane is not necessary. Secondly, a northbound deceleration lane on Ward Road will be required at 50th Avenue. The applicant acknowledged the need for the lane, but stated that because insufficient right-of-way a new lane is not possible. If sufficient right-of-way is not present, the applicant should be required to obtain the additional land for construction of the lane. The City Attorney has agreed with this assessment. ALTERNATIVES CONSIDERED: - Table the Bill indefinitely, denying the request. FINANCIAL IMPACT: The City has received a one-time application fee for the land use application. When redevelopment occurs, the City will receive one-time building permit fees and use taxes on construction materials. If any retail uses locate within this development, the City would receive any sales tax generated from retail sales. Annual use tax revenue would be generated by businesses to which the use tax on equipment applies. RECOMMENDED MOTIONS: "I move to approve Council Bill No, 16-2005 case number WZ-05-07, a request for a rezoning from Planned Industrial Development and Industrial to Planned Mixed Use District on first reading, order it published, public hearing set for November 14, 2005 at 7:00 in the City Council Chambers." OR "I move to continue Council Bill No. 16-2005 case number WZ-05-07, a request for a rezoning from Planned Industrial Development and Industrial to Planned Mixed Use District on first reading for property located at 5060 Ward Road until such time as the request can be heard in its entirety by the newly elected City Council." Report Prepared by: Travis Crane 303.235,2849 Reviewed by: Alan White 303,235.2844 Attachments: 1 Planning Commission Report (without exhibIts) 2. Planning Commission memo 3 Phasing Map 4. Council Bill No. 16-2005 - - CITY OF WHEAT RIDGE PLANNING DIVISION STAFF REPORT TO' Planning Commission CASE MANAGER: Travis Crane CASE NO. & NAME. WZ-05-07 & WS-05-02/illC DATE OF MEETING: September 15, 2005 ACTION REQUESTED' A request for approval of a rezoning from Planned Industrial Development and Industrial to Planned Mixed Use District, and a request for a l7-lot subdivision plat. LOCATION OF REQUEST' 5060 Ward Road APPLICANT (S): mc Holding Corp. OWNER (S): Same APPROXIMATE AREA. 635,434 sq ft, (14.58 ac,) PRESENT ZONING' Planned Industrial Development (PID) and Industrial (I) COMPRENHISVE PLAN DESIGNATION: Planned BusinesslIndustrial Park (BP) ENTER INTO RECORD: (X) (X) (X) COMPREHENSIVE PLAN ZONING ORDINANCE SUBDIVISION REGULATIONS (X) (X) CASE FILE & PACKET MATERIALS DIGITAL PRESENTATION - Location Map c..1 RC Jefferson County A.!}. PO 4(l AVE ,... <J> o m All notification and posting requirements have been met; therefore, there is jurisdiction to hear this case. Planning Commission WZ-05-07 & WS-05-02/IBC ATTACHMENT 1 1 I. REQUEST There are three requests involved with this application, a rezoning (with associated Outline Development Plan), a Final Development Plan and a Final Subdivision Plat. The applicant is requesting approval of a rezoning from Planned Industrial Development and Industrial to Planned Mixed Use DIstrict. The property IS the former site of the Jolly Rancher candy manufacturing plant. The current PID, which regulates a majority of the property, allows only candy manufacturing and associated uses. There is one remaining building on the property which will be renovated, The rest of the buildings have been demolIshed, An Outline Development Plan will rezone the property and set development standards, while a Final Development Plan will set a specific development plan for the property. The request also includes a 17 -lot subdivision plat (Exhibit 1, Letter of Request), The property owner wishes to initially construct six office/warehouse buildings and renovate an existing building on the property for office space, The Planned Mixed Use District is being requested due to the mix of industrial, commercial and residential uses allowed on the Outline Development Plan, The property is divided into three use areas (and three phases)' Use area 1 consists of three lots adjacent to Ward Road. Use area 1 will be phase II of the project. There are no immediate plans to develop this phase. Use area 2 consists of eight lots in the middle of the property. This will be phase I. There are immediate plans to construct six new buildings in this phase. Use area 3 is the eastern most portion ofthe property, This is phase III. There are no immediate plans to develop this phase. The property is 635,434 square feet in size, II. OUTLINE DEVELOPMENT PLAN The Outline Development Plan (ODP) will set all allowed uses and development standards for the property (Exhibit 2, ODP), The ODP also contains a general concept plan which labels areas of landscaping, parking, bUilding footprints, and access points. The ODP also describes the three use areas. Land Use The subject property is currently zoned Planned Industrial Development and Industrial. The current Development Plan only allows candy manufacturing and food processing. The Comprehensive Plan Future Land Use Map designation for this property is Planned Business/Industrial Park. Department staff has been working with the applicant for over a year and one-half, prior to and after their purchase of the property from Hershey's. Our counseling has been consistent with the Comprehensive Plan Future Land Use Plan designation. In February of this year we were provided a copy of the Corridor Definition Report for the Gold Line. In it the end of the line station for the Gold Line is shown east of Ward Road south of 50th Place, directly south of the subject parcel (Exhibit 3, RTD Gold Line Plan). This station location was moved from Ward Road/I-70 Park-n-ride, Planning Commission WZ-05-07 & WS-05-02/ffiC 2 The statlOn location provides an amemty for potential Transit Oriented Development (TOD) in the vicinity. The applicant has made some changes to the ODP as requested by staff to provide more pedestnan oriented, mixed use development in the future. These changes included reduced setbacks, increased building heights and adding residential uses as allowed uses. The applicant intends to pursue the development of office/warehouse flex space in Phase I in the center of the project. Whether this type of employment base is transit friendly is not known and has not been demonstrated in the region, Uses such as contractor's yards and mini-warehouses do not seem to be transit fnendly. On the other hand, these types of uses could provide interim uses that would be relatively inexpensive to replace in the future. Successful TODs elsewhere in the country typically adhere to four guiding principles: · Pedestrian orientation; automobile is de-emphasized . Architecture to evoke strong emotion; timelessness . Provide services the market wants . Provide diverse markets for housing - The proposed ODP, while setting out development standards and uses that enable TOD in the future, is auto oriented. There are no pedestrian links between buildings. The demand for these types of spaces in this location is unknown. It should be noted that adjacent industrial facilities, while older and questionable in condition, have a fairly high vacancy rate. Timing of Development The Gold Line is forecasted to be completed by the end of 2015, ten years from now. It is important to note that while the light rail station is ten years away, this is the only light rail station proposed for Wheat Ridge. It is unrealistic to expect the applicant to do nothing with the property while waiting for the market for TOD to emerge. On the other hand, pennitting the construction of buildings with useful lives of 30 years or more sets the stage for industrial development in this area of the City. If this is the land use when the station is built, the station may be nothing more than a platform with an adjacent park-n-ride. The EIS process for the Gold Line is to start early in 2006. During this process the station location will be finalized and it will be in this process that the City has input about its plans for future land uses, street connections, pedestrian linkages, and all of the other development issues that can affect the design and location of the station. Subdivision of the property will make re-assemblage in the future a challenge, should a developer decide the market is right for redevelopment of the property, Allowed Uses Page one of the ODP has a use chart reminiscent of the use chart in the zoning code. Uses are listed as either being pennitted ("P") or a special use ("S"). Uses which have a "P" would be pennitted as a use by right. Uses with an "s" would require a special use Planning Commission WZ-05-07 & WS-05-02/IBC 3 permit, as defined by the Code of Laws. If there is no letter adjacent to a certain use, it is not allowed. Uses differ by use area. For example, an eating establishment with a drive through window would be a permitted use in use area 1 (lots adjacent to Ward Rd.), but would not be allowed in use area 2 (internallots between W. 50th Ave. and W. 52nd Ave.), The allowed uses are extremely similar to the allowed uses in the lndustnal zone distnct m the zoning code, with the addition of residential uses as an allowed use, hence the Planned Mixed Use District designation. A note has been added to the ODP which specifies that residential density may not exceed 16 dwelling units per acre, There are some uses listed in the use chart that staff does not feel are appropriate, either in specific use areas or at all. These uses include: . automobile and light duty truck sales . contractor's service shops & storage yard . construction & heavy equipment sales, service, rental & storage . contractor's plant or storage yard . rental agencies . manufacture of vaccines, serums and toxins . mini warehouses for inside storage . motor fueling stations . motorcycle sales and service . schools for industrial or business training including vocational trade or professional schools . stone cutting or polishing . warehousing and outside storage - . warehouse Staff feels that these uses should be removed entirely from the ODP. Additionally, staff feels that outdoor storage should not be allowed for any lot in this proposed development. The applicant would like to include all of these uses and outdoor storage as an allowed use on the ODP. One of these uses (construction and heavy equipment sales, service, rental and storage) is listed both as an allowed use and a prohibited use on the ODP. If the use is included as an allowed use, it should be removed from the list of prohibited uses. Conversely, if it is recommended that the use be prohibited, it should be removed from the list of allowable uses, Stafffeels that some changes should be made to the use chart. First, that "eating establishment, sit down" should be an allowed use in use area 2. Given the proximity to Ward Road, and the construction of the Gold Line, it is possible that demand may be present for restaurants, Second, that "residential" should be an allowed use in all 3 use areas. "Residential" is listed as a speCial use in use area 1 and 3. Staff feels the mclusion of residential as a potential use in each use area is critical to transit oriented development. Planning Commission WZ-OS-07 & WS-OS-02/IBC 4 The ODP contains a note which references 'retail uses'. However, "retail" is not a listed allowable use in any use area. Staff feels that "retail" should be added as an allowed us in all 3 use areas, Staff feels that the following uses should be deleted from use area 3: . commercial machine shop . electrical supplies & service equipment storage . manufacturing, processing, assembly, or light industrial operations · manufacturing, fabrication and/or processing of concrete products · plumbing and heating supply stores and shops · printing, engraving and other related production processes · research laboratories, offices, and other facilities for research, sales, repair, rental and services of any commodity that the manufacture, fabrication, processing or sale of which is permitted in the district Landscaping The ODP sets standards for minimum landscaping by use area. Use areas 1 and 3 are to meet the current standards in the Code of Laws, The Code of Laws specifies that a minimum of 20% of each lot shall be landscaped, with one tree and ten shrubs for each 1,000 square feet of required landscaped area. AddItionally, street trees are required every 30 feet when adjacent to public right-of-way The Code includes provisions for buffering adjacent residential properties and parking lots. - The ODP specifies that use area 2 shall have a minimum of 15% landscaping, with emphasis given to the southern edge adjacent to West 50th Avenue. There is no requirement for minimum shrubs or trees. Staff would suggest that a note be added to the ODP which reads: "Required trees and shrubs as shown on the Final Development Plan. For all other landscape requirements, refer to Section 26-502 of the Wheat Ridge Code of Laws". This will provide clarity for future developers and city staff alike, While the 15% minimum landscape requirement is not far from the 20% standard, the distribution of the landscape area should be examined. This item will be discussed in the Final Development Plan analysis. Lot Coverage A maximum lot coverage of 85% is proposed on the ODP. Lot coverage is defined as all areas covered by building and paving. The Code of Laws specifies that for Commercial and Industrial zone districts, the maximum lot coverage is 80% of the lot. The increase to lot coverage is needed due to the decrease in landscaping coverage. This standard is being established for all 3 use areas. Parking A minimum parking standard is being established for office/warehouse use. The ODP specifies that one parking space shall be provided for each 1,000 square feet of warehouse or work area, plus one space for each 300 square feet of office area. This standard differs slightly from the standard in the Code of Laws. The Code of Laws specifies that one parking space shall be provided for each 600 square feet of warehouse Planning Commission WZ-05-07 & WS-05-02/IBC 5 area, plus one space for each 300 square feet of office area. All other uses and requirements would be regulated by Section 26-501 of the Code of Laws. This standard is applicable to all 3 use areas. Building HeighUSetbacks The maximum building height is being established at 50 feet, which IS consistent with the commercial and industrial zone districts. A 50-foot building height would allow for a more transit-oriented design with residential as a second or third story above retail and lor office uses, The maXImum building height is applicable to all 3 use areas, The minimum setbacks dIffer for each use area. Use area 1 has a IS-foot front yard build- to Ime. This would allow future buildings to be located 15 feet from Ward Road while parking occurs behind and to the side of the building. The minimum required side yard setback for use area 1 is 5 feet, and the required rear yard setback is 10 feet. Use area 2 has a minimum front yard setback of 20 feet, a zero-foot side yard setback and a five foot rear yard setback requirement. Use area 3 has a minimum front yard setback of 15 feet, a 5-foot side yard setback and a 10 foot rear yard setback requirement. There are no specific guidelines in the Code which refer to minimum setbacks for Planned Mixed Use Districts. The setback standards for the commercial and/or industrial zone districts can be used as a guide. The Code of Laws specifies that in commercial and industrial zone districts, front yard setback shall be a minimum of 30 feet, when the front yard is completely landscaped. Side yard setbacks in the commercial and industrial zone districts are a minimum of 5 feet, except that a zero foot setback may be allowed when constructing of non-flammable materials. The required rear yard setback in the commercial and industrial zone districts is 10 feet for the first story, and five feet for each additional story It is important to note that the applicant has chosen to define the 'front yard' as the elevation where the front door is located. This differs from the definition of 'front yard' in the Code of Laws; however, given the proposed building configuration it makes sense. It may be important to further examine the minimum side yard setback for lots 8 and 9. The ODP sets the side yard setback at zero feet. The southem side of each building is adjacent to West 50th Avenue, where a zero foot setback may not be appropriate, It may be beneficial to add a note to the ODP which establishes a minimum side yard setback when adjacent to public right-of-way. This can be accomplished by stating that for buildings adjacent to public right-of-way in use area 2, a minimum setback of 20 feet is required. Architecture The ODP sets architectural standards which differ by use area. For use area 1, four sided architecture is required. A list of methods for articulating the building fa<;ade is also listed, The required language for use area 2 lists similar methods to articulate the building fa<;ade. The existing building will be colored to match the surrounding buildings. For all lots, a list is given for acceptable building materials, This list includes brick, stone, architectural concrete, architectural metals, plaster and cast stone. Planning Commission WZ-05-07 & WS-05-02/IBC 6 During the review stages, staff felt that higher architectural standards should be set for use area 1 (the lots adjacent to Ward Rd.). Staff felt it appropriate to require construction of brick or similar materials, and that tilt-up concrete, concrete masonry unit (or block), metal, vmyl, irmtation brick or stone not be allowed as building materials. The architectural standards on the ODP would allow a tilt-up concrete building on the properties adjacent to Ward Road. Tilt-up concrete is an allowed material in industrial areas per the Streetscape and Architectural Design Manual. The architecture proposed for use area 2 is admittedly of higher quality than typical mdustrial architecture. Articulation will be provided by reveals in the fa<;ade and the use of color, not with a change of materials or building planes. All of the buildings in use area 2 will look the same. Tilt-up concrete does not lend itself to second story additions, To convert use area 2 to live-work spaces or residential above commercial spaces, they would need to be tom down. Would the market in the future support such economics? That is hard to predict. The building orientation does not provide an inviting sense of place. A majority of the buildings have internal facing entrances. When looking east from Ward Road, the sides and rears of buildings are the visible elevations. Outdoor storage areas are also visible from Ward Road. Any future development in use area 1 could screen the buildings and storage areas, but it is difficult to predict when this will happen, as the applicant does not have development plans for use area 1 - Staff recommended that materials used in use area 1 along Ward Road be limited to brick (or similar materials), as well as requiring the southernmost buildings in use area 2 to be rotated to face south, be brought up to the street, and be faced with brick. This could be the start of a pedestrian oriented street along 50th Place across from the transit station. The applicant has not made the change as the orientation as suggested does not lend itself to industrial development. Access/Circulation Access is provided primarily from 50th Place and 52nd Avenue, with the potential for a right-inlright-out only access on Ward Road in the future. Staff believes a public street connection between 50th and 52nd is needed, especially in the future when the transit station is built. The applicant was not receptive to providing a north-south connector, as it would alter the current development pattern. The 50th and Ward intersection won't warrant a signal for many years, if ever. Most employees in this project and the surrounding uses will want to use the signalized intersection at 52nd and Ward. This is acknowledged in the traffic report by the assignment of a higher percentage of the generated out trips to 52nd Avenue. How do the vehicles get to 52nd? Through parking lots or drive aisles, making a minimum of three to four 900 turns, People will use these routes whether they work in the project or not. It would be safer and more effiCIent to provide for the movement between 50th and 52nd with a public street. Public Works requested two roadway improvements be made as a part of this application. First, that an acceleration and deceleration lane will be required on West 52nd Avenue for eastbound traffic. The applicant responded that the acceVdecellane is not necessary. Secondly, a northbound deceleration lane on Ward Road will be required at 50th Place. Planning Commission WZ-05-07 & WS-05-02/IBC 7 The applicant acknowledged the need for the lane, but stated that because insufficient right-of-way a new lane is not possible. If sufficient right-of-way is not present, the applicant should be required to obtain the additlOnalland for construction of the lane The City Attorney has agreed with this assessment. There is currently 14 feet of right-of-way present from the edge of existmg asphalt. The right-of-way width tapers towards the north, at the intersection of West 50th Avenue and Ward Road, Any property acquisition would occur in this location, at the southeast comer of these two streets. Building Signage Two freestanding signs are allowed per the ODP - one sign on the West 50th Avenue frontage and one on the West 52nd Avenue frontage. The signs may be a maxImum of fifteen feet tall, setback from the right-of-way a minimum of ten feet. This is consistent with the Sign Code, The freestanding signs may not be pole signs; monument signs are required. The signs may be internally lit. The ODP does contain a note which refers to the Code for additional requirements, This reference to the Code becomes problematic in one aspect: the Sign Code does not allow off-premises signs. These are signs for businesses located on adjacent properties. By example, if the freestanding sign on West 52nd Avenue advertises for a business on lot 5, this is considered an off-premises sign. If the reference to the Sign Code remains on the ODP, staff recommends that a note should be added to the Development Standards section which allows off-premises sIgnage. The ODP does not specify the maximum size allowed for each freestanding sign, The Code of Laws bases the maximum freestanding size on building square footage, For multiple uses developments, a base of 300 square feet of freestanding signage is allowed, plus 1 square foot of signage for each 1,000 square feet of building square footage over 50,001 square feet. Based upon a total square footage of 105,010 square feet of buildings, each sign would be allowed to be 350 square feet in size. Staff would suggest that a note should be added to the ODP which sets a maximum size for each freestanding sign. Lighting The ODP refers to Section 26-503 of the Code of Laws for lighting regulations. Fencing The ODP refers to Section 26-603 of the Code of Laws for perimeter fence regulations. Performance Standards The ODP specifies that all rooftop mechanical equipment and all dumpster enclosures shall be screened, All loading docks and service entries shall be screened, This is consistent with the Code of Laws. Planning Commission WZ-OS-07 & WS-OS-02/IBC 8 Accessory Buildings A provision has been included for accessory building such as garages and sheds to be used only in conjunction with any future residential use. The accessory structures must meet the same setback requirement for primary structures. The maximum size is 400 square feet for sheds and 600 square feet for garages. A maximum height is being established at 15 feet. Metal exteriors are not allowed for either sheds or garages. These regulations are consistent with the R-3 regulations for accessory structures. III. CRITERIA Staff has the following comments regarding the criteria used to evaluate a change in zone: 1. That the existing zone classification currently recorded on the official zoning maps of the City of Wheat Ridge is an error. The existing zone classification on the official zoning map is not in error. The property currently has Industrial and Planned Industrial Development zoning. 2. That a change in character in the area has occurred due to installation of public facilities, other zone changes, new growth trends, deterioration, or development transitions, and that the evidence supports the finding of the following. - There has been no recent change in character to the area; however, a change in character is imminent. With the approval of FasTracks, it is known that a light rail stop will be located just south of the subject property City staff learned of this light rail stop location in February of 2005, after the pre-application meeting with the applicant. This station will serve as the end of the Gold line. Phase I of the proposed development will look and feel like an industrial park, which is not conducive to transit oriented development. While the potential employees may utilize the light rail for transportation to and from work, it is unknown to what extent. ., The applicant has agreed to include some uses which could make the development appear more like a TOD; however the Final Development Plan for Phase I essentially establishes an industrial character for the property. 3. That the change of zone is in conformance, or will bring the property into conformance, with the City of Wheat Ridge Comprehensive Plan goals, objectives and policies, and other related policies or plans for the area. The Future Land Use map in the Comprehensive Plan designates this property as planned BusinesslIndustrial Park. The proposed zone designation of Planned Mixed Use District does not fall within this classification, because the PMUD zone classification was not envisioned in the Comprehensive Plan. The Future land Use Map is one component of the Comprehensive Plan. The Plan also contains goals and policies concerning land use and transportation that need to be considered in finding consistency with the Comprehensive Plan. The proposed ODP is not in compliance with the following polices: Planning Commission WZ-05-07 & WS-05-02/IBC 9 . The City shall require that any future commercial development include continuous internal drives and continuous pedestrian paths connecting to adjacent businesses and streets wIthout directing traffic through adjacent residential neIghborhoods. . Allow light industrial uses only within unified, well-planned and approved industrial parks. . Only clean, quiet and nuisance-free light industrial uses that are self-contained with no visible outdoor storage shall be allowed within the City. . All new development or redevelopment that occurs within the City of Wheat Ridge shall be required to make both vehicular and pedestrian connections that are safe, functional, and serve to reduce the necessity to use a private automobile withm a quarter-mile radius. . From the Planned Business/Industrial Park descriptions: o These areas have access to 1-70 and are generally located north and west of the Interstate. These parks are designed as an integrated planned development under unified control and development standards. These parks are designed with a campus-like setting and contain clean, light industrial uses. Amemties such as outdoor sitting and eating areas and pathways should be encouraged on-site for employees. o Desired Character and Locational Characteristics: · Well planned and landscaped business or industrial parks that include employee break areas. o Desired Attributes: . Pedestrian connections within site and from site to adjacent uses. . Ensure that all new development provides internal streets, adequate circulations and pedestrian walkways that provide non-motorized connections to adjacent development and that integrate with the City's overall street and pedestrian network. In addition, one of the purposes of a planned development district is. . To minirmze traffic congestion on public streets, control street access, and to provide for well-designed interior circulation. 4. That the proposed change of zone is compatible with the surrounding area and there will be minimal adverse impacts considering the benefits to be derived. The request is for a rezoning to PMUD. Because this is a new zone district in the City of Wheat Ridge, there are no adjacent properties with identical zone classifications. However, the proposed development functions much more as an industrial park. Much of the surrounding properties have either Industrial or Planned Industrial Development zonmg. 5. That there will be social, recreational, physical and/or economic benefits to the community derived by the change of zone. This proposed zone change should create a benefit to the community. The current zone district allows only candy manufacturing and related uses, The proposed zone change will allow a wide range of commercial and industrial uses. 6. That adequate infrastructure/facilities are available to serve the type of uses allowed by the change of zone, or that the applicant will upgrade and provide such where they do not exist or are under capacity. All responding agencies are able to serve the property, and the developer will incur the cost and maintenance of any improvements. The Public Works Department is requiring Planning Commission WZ-05-07 & WS-05-02/IBC 10 additional nght-of-way dedicatIOn adjacent to Ward Road, which would allow for an eventual widening, when the time is appropriate. The Public Works Department is also requiring the installation of a deceleratIOn lane on Ward Road just south of West 50th Avenue. The applicant does not feel that the deceleration lane should be constructed, not due to lack of warrant, but due to lack of adequate right-of-way. Quite simply, if the right-of-way is not present, the applicant should be responsible to acquire the additional area needed from the current landowner. The traffic report confirms the need, and the applicant's traffic consultant agrees the need is present, however the applicant does not wish to construct the lane. An accel/decallane is also being required at West 52nd A venue for the length of the property. The applicant feels this lane is not needed, 7. That the change of zone will not adversely affect public health, safety or welfare by creating excessive traffic congestion, creating drainage problems, or seriously reducing light and air to adjacent properties. The change in zone will not affect public health, safety or welfare in the area. Traffic will increase significantly from existing conditions, and should be slightly higher than the previous use, This proposed development should not reduce air or light to adjacent properties. 8. That the change of zone will not create an isolated or spot zone district unrelated to adjacent or nearby areas. _ This change of zone will create an isolated zone district. There is only one other property in the City of Wheat Ridge zoned Planned Mixed Use District, and it is located at the southwest comer of West 38th Avenue and Depew Street. IV. FINAL DEVELOPMENT PLAN The goal of the Final Development Plan is to meet the standards set on the Outline Development Plan, The FDP is a much more site-specific document which addresses building location, parking and landscaping distribution and architecture (Exhibit 4, FDP). Only use area 2 (Phase I) is shown on the FDP. The applicant is proposing to construct six new buildings in Phase I. An existing building will be renovated, Phase I is divided into 810ts (lots 4-11). Lots 4-10 will contain buildings. Lot 11 will be used for drainage detention. Buildings 4 and 5 The applicant intends to construct and use the buildings for office/warehouse space. This is an allowed use on the ODP. Buildings 4 and 5 are similar in size and character. Building 4 will be 25,500 square feet in size, while building 5 will be 20,400 square feet in size. Building 4 faces north toward West 52nd Avenue. Building 5 faces south towards the interior of the property. Staff feels that the orientation of building 5 is not inviting and could create confusion among patrons. Both buildings 4 and 5 have substantial outdoor Planning Commission WZ-05-07 & WS-05-02/IBC 11 storage areas. As mentIOned in the ODP discussion, staff feels that outdoor storage in not an appropriate use for this property. The ODP set the maximum lot coverage (building footprint + paving) at 85% for each lot. This maximum is being exceeded on a few of the lots, due to the lack of landscaping. This item will be discussed in greater detail in the Landscaping discussion. The ODP specifies that buildmg 4 and building 5 shall have a 20 foot front yard setback requirement, a zero foot side yard setback reqUlrement and a 5 foot rear yard setback requirement. Each building meets and exceeds these minimum setback standards. The buildings are proposed to be between 24 and 26 feet tall. The existing building is in excess of 30 feet tall. The ODP allows a 50-foot building height. A loading area is being shown on the east side of building 4, The ODP requires all loading areas to be screened from the right-of-way. A screen wall has been provided, fulfilling this requirement. The south side of building 4 and the north side of building 5 (the rear of each building) have overhead loading doors shown. Buildings 6-9 Buildings 6-? will be similar in sIze and character as well. These buildings range between 7,510 square feet (buildings 8 and 9) and 10,300 square feet (buildings 6 and 7), Each of these buildings faces in towards the site, creating an uninviting environment. The sides and rears of these buildings will be the most visible elevations, This configuration could lead to confusion by patrons and visitors, Staff felt that buildings 8 and 9 could have been located closer to West 50th A venue, creating a neo-traditional design on the street frontage. This design would create a more pedestrian-friendly environment, which is desirable in a transit oriented development. The applicants wish to locate buildings 8 and 9 further back from the street and locate parking between the buildings and the right-of- way. - Building 7 contains an outdoor storage area on the east side of the building. As mentioned earlier, staff feels that outdoor storage is not appropriate for this property, Buildings 6, 7, 8 and 9 each have overhead loading doors. Staff is concerned with the location of the loading doors for buildings 8 and 9. The loading doors are located in such a way that if large trucks are making deliveries to these buildings, the north-south drive aisles adjacent to buildings 8 and 9 could be blocked. A single unit delivery truck has a total length of 30 feet. This type delivery truck will not be as problematic as a larger truck, such as a semi with a trailer. These trucks are generally 50 feet in length. It should be noted that the internal circulation for private property is not as crucial as circulation on or near public right-of-way. Buildings 6 and 7 have loading areas that are screened from the right-of-way, As mentioned in the Outline Development Plan discussion, staff feels it appropriate to shift buildings 8 and 9 further south so as to create a pedestrian friendly and TOD oriented design. The applicant wishes to have the buildings located further away from the street, as shown on the FDP Planning Commission WZ-05-07 & WS-05-02/IBC 12 Architecture Pages 5, 6 and 7 of the FDP detail the architecture for the buildmgs. Typical elevations have been shown for each building type. Buildings 4 and 5 are similar, and buildings 6, 7, 8 and 9 are similar The ODP set the architectural standards for Phase I. Standards were established for breaking up the building fa~ade and acceptable matenals were identified. Tilt-up concrete is an allowed material in industrial areas per the Streetscape and Architectural Design Manual and is allowed by the ODP. The architecture proposed for use area 2 is admittedly of higher quality than typIcal industrial architecture. Articulation will be provided by reveals in the fa~ade and the use of color, not WIth a change of materials, or building planes. All of the buildings in use area 2 will look the same. The architecture meets the requirements of the ODP. Landscaping The ODP establishes the minimum required landscaping at 15% of Phase I. The FDP details a total provided landscaping coverage of 22% of Phase I. The overall requirement for landscape quantity is being met; however, it is important to note that approximately 30% (22,411 square feet) of the overall landscaping is located within a detention pond to the east of Phase I. The landscaping is distributed unevenly throughout the lots; that is, the landscaping provided for lot 4 differs from the landscaping provided for lot 7, Lot 4 has 10% landscaping (7,125 square feet). Lot 5 has 8% landscaping (4,284 square feet). Lots 6 and 7 each have 12% landscaping. The applicants wish to emphasize the southern boundary of Phase I with landscaping. Lots 8 and 9 have 27% and 30% landscaping, respectively The existing building (lot 10) will have 21 % landscaping. - The decrease in landscaping on the intemallots creates a discrepancy between the minimum required landscaping and the maximum allowed lot coverage, For example, Lot 6 is 26,281 square feet in size. The maximum lot coverage (building + paving) is 85%, or 22,339 square feet. This means the remaining 15% (3,942 square feet) must be landscaped area, However, only 3,262 square feet is being provided as landscaped area for lot 6 Based on this, the actual lot coverage for lot 6 is 23,019 square feet, or 87% of the lot. This holds true for all lots with less than 15% landscaping (lots 4, 5, 6, and 7), Either the landscaping standards need to be lowered on a lot-by-Iot basis, or the maximum lot coverage should be increased for these lots. Quite simply, the standards on the ODP which are being established must be met on the FDP Lot 7 is required to include 5 trees. The submitted plans (and corresponding data table) detail only 4 trees on the property. This can be corrected by moving one tree from lot 10 slightly west to lot 7. Trees and shrubs are being provided at a ratio consistent with Code requirements, The Code (and the ODP reiterates) that one tree and 10 shrubs shall be provided for every 1,000 square feet of required landscape area. Each one of the lots meets these minimum requirements. Additionally, for lots adjacent to the right-of-way, one street tree is required for each 30 feet of street frontage, minus the distance of curb cuts. Each of the lots with public right-of-way frontage (lots 4, 8, 9 and 10) meet these minimum street tree requirements. Planning Commission WZ-05-07 & WS-05-02/IBC 13 Lot 11 (the detention facility) contains a total of 23 trees. This is consistent with the requirement in the Code and on the ODP. There are no shrubs on Lot 11, as the inclusion of 230 shrubs would compromise the ability of the detention pond. The total amount of shrubs distributed throughout lots 4-10 greatly exceeds the minimum requirements. Parking The ODP specifies that one parking space shall be provided for each 300 square feet of office space, and one parking space for each 1,000 square feet of warehouse space. All other uses should refer to the Code of Laws. The applicant has indicated that the office will encompass 20% of each unit, with the remaming balance being warehouse or shop area. These regulations are applicable to all lots in Phase I. Based upon this ratio, 21 parking spaces are required to accommodate the office area for building 4, Additionally, 17 parking spaces are needed to accommodate the warehouse/shop area, A total of 41 parking spaces are required for building 4. A total of 47 parking spaces have been provided for lot 4 Parking is located on the south side (front entrance) of building 5. Based upon the above parking ratios, 14 parking spaces are needed for the office use and 17 parking spaces are needed for the warehouse/shop area, for a total requirement of 33 parking spaces. A total of 34 parking spaces have been provided for lot 5. Parking is located directly adjacent to W. 52nd A venue for building 4. The Code of Laws reqUIres a ten-foot landscape buffer for parking lots adjacent to right-of-way. The proposed landscape buffer from the edge of right-of-way for lot 4 is 5 feet. Lots 8 and 9 have substantial landscape buffers between the parking areas and the right-of-way Lot 10 has approximately 8 feet of landscape buffer between the parking areas and the right-of- way. - All of the remaining lots meet the required parking ratios, with the exception of lot 6. Lot 6 is required a total of 17 parking spaces, but only 16 have been proVided. Lighting Page 8 of the FDP is a photometric lighting plan which details the exterior light distribution onsite. The figures provided are in foot-candles. The Code of Laws (and the ODP) requires that all light generated shall be contained onslte, Simply, that the foot- candle readings be "0.0" at the property lines. The submitted photometric plan complies substantially with the Code requirements, The proposed free-standing light fixtures are detailed on page 8 as well. The Code of Laws specifies that the maximum height for freestanding light fixtures shall not exceed 18 feet, measured from grade. The proposed light fixtures are 18 feet from grade. V. SUBDIVISION PLAT The plat will subdivide the property into 17 lots (Exhibit 5, Plat). There is no minimum lot size being established for any of the lots. Staff is concerned that the eastern lots (lots 12-17) are being platted without a specific development plan. It could be much more Planning Commission WZ-05-07 & WS-05-02/IBC 14 difficult to aggregate the lots for a larger development if they are in separate parcels and separate ownership Public dedication IS being reqUIred by the Public Works Department along the Ward Road frontage. This dedication is required to accommodate a full right-of-way width for Ward Road. The applicants have agreed to this right-of-way dedication, and it is being provided on the plat, VI. AGENCY REFERRAL Referral comments were received from the Valley Water District, Arvada Fire District, City of Arvada Community Development, Colorado Department of Transportation, Wheat Ridge Public Works Department, Wheat Ridge Building Division and Xcel Energy. All responding agencies have indicated that they can serve the property, and the applicant will bear the cost of upgrading any service to the property. Typical utility easements are being established around the perimeter of each lot. The City of Arvada provided the most detailed analysis of the proposaL The major concern raised by Arvada staff is that the proposed development is not taking advantage of a transit oriented development. Arvada staff felt that outdoor storage and warehousing were not compatible with transit oriented development, and that mini-storage, concrete plants, manufacture of vaccines, itinerant sales and exterminators should not be allowed uses. A drainage report has been submitted and reviewed by the Public Works Department. - The report is approvable, provided minor corrections are made to the drainage report and plans. The Public Works Department is requiring the construction of curb and gutter around the perimeter of the property. Sidewalks will be constructed on the West 50th Avenue and West 52nd Avenue frontages. VII. NEIGHBORHOOD MEETING The required neighborhood meeting was held prior to submittal. There were six attendees from the neighborhood, General questions ranged from the type of development which will occur to how drainage would be accommodated onsite. VIII. STAFF CONCLUSION & RECOMMENDED MOTION(S): There are three requests, each of which will require a separate motion. request for approval of a rezoning and outline development plan, request for approval of a final development plan and request for approval of a final plat. REZONING AND OUTLINE DEVELOPMENT PLAN OPTION A: "I move to recommend APPROVAL of Case No WZ-05-07, a request for approval of a rezoning from Industrial and Planned Industrial Development to Planned Mixed Use District, and an Outline Development Plan for property located at 5060 Ward Road, for the following reasons: Planning Commission WZ-05-07 & WS-05-02/IBC 15 1. The change in zone is compatible with the existing conditions in the immediate area, 2. The change in zone will not adversely affect the public health, safety or welfare. With the following conditions: 1. Outdoor storage shall be deleted from the list of allowed uses on the Outline Development Plan, and the areas shown as 'outdoor storage areas' for lots 4, 5 and 7 on page 2 of the Outline Development Plan shall also be deleted. A note shall be added to the Development Standards section of the Outlme Development Plan which reads: "Lots 1.2 and 3 - Four-sided architecture required - brick is strongly encouraged. Tilt-up concrete, eM. U., metal, vinyl, imitation brick, stone or rock exteriors are not allowed. No corporate design allowed. " Buildings 8- and 9 shall have the same architectural standards as Lots 1, 2 and 3, and the building envelopes shall be moved south towards West 50th Avenue and the parking areas shall be located on the north side of the buildings. The following uses shall be deleted from the list of Allowed Uses on the Outline Development Plan: "automobile and light duty truck sales, contractor's service shops & storage yard, construction & heavy equipment sales, service, rental & storage, contractor's plant or storage yard, rental agencies, manufacture of vaccines, serums and toxins, mini warehouses for inside storage, motor fueling stations, motorcycle sales and service, schools for industrial or business training including vocational trade or professional schools, stone cutting or polishing, warehousing and outside storage and warehouse" The deceleration lane on Ward Road south of West 50th Avenue shall be installed per the City of Wheat Ridge Public Works Department requirement. The accelJdecellane for eastbound traffic on West 52nd Avenue shall be installed per the City of Wheat Ridge Public Works Department requirement. The following uses shall be removed from the list of Allowed Uses on the Outline Development Plan for use area 3 (phase III): commercial ma,chine shop, electrical supplies & service equipment storage, manufacturing, processing, assembly, or light industrial operations, manufacturing, fabrication and/or processing of concrete products plumbing and heating supply stores and shops, printing, engraving and other related production processes and research laboratories, offices, and other facilities for research, sales, repair, rental and services of any commodity that the manufacture, fabrication, processing or sale of which is pennitted in the district" . 2, 3. 4 5. 6 7. Planning Commission WZ-05-07 & WS-OS-02/IBC 16 - 8. A note shall be added to the Outline Development Plan in Exterior Signage under Development Standards whIch addresses the maximum size allowed for each freestanding sign. 9. A note shall be added to the Outline Development Plan in Exterior Signage under Development Standards which reads: "Off-premises signage is allowed" 10 A note shall be added to the Outline Development Plan in Landscaping under Development Standards which reads: "Required trees and shrubs as shown on the Final Development Plan. For all other landscape requirements, refer to Section 26-502 of the Wheat Ridge Code of Laws". 1 1. The maximum lot coverage and minimum landscaping on lots 4, 5, 6, and 7 needs to be clarified and consistent with the actual provided quantities on the Final Development Plan, This will entail either increasing maximum lot coverage and decreasing minimum landscaping requirements for these lots, or decreasing maximum lot coverage and increasing minimum required landscaping for these lots. 12. The list of allowed uses shall include "retail" as an allowed use in all 3 use areas. 13 The list of allowed uses shall include "residential" as an allowed use in all 3 use areas. 14 The list of allowed uses shall include "Eating establishment, sit down" as an allowed use in use area 2 (Phase I) 15. A note shall be added to the Outline Development Plan under Required Setbacks in Development Standards which reads: "For use area 2 - side yard setback shall be a minimum of 20 feet when adjacent to public right- of-way." - OPTION B: "I move to recommend DENIAL of Case No. WZ-05-07, a request for approval of a rezoning from Industrial and Planned Industrial Development to Planned Mixed Use District, and an Outline Development Plan for property located at 5060 Ward Road, for the following reasons: 1. While consistent with the Future Land Use Plan designation, the application is not consistent with policies: A. Requiring continuous internal drives and continuous pedestrian paths connecting for adjacent businesses and streets B. Allowing industrial uses that are self-contained with no visible outdoor storage C. Requiring vehicular and pedestrian connections that are safe, functional and serve to reduce the necessity to use a private automobile within a quarter-mile radius D. Setting out the desired character and desired attributes of Planned Business/Industrial Parks E. That all new development provides internal streets, adequate circulation and pedestrian walkways that provide non-motorized connections to adjacent development and that integrate with the City's Planning Commission WZ-05-07 & WS-05-02/IBC 17 overall street and pedestrian network. 2. That the application does not fulfill one of the purposes of a planned development district, specifically to minimize traffic congestion on public streets, control street access, and to provIde for well-designed mterior circulation, 3, The application does not adequately mitigate traffic impacts on 52nd Avenue adjacent to the property and at the Ward Road and 50th Place intersection." OPTION C: "I move to continue Case No. WZ-05-07, a request for approval of a rezoning from Industrial and Planned Industrial Development to Planned Mixed Use District, and an Outline Development Plan for property located at 5060 Ward Road," FINAL DEVELOPMENT PLAN OPTION A: "I move to recommend APPROVAL of Case No. WZ-05-07, a request for approval ofa Final Development Plan for property located at 5060 Ward Road, for the following reasons: 1. With slight modification, the Final Development Plan will comply with the development standards established by the Outline Development Plan. 2. The Final Development Plan meets the technical requirements as established in Article III for Final Development Plans, With the following conditions. - 1 The areas shown as outdoor storage shall be removed from the planset. 2. Lot 6 shall be amended to include one more parking stall, as is required by the Outline Development Plan. 3 The maximum lot coverage and minimum landscaping standards shall be changed to reflect changes made on the Outline Development Plan, 4 One additional tree must be added to lot 7 to meet minimum requirements established on the Outline Development Plan. OPTION B: "I move to recommend DENIAL of Case No. WZ-05-07, a request for approval of a Final Development Plan for property located at 5060 Ward Road, for the following reasons: 1 While consistent with the Future Land Use Plan designation, the application is not consistent with policies: A. Requiring continuous internal drives and continuous pedestrian paths connecting for adjacent businesses and streets B, Allowing industrial uses that are self-contained with no visible outdoor storage C, Requiring vehicular and pedestrian connections that are safe, Planning Commission WZ-05-07 & WS-05-02/IBC 18 functional and serve to reduce the necessity to use a private automobile within a quarter-mile radius D. Setting out the desired character and desired attributes of Planned Business/Industrial Parks E. That all new development provides mternal streets, adequate circulation and pedestrian walkways that provide non-motorized connections to adjacent development and that integrate with the City's overall street and pedestrian network 2. That the application does not fulfill one of the purposes of a planned development district, specifically to minimize traffic congestion on pubhc streets, control street access, and to provide for well-designed interior circulation. 3. The application does not adequately mitigate traffic Impacts on 52nd A venue adjacent to the property and at the Ward Road and 50th Place intersection." OPTION C: "I move to continue Case No. WZ-05-07, a request for approval of a Final Development Plan for property located at 5060 Ward Road." FINAL PLAT OPTION A: "I move to recommend APPROVAL of Case No. WS-05-02, a request for approval of a seventeen lot subdivision plat for property located at 5060 Ward Road for the following reasons. - 1. 2, 3, All requirements of the Subdivision Regulations have been met. All required utility easements are being provided. Adequate infrastructure will be constructed with the development to serve the proposed use." OPTION B: "I move to recommend DENIAL of Case No. WS-05-02, a request for approval of a seventeen lot subdivision plat for property located at 5060 Ward Road for the following reasons: 1 " Planning Commission WZ-05-07 & WS-05-02/IBC 19 City of Wheat Ridge Community Development Department Memorandum TO: Planning Commission FROM: Travis Crane, Planner SUBJECT: Case No. WZ-OS-07 & WS-OS-02 DA TE: 29 September 2005 Case numbers WZ-05-07 and WS-05-02 are a request for a rezoning from Industrial and Planned Industrial Development to Planned Mixed Use Development, approval of an Outline Development Plan, a Final Development Plan and final plat. The subject property is located at 5060 Ward Road. At it's meeting on September 15, 2005, the Planning Commission continued the above-mentioned land use cases for the following reasons: - " ..to give the applicant and staff time to negotiate the exclusions as recommended by staff and the applicant's covenant controls in order to reach an agreement as to what should or should not be excluded, and additionally, give staff and applicant time to work on a compromise regarding recommendations and/or requirements relating to traffic issues concerning acceleration and deceleration lanes. " The intent of the motion was for staff and the applicant to discuss allowed uses, performance standards and required traffic improvements. In the original staff report, staff requested a number of uses should be excluded from the list of allowed uses on the Outline Development Plan. Additionally, staff recommended that two separate deceleration lanes should be constructed. Each issue will be discussed below m further detail. Allowed Uses In the onginal staff report, staff requested the following uses be removed as 'allowed uses' on the Outline Development Plan. · automobile and light duty truck sales · contractor's service shops & storage yard · construction & heavy equipment sales, service, rental & storage · contractor's plant or storage yard . rental agencies · manufacture of vaccines, serums and toxins · mini warehouses for inside storage . motor fueling stations . motorcycle sales and service Planning Commission October 6, 2005 ATTACHMENT 2 1 . schools for industrial or business training including vocational trade or professional schools . stone cutting or polishing . warehousing and outside storage . warehouse The following uses have been removed from the list of 'allowed uses" automobile and light duty truck sales, construction & heavy equipment sales, service, rental and storage, contractor's plant or storage yard, rental agepcies, manufacture of vaccines, serums and toxins, mmi warehouses for inside storage, motor fueling stations, motorcycle sales and service, stone cutting or polishing and warehouse, The following uses still remain as allowed uses: contractor's servIce shops and storage yard, schools for industrial or business training including vocational trade or professional schools, and warehousing and outside storage "Contractor's service shops and storage yards" have been retained as an allowed use at the request of the applicant. Staff does not oppose the inclusion of this use. "Schools for industrial or business training,.." has been modified as an allowed use to read: "schools for industrial or business training including vocational trade or professional schools conducted entirely indoors, unless specifically shown on the approved Final Development Plan" The additionallanguage was arrived at by staff and the applicant. Warehousing and outdoor storage remains as an allowed use at the request of the applicant. Staff still feels that outdoor storage is not appropriate. It is important to note that if outdoor storage is allowed as an ancillary use to warehousing, performance standards should be added to the Outline Development Plan which read: "outdoor storage shall be completely screened from view with a solid enclosure The height of stored materials shall not exceed the height of the enclosure. Chain link is not an allowed screening material. Solid screen walls are required" - In the original staff report, staff requested that the following uses be removed as 'allowed uses' for use area 3: . commercial machine shop . electrical supplies & service equipment storage . manufacturing, processing, assembly, or light industrial operations . manufacturing, fabrication and/or processing of concrete products . plumbing and heating supply stores and shops . printing, engraving and other related production processes . research laboratories, offices, and other facilities for research, sales, repair, rental and services of any commodity that the manufacture, fabrication, processing or sale of which is pennitted in the district The following uses have been removed from the list of 'allowed uses' in use area 3' commercial machine shops and manufacturing, processing, assembly, or light industrial operatIOns. The Planning Commission October 6, 2005 2 remaining uses have been changed to 'special uses' in the use chart. This was at the request of staff and agreed to by the applicant. Staff requested that a few uses should be added as allowed uses in certain use areas - speclfically, "retail", "eating establishment, sit down" and "residential". These have been added as allowed uses. Finally, staff feels that "office warehouse" is not an appropriate use for use area 1 (the pad sites adjacent to Ward Road), The applicant would like to keep "office warehouse" as an allowed use in all 3 use areas. Traffic Improvements In the original staff report, staff discussed the need for two separate deceleration lanes as a result of the impact generated by the redevelopment. The first deceleration lane was requested on Ward Road south of 50th Avenue. The trip generation for the site warrants the installation of the lane; however, the applicant felt that due to lack of adequate right-of-way, the lane should not be constructed. After further examination of the aerial photographs and the Ward Road right-of-way, the public works department has concluded that adequate right-of-way is present for the construction of the deceleration lane. The requirement for construction of this deceleration lane on Ward Road south of 50th Avenue is still valid, The memo generated by the Engineering Manager, Steve Nguyen, has been included as Exhibit A. this memo discusses the justification for each deceleration lane. The memo contains Mr. Nguyen's original comments in black, the applicant's response in blue and Mr. Nguyen's counter response in red, - The second deceleration lane was requested at West 52nd Avenue for eastbound traffic, The deceleration lane would be a continuation of an existmg lane which is located m front of the gas station to the west. The deceleration lane would terminate at the proposed access point on West 52hd A venue for the subject property. The trip generation for the site warrants the installation of the deceleration lane. Sil!;nal!;e The original staff report stated some clarification was needed in respect to free standing signage allowed. The Outline Development Plan which was reviewed by Planning Commission on September 15, 2005 included the following language: "Two free standing monument signs are allowed one on West 50th Avenue frontage one on West 52nd A venue frontage Pole signs are not allowed, Each sign may be a maximum of fifteen feet in height, setback at least ten feet from the street right-of-way. Each sign shall match bmlding architecture and coloring. Monument signs may be internally lit. Signs may not be located within the required sight distance triangle. For all other signage requirements and guidelines refer to Article VII of the Wheat Ridge Code of Laws." The revised Outline Development Plan simply states signage is regulated by Article VII of the Code of Laws (sign code). A note has been added which allows off-premises signage. Given this language, _ lots 1,2,3,4,8,9, 10, 12, 14 and 16 could all have freestanding signage, and all lots could advertise on any of these signs. It would be more desirable to have a few well designed signs that advertise for Planning Commission October 6, 2005 3 multiple tenants. Staff feels that given a development of this type, controlled, well designed signage should be provided. Staff has recommended that 3 freestanding signs shall be allowed - one on West 50th A venue, one on West 52nd A venue, and one on Ward road. Covenants Language has been added to the Outline Development Plan which addresses performance standards for each lot in the development area. The language included is from Section 26-505 of the Wheat Ridge Code of Laws (Industrial Performance Standards), These standards address appearance, noise, dust, fumes, glare, heat, and vibration. Conclusions A majority of the outstanding issues have been addressed and agreed upon by staff and the applicant. The remaining points of contention are' . The inclusion of outdoor storage as an allowed use . The inclusion of 'office warehouse' as an allowed use in use area 1. . The requirement for a deceleration lane on Ward Road south of West 50th A venue . The requirement for a deceleration land on West 52nd Avenue The original staff report with all exhibits has been included for reference. Recommended Motions There are three requests, each of which will require a separate motion: request for approval of a rezoning and outline development plan, request for approval of a final development plan and request for approval of a final plat. - REZONING AND OUTLINE DEVELOPMENT PLAN OPTION A: "I move to recommend APPROVAL of Case No. WZ-05-07, a request for approval of a rezoning from Industrial and Planned Industrial Development to Planned Mixed Use District, and an Outline Development Plan for property located at 5060 Ward Road, for the following reasons: 1 The change in zone is compatible with the existing conditions in the immediate area, 2. The change in zone will not adversely affect the public health, safety or welfare, With the following conditions: 2. Outdoor storage shall be deleted from the list of allowed uses on the Outline Development Plan, and the areas shown as 'outdoor storage areas' for lots 4, 5 and 7 on page 2 of the Outline Development Plan shall also be deleted, A note shall be added to the Development Standards section of the Outline Development Plan which reads: "Lots 1,2 and 3 - Four-sided architecture 1. Planning Commission October 6, 2005 4 - 3 required - brick is strongly encouraged. Tilt-up concrete, eM. U., metal, vinyl, imitation brick, stone or rock exteriors are not allowed, Corporate architecture must be modified to comply with the standards of the Streetscape and Architectural Design Manual. " Buildings 8 and 9 shall have the same architectural standards as Lots 1,2 and 3, and the buildmg envelopes shall be moved south towards West 50th Avenue and the parking areas shall be located on the north side of the buildings. "Office warehouse" shall not be an allowed use in use area 1. The deceleration lane on Ward Road south of West 50th Avenue shall be installed per the City of Wheat Ridge Public Works Department requirement. The acceVdecellane for eastbound traffic on West 52nd A venue shall be installed per the City of Wheat Ridge Public Works Department requirement. Page Two of the Outline Development Plan shall be amended to accurately reflect the proposed access point on West 52nd A venue. An association shall be created which governs maintenance of the collective propertIes. A note shall be added to the Outline Development Plan in Exterior Signage under Development Standards which reads. "Three free standing monument signs are allowed · one on West 50th A venue frontage · one on West 52nd Avenue frontage · one on Ward Road Pole signs are not allowed, Each sign may be a maximum of fifteen feet in height, setback at least ten feet from the street right-of-way, Each sign shall match building architecture and coloring. Monument signs may be internally lit. Signs may not be located within the required sight distance triangle. For all other signage requirements and guidelines refer to Article VII of the Wheat Ridge Code of Laws. Off-premises signage shall be allowed so that each business may have advertising on the freestanding signs." 4. 5. 6, 7. 8. 9. OPTION B: "I move to recommend DENIAL of Case No. WZ-05-07, a request for approval of a rezoning from Industrial and Planned Industrial Development to Planned Mixed Use District, and an Outline Development Plan for property located at 5060 Ward Road, for the following reasons. 1. While consistent with the Future Land Use Plan designation, the application is not consistent with Plan policies: A. Requiring continuous internal drives and continuous pedestrian paths connecting for adjacent businesses and streets B. Allowing industrial uses that are self-contained with no visible outdoor storage C. Requiring vehicular and pedestrian connections that are safe, functional and serve to reduce the necessity to use a private automobile within a quarter-mile radius D. Setting out the desired character and desired attributes of Planned Business/Industrial Parks E. That all new development provides internal streets, adequate circulation Planning Commission October 6, 2005 5 and pedestrian walkways that provide non-motonzed connections to adjacent development and that mtegrate with the CIty'S overall street and pedestnan network. 2. That the application does not fulfill one of the purposes of a planned development district, specifically to minirruze traffic congestion on public streets, control street access, and to provide for well-designed interior circulation. 3, The application does not adequately mitigate traffic impacts on 52nd Avenue adjacent to the property and at the Ward Road and 50th Place intersection." 4. A change in character in the area has not occurred. OPTION C: "I move to continue Case No. WZ-05-07, a request for approval of a rezoning from Industrial and Planned Industrial Development to Planned Mixed Use District, and an Outline Development Plan for property located at 5060 Ward Road." FINAL DEVELOPMENT PLAN OPTION A: "I move to recommend APPROVAL of Case No. WZ-05-07, a request for approval of a Final Development Plan for property located at 5060 Ward Road, for the following reasons. 1. With slight modification, the Final Development Plan will comply with the development standards established by the Outline Development Plan. The Final Development Plan meets the technical reqmrements as established in Article III for Final Development Plans, -- 2, With the following conditions: 1. The areas shown as outdoor storage shall be removed from the planset. 2. Lot 6 shall be amended to include one more parking stall, as is required by the Outline Development Plan. 3. One additional tree must be added to lot 7 to meet minimum requirements established on the Outline Development Plan. OPTION B.- "I move to recommend DENIAL of Case No. WZ-05-07, a request for approval of a Final Development Plan for property located at 5060 Ward Road, for the following reasons. 1. The Outline Development Plan has been recommended for denial. 2. That the application does not fulfill one of the purposes of a planned development district, specifically to minimize traffic congestion on public streets, control street access, and to provide for well-designed interior circulation, 3. The application does not adequately mitigate traffic impacts on 52nd Avenue adjacent to the property and at the Ward Road and 50th Place intersection." Planning Commission October 6, 2005 6 OPTION C: "I move to contmue Case No. WZ-05-07, a request for approval of a Final Development Plan for property located at 5060 Ward Road." FINAL PLAT OPTION A. "I move to recommend APPROVAL of Case No. WS-05-02, a request for approval of a seventeen lot subdivision plat for property located at 5060 Ward Road for the followmg reasons: 1. All requirements of the Subdivision Regulations have been met. 2, All required utility easements are being provided. 3 Adequate infrastructure will be constructed with the development to serve the proposed use " OPTION B: "I move to recommend DENIAL of Case No. WS-05-02, a request for approval of a seventeen lot subdivision plat for property located at 5060 Ward Road for the following reasons: 1. " - OPTION C. "I move to continue Case No. WS-05-02, a request for approval of a seventeen lot subdivision plat for property located at 5060 Ward Road." Planning Commission October 6, 2005 7 \J :r. )> (f) m w ------ \J :r. )> (f) m '" )> ?J ~ ~ \J :r. )> (f) t11 ~ .... I \ . -\ m>\ ~,,~: ~ r- r- b b r- ~ -U -4 ~ b b -U r- -n ~ - . S !a. !a. !a. :l: 0 :l: S .c. - . ~)f - - - - "'" . ..... ..... ..... ...... ...... ..... )> -\ CJ) I'J ..... ~ -\ m>\ - , ~ -I en U\ -l'> CJ) N (fl.)> Z C. if#< . . m r- m 9 ~ ~ - CJ) N *"" I . ... 0 m < ()-n ~ ~ c. -u -u .... N ~ ~ ~ ~ -t5 .... -l'> CJ) -l'> m ~S - (fl ~ ~ c;n ..... ~ (;l) en I'J ~ 5 Z m c;n --I -~ (" -CJ) -0) -~ -$ --I -0) 0 m -0 -.... lj; -u c.Co ~ ~ -u -u t 0) U\ 0) U\ en ~ ;Xl 0 0 ~ co CJ) -l'> CJ) .... Cl> U\ '" ~~ '" ~ -u ~ m (fl (fl (fl 4t (fl (fl (fl ~ ~ (fl (fl (fl (fl ~-u ?t )> ~ ~ -n -n -n -n -n -n -\ on -n <5~ (fl 0 -u Z;J: :l: ==i m -n ~ '" ~ ~ 0 m -n S C:II U), 0 -n () Z () ~ ~ ~ "'T\ 0 C m - ==i ~ ~ (fl 0 Z <5 (fl z (fl c z ~ -u (fl ==i ~ C 0 ==i m () - m () Z m ~ ~ 6 m (fl Z (fl c. -u ~ 0 ~ 0 z ATTAC,",,'''ENT 3 INTRODUCED BY COUNCIL MEMBER Council Bill No. 16 Ordinance No. Series of 2005 TITLE: AN ORDINANCE PROVIDING FOR THE APPROVAL OF REZONING FROM PLANNED INDUSTRIAL DEVELOPMENT (PID) AND INDUSTRIAL (I) TO PLANNED MIXED USE DISTRICT (PMUD) FOR PROPERTY LOCATED AT 5060 WARD ROAD CITY OF WHEAT RIDGE, COUNTY OF JEFFERSON, STATE OF COLORADO. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WHEAT RIDGE, COLORADO, THAT: Section 1. Upon applicatiOn by !BC Holdings, approval of a rezoillng in Wheat Ridge, Colorado, Case No. WZ-05-07, for property located at 5060 Ward Road and based on a recommendation from the Wheat Ridge Planning Commission and pursuant to the findings made based on testimony and evidence presented at a public hearing before the Wheat Ridge City Council, Wheat Ridge maps are hereby amended to exclude from the Planned Industrial Development and Industrial Distnct and to include m the Planned Mixed Use District zone district the following described land: - COMMENCING AT THE NORTHWEST CORNER OF SAID SOUTHEAST QUARTER OF SECTION 17; THENCE ALONG THE NORTHERLY LINE OF SAID SOUTHEAST QUARTER NOODll '19"E, 199.74 FEET; THENCE DEPARTING SAID NORTHERL Y LINE SOOD48'41"E, 30 00 FEET TO A POINT ON THE SOUTHERLY RIGHT OF WAY OF WEST 52ND AVENUE AND THE TRUE POINT OF BEGINNING; THENCE CONTINUING ALONG SAID SOUTHERLY RIGHT OF WAY N89Dll'19"E, 348.38 FEET; THENCE DEPARTING SAID SOUTHERLY RIGHT OF WAY SOODI8'24"E, 414.77 FEET; THENCE N88D53'15"E, 518.65 FEET; THENCE SOODl9'18"E, 5.27 FEET; THENCE ALONG THE ARC OF A NON- TANGENT CURVE TO THE RIGHT HAVING A RADIUS OF 270,54 FEET, A CENTRAL ANGLE OF 66D58'40" AND A CHORD WHICH BEARS S57Dl9'34"E, 298.55 FEET; THENCE PARALLEL TO THE NORTHERLY RIGHT OF WAY LINE OF WEST 50TH PLACE S88D40'20"W, 200.44 FEET; THENCE SOODI9'07"E, 215.60 FEET TO THE EXTENDED LINE OF SAID NORTHERLY RIGHT OF WAY OF WEST 50TH PLACE; THENCE ALONG SAID EXTENDED NORTHERLY RIGHT OF WAY AND NORTHERLY RIGHT OF WAY S88D40'20"W, 1087.24 FEET TO SAID EASTERLY RIGHT OF WAY OF WARD ROAD; THENCE ALONG SAID EASTERLY RIGHT OF WAY DEPARTING SAID NORTHERLY RIGHT OF WAY NOODl8'19"W, 659.25 FEET, THENCE DEPARTING SAID EASTERLY RIGHT OF WA YN89Dll'19"E, 170.00 FEET; THENCE NOODl8'19"W, 150.00 FEET TO SAID SOUTHERL Y RIGHT OF WAY OF WEST 52ND AVENUE AND THE TRUE POINT OF BEGINNING, ATTACHMENT 4 Section 2. Vested Property Rights. Approval of th1s rezoning does not create a vested property right. Vested property rights may only arise and accrue pursuant to the provisions of Section 26-121 of the Code of Laws of the City of Wheat Ridge, Section 3. Safety Clause. The CIty CouncIl hereby finds, determines, and declares that this ordinance IS promulgated under the general police power of the City of Wheat Ridge, that it is promulgated for the health, safety, and welfare of the public and that this ordinance is necessary for the preservation of health and safety and for the protection of public convenience and welfare. The City Council further determines that the ordinance bears a rational relation to the proper legislatlve object sought to be attained. Section 4. Severability. If any clause, sentence, paragraph, or part of this Zoning Code or the application thereof to any person or circumstances shall for any reason be adjusted by a court of competent jurisdiction mvalid, such judgment shall not affect application to other persons or circumstances. Section 5. Supersession Clause. If any provision, reqUirement or standard established by this Ordinance is found to conflict With similar provisions, requuements or standards found elsewhere in the Code of Laws of the City of Wheat Ridge, which are m eXIstence as of the date of adoption of this Ordinance, the proVisions, requirements and standards herein shall supersede and prevail. Section 6. This Ordinance shall take effect 15 days after final publicatIOn. -- INTRODUCED, READ, AND ADOPTED on first reading by a vote of to th - on thIS 10 day of October, 2005, ordered published in full m a newspaper of general circulatIOn in the City of Wheat Ridge and Public Hearing and consideration on final passage set for November 14th 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 readmg by a vote of _ to _, this 14th day of November, 2005 SIGNED by the Mayor on this _ day of ,2005 GRETCHEN CERVENY, MAYOR ATTEST: Pamela Y Anderson, City Clerk APPROVED AS TO FORM BY CITY ATTORNEY ITEM NO: *3 REQUEST FOR CITY COUNCIL ACTION I'I~$~' i lUl, COUNCIL MEETING DATE: October 10, 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 THIRD 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 VOLUNTARY 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. D PUBLIC HEARING D BIDS/MOTIONS ~ RESOLUTIONS D ORDINANCES FOR 1 ST READING D ORDINANCES FOR 2ND READING Quasi-Judicial: D Yes ~ No wR~ e: ' :-/ '-:>""'1""'~~ /,,~. - ~ -- Police Pet1slOn Fund Board Chairman EXECUTIVE SUMMARY: The sworn personnel of the police department participate in The City of Wheat Ridge Money Purchase Pension Plan for Designated Police Department Employees (also known as the Wheat Ridge Police Pension Fund), 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 Mayor, City Clerk, City Treasurer, Chief of Police, and two pension plan participants, Prior to submission to the Internal Revenue Service, the restated plan must be approved by ballot by the active pension plan participants and the City CounciL There are currently sixty-three (63) active pension plan participants. The Plan requires ballots cast by at least sixty-five percent (65%) of plan participants. The election was held from September 1,2005, through and includmg September 8, 2005. There were 63 ballots distributed wIth 62 votes approvmg the amendment and restatement of the plan, no votes opposed, and one under vote. COMMISSION/BOARD RECOMMENDA nON: The Wheat Ridge Police Department PensIOn Fund Board recommends approval of the proposed resolution. STATEMENT OF THE ISSUES: It was determined in 2004 that this pension plan had not been amended m 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 acls. The police pension board rehed 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. As a result, the Plan has to be reviewed and restated. Prior to submission to the Internal Revenue Service, the restated plan must be approved by the active pension plan participants, and the City CounciL 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 beginnmg on September 1,2005, through and mc1uding 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. . I Ballot undervote. (There was one member who was out of town on vacation and was unable to vote). 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 defimtlOn of disability to conform to Slate I FPP A 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 (l 0) 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, ALTERNATIVES CONSIDERED: There are two alternatives available to the Clty 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 ofthe 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 Partlcipants 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 ordmance changes. Upon approval, the restated plan will be submitted to the Internal Revenue Service for review and approval (the issuance of a determmation letter). City Code SectlOn 19-52 (e) provides that "at such time the plan is approved by the members as required herein, the same shall be forwarded to city council, which shall, by resolutlOn, approve the plan". - 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 penslOn plan fees account. There is no other financial impact upon the Plan or the City RECOMMENDED MOTION: "I move to approve Resolution 48-2005 - a ResolutlOn approving the adoption of the Restated city of Wheat Ridge Money Purchase Pension Plan for Designated Police Department Employees, and the First, Second and Third Amendments thereto for the purpose of Reinstatmg the Plan's Tax QuahficatlOn under Section 401(a) of the Internal Revenue Service Code and Approvmg the Submlssion of an IRS DeterminatlOn Letter Request and of an IRS Voluntary Compliance Program Request to Obtain IRS Approval of the Reinstatement of the Plan's Tax QuahficatlOn under Section 401(a) of the Internal Revenue Code." or, "I move to table mdefinitely Resolution 48-2005, for the following reason(s) " Report Prepared by' Joe Cassa, Wheat Ridge Police PensIOn Board Chairman Reviewed bY' Daniel Brennan, Chief of Police Attachments: 1. Resolution 48-2005 2. Final Copies of the City of Wheat Ridge Money Purchase Pension Plan for DeSignated Police Department Employees and Amendments (the "Plan") 051010 Request for City Couucil Action IRS Plan Compliance Oct 2005 Resolution (2) RESOLUTION NO. 48 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 THIRD 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 VOLUNTARY COMPLIANCE PROGRAM REQUEST TO OBTAIN IRS APPRO V AL OF THE REINSTATEMENT OF THE PLAN'S TAX QUALIFICATION UNDER SECTION 401(a) OF THE INTERNAL REVENUE CODE WHEREAS, the original Pension Plan for Designated Police Department Employees of the City ( the "Plan") was established effective as of October 1, 1981, and - was subsequently amended, in restated form, effective generally as of January 1, 1987, and has been amended thereafter WHEREAS, the Plan is intended to be a tax qualified retirement plan under Section 401(a) of the Internal Revenue Code of 1986, as amended (the "Code"); WHEREAS, the Plan was not amended in a timely manner for various changes in the Code since the Plan was restated effective generally as of January 1, 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 mtcnt of complymg 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"]; ATTACHMENT 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) 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 401 (a)(3 I) Amendment"], WHEREAS, under current IRS procedures to reinstate the Plan's tax qualified status under the requirements of Code Section 401 (a) and to insure that the Restated Plan conforms to the requirements of Code Section 401 (a), it is 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 determmation 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 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 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). - 3 The City of Wheat Ridge hereby directs and authorizes its Mayor and City Clerk and other administrative personnel to take any necessary and appropriate action. includmg, but not limited to, execution of the Restated Plan and the execution and submission of all reqmred documentation with respect to such request to the IRS under its Employee Plans Compliance Resolution System ("EPCRS") for its approval to reinstate the Plan's tax qualified status and such request that the IRS issue a determination letter that the Restated Plan conforms to the current requirements of Code Section 401 (a). DONE AND RESOLVED at a meeting 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 McNALLY AND BOWERS, P.C. ATTORNEYS AT LAW JOHN F. MCNALLY ONE WALDEN BUILDING 4790 TABLE MESA DRIVE, SUITE 100 BOULDER, CO 80305 jmcnally<lll mcnallybowers .com TELEPHONE (303)443.5073 FACSIMILE (303)443.5479 Septernber8,2005 Commander Joseph E. Cassa Wheat Ridge Police Department 7500 W, 29th Ave. Wheat Ridge, CO 80033 via email. j cassa@ci.wheatridge.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 401(a)(31) Amendment"]. ATTACHMENT 2 Commander Joseph E. Cassa September 8, 2005 Page 2 of2 I believe these documents contam 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 Kiplmg. 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"] - 1 01 1.02 1.03 1.04 1 05 106 1.07 1.08 1.09 1.10 1.11 1 12 1.13 1.14 1 15 1.16 1.17 I 18 I 19 1.20 1.21 1.22 1.23 1.24 1.25 1.26 1.27 1.28 1.29 1.30 1.31 1.32 1.33 1.34 1.35 1.36 1.37 1.38 1.39 1.40 TABLE OF CONTENTS ARTICLE I DEFINITIONS "Plan"................................ .................................................... .......... ............... ................... ..3 "Employer" .............................................................. ......... ............... ......................,3 "Trustees" ...... .............................................................. ...... ... ......... .......... ..........3 "Plan Administrator" ............................................. ............ .......... ............ ...................... .... 3 "Board" ,.,.,...,.,.".....,..,.".,......,. .........,.,............,.,.... .....,.,.,....,.".......".,..,........".,..,.......,............ 3 "Employee" ........................ ... ................................. .............................................................3 "Participant" ... ................... ............... ....... ............ ......... ........... .................................. 3 "Beneficiary".. .... ............................................................... ............... ............ ........... ........3 "Compensation"... ................................. ...................................... ..... ............ ........... ..... .. 3 "Account" ....................... ........... ............................................... .... .................. ......... .............4 "Accrued Benefit" .......... ............................................... ........... ..... ...... .......... 4 "Nonforfeitable" ...................................... .... .......... ....................................... ........................... 4 "Plan Year" ............... ................................ ............................ ............... ............................. ....4 "Limitation Year".. .. ............................................... ..... .......... ........ .............................4 "Effective Date" ......... ...... .......................... ....... .......... ................................................4 "Accounting Date" ............... ........................................... ......................... ....... .............., .....5 "Trust" ...... . ...... ..................................................... ........... ...... ...................... .................5 "Trust Fund".. ....... .......................................... ................... ..... ....... ................... ........ 5 "Nontransferable AnnUity" ......... ................... .... ...... .... .... .. .............................................5 "Act" ...... ...... .......................... ............... ................... ........... ............... 5 "Code" .... ........ ......... .., ..... ........ ................. ......... ... ... ...... .......... ...................5 "Service" ....................................... .................................... ........... ...... ..................... ..... .. 5 "Hour of Service" ............................ .......... ................................................ ........ ...... .. 5 "Authorized Leave of Absence" ........... .................... ..... ........ ............ ..............................6 "Former Participant" ........ ........................................ ..................... ...... ............................, .....6 "FPP A" ..................................... ............................................ ..... ............ .... ... ......................6 "Prior Plan"............................... ...... ............ .................... ........................... ......... .............7 "Trust Agreement" ,........ .. .................................................................. ........ ........ ................ 7 "Forfeiture" ............. ....... .......... ........... ........ ........ ..... ..... ..... ..... ................. ............... ......... .... ..... 7 "CRS".......... .................. ........................ .................. ..... .................. .......................... ..........7 "Highly Compensated Employee".. ....................................... ..... .................. ................ 7 "Employer Contributions"................................................. ...... ................... ...... ............... 8 "Employer Contributions Account" ........... ................ ................ ................... ......................... 8 "Participant Mandatory Contributions" ............ ...... ................. ......... ..............................8 "Participant Mandatory Contributions Account" ............................................ .........................8 "Participant V oluntarv Contributions" ........................................... ...........................................lS "Participant Voluntary Contributions Account" ...... ....... ................... ..... ........ ......... ..... 8 "PartIcipant Rollover Contributions".. .................................. ................ .... ........ ..... ....... 8 "Participant Rollover Contributions Account" ..... ................ ........ ......... ..... .............. .......8 "Separation from Service" .......................... ... ................. .., ................. ......................... 8 - i 141 1.42 1.43 144 1.45 2.01 2.02 2.03 301 3.02 303 3.04 3,05 4.01 402 403 404 4.05 4.06 4,07 "EI C t'b t' " ..............................8 ectJve on n U Ions ..................................................... "Related Group"/"Related'E;;;;i~~~;~:;..:.... ................................. ......... .....................................9 "Leased Employee" ............... ........................................................ ......... .... .......................... 9 "Disability" ........ .... .................... ..... ............ ....................,.. ........................... ......... .9 "Nannal Retirement Age" ..... ... ..... .......... ................................. .........................................9 ARTICLE II ELIGIBILITY AND PARTICIPATION ELIGIBILITY ............... ................ ...... ..........10 . ..... ................ ......... ...... ,. ....... ..... PARTICIPATION UPON RE-EMPLOYMENT .......... ................. ................................... 10 MANDATORY PARTICIPATION IN PLAN....... ..................... .............. .......................,10 ARTICLE III EMPLOYER CONTRIBUTIONS AND FORFEITURES EMPLOYER CONTRIBUTIONS ........ .............. ..... ... ............... 11 CONTRIBUTION ALLOCATION ... ...................... ...................... ....... .....................11 FORFEITURE ALLOCATION .... ... .. ........................... ............................................. 11 LIMITATIONS ON ALLOCATIONS TO PARTICIPANTS' ACCOUNTS. ........................12 DEFINITIONS - ARTICLE III ..................... ...... ..... .......... ... ......... ...........................13 ARTICLE IV PARTICIPANT CONTRIBUTIONS PARTICIPANT MANDATORY CONTRIBUTIONS,............... ...... ......... ........... ..........17 PARTICIPANT VOLUNTARY CONTRIBUTIONS ......"..................... ... ......... .............17 PARTICIPANT VOLUNTARY CONTRIBUTIONS - SPECIAL DISCRIMINATION TEST ..... ... ..... ........... ............................................... ... .... ..........18 P ARTICIP ANT ROLLOVER CONTRIBUTIONS .......... ........ ...................... ......................22 PARTICIPANT CONTRIBUTION AND APPRECIATION OF EMPLOYER CONTRIBUTIONS ACCOUNT - FORFEITABILITY.. ............. ..........22 P ARTICIP ANT VOLUNTARY AND ROLLOVER CONTRIBUTION WITHDRAW ALl DISTRIBUTION ......................................... .......... ................... ..........22 PARTICIPANT CONTRIBUTION - ACCRUED BENEFIT ..."..".............. .......................23 ARTICLE V VESTING 5 01 GENERAL .. ... ..... .......................... ... ................. ..... ....... ...............................24 5.02 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 GERALD DAHL, CITY ATTORNEY 1st PublicatIOn. 2nd Publication. Wheat Ridge Transcript Effective Date: e:\planning\forms\ord. frm - 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 701 INFORMATION TO BOARD................. ........... .......... ........... ......................... ............ 35 7.02 INDEMNITY OF BOARD AND TRUSTEES .............. ..................... ....... ............. .....35 ARTICLE VIII P ARTICIP ANT 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 8.07 LITIGATION AGAINST THE TRUST .................. ............................... ............................37 8.08 INFORMATION AVAILABLE............... ........................ .................. ...................... ......37 8.09 APPEAL PROCEDURE FOR DENIAL OF BENEFITS ..... .. ............................................ 37 8.10 PARTICIPANT DIRECTION OF INVESTMENT .................... ..... ....................... ......... 38 ARTICLE IX BOARD - DUTIES WITH RESPECT TO PARTICIPANT'S ACCOUNTS 9,01 MEMBERSHIP COMPENSATION, EXPENSES ....................... ......... .................... ......40 9.02 TERM................... ............................................................................... ........ .........................41 9.03 POWERS ................................ .............................. ...... .... .................................. ...............42 9.04 GENERAL.............................................................. .......... .......... .... ................................42 905 FUNDING POLICY ,.......................................................... ................................ ..... ...........43 9.06 MANNER OF ACTION............................................................ ................. ...... ............... ....43 9.07 AUTHORIZED REPRESENTATIVE... ..... .................................................... ......................43 9.08 INTERESTED MEMBER.............. ... ........... .............. ..........................................................43 9.09 INDIVIDUAL ACCOUNTS......... .......................... .......... ................. .......... ...............43 9.10 VALUE OF PARTICIPANT'S ACCRUED BENEFIT ............ .............................. ............43 911 ALLOCATION AND DISTRIBUTION OF NET INCOME. GAIN OR LOSS ....................44 9.12 INDIVIDUAL STATEMENT..................................... ................ .........................................45 9.13 ACCOUNT CHARGED..................................... .................. .. ............... ......... .............45 iii 9.14 LOST PARTICIPANTS ..................................""""........."........................"."................... .....45 9.15 PLAN CORRECTION ........"" ..............".".."..............."......"..".........." ..... ........................46 ARTICLE X TRUSTEES, POWERS AND DUTIES 1001 ACCEPTANCE ....... .......................... ..............................."............................ .....................48 1002 RECEIPT OF CONTRIBUTIONS .............................. ............... ............... ......................48 10.03 INVESTMENT POWERS .....".................................. ......,,"........................ ................ 48 10.04 RECORDS AND STATEMENTS........................ .................................... ................. ......51 10.05 FEES AND EXPENSES FROM FUND................. ."........................... ............. .............51 1006 PARTIES TO LITIGATION.......... .............."...... .............. ............ ........................ ..... .......51 1007 PROFESSIONAL AGENTS ""..... ........................".............". ......".................................. 51 10.08 DISTRIBUTION OF CASH OR PROPERTY .............................................................. .........51 10.09 DISTRIBUTION DIRECTIONS ......"...."................." ..................... ............ ..... .......... ...51 10,10 THIRD PARTy.... ................"..... .............. ............. ......""...........". ........ ....... ..............51 1011 RESIGNATION.... ............... ............................ ........ .......... .......................... 52 10.12 REMOVAL... ............ ...."...... .......................... ....... ......... ............"."................. ....52 10.13 INTERIM DUTIES AND SUCCESSOR TRUSTEES "........ ........... ...............".............. 52 10,14 VALUATION OF TRUST............ .............................." ."....... ......."."........ ..... ........... 52 10,15 LIMITATION ON LIABILITY - IF INVESTMENT MANAGER APPOINTED ........... ........... ... ........ ....... ........ ."... ....."."........... ...."................. .........52 10 16 INVESTMENT IN GROUP TRUST FUND................. ................... ...........".. ............52 10,17 MANNER OF ACTION ...... .................... ......... .................... ........."................ 52 - ARTICLE XI PROVISIONS RELATING TO INSURANCE AND INSURANCE COMPANY 11.01 INSURANCE BENEFIT ............... .......................... ................ ..................".......... .......53 1102 LIMITATION ON LIFE INSURANCE PROTECTION..... ."........ ...................... ..."..........53 11.03 DEFINITIONS............ ..................... ............ .......................... ................" ............".. 54 11,04 DIVIDEND PLAN ............,................................... ..................... ........... ."......................... 55 11.05 INSURANCE COMPANY NOT A PARTY TO AGREEMENT .........."."................. ....... 55 11.06 INSURANCE COMPANY NOT RESPONSIBLE FOR TRUSTEES' ACTIONS .......... ....... .............."............................. .............................. ................. .....55 11.07 INSURANCE COMPANY RELIANCE ON TRUSTEES' SIGNATURE... ........................55 11.08 ACOUITTANCE ........ ."....................... ...................................... ....... ........ .."............ ........ 55 11,09 DUTIES OF INSURANCE COMPANy............ ......... ...... .................."...................... 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 12.07 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 13,01 EXCLUSIVE BENEFIT................ ......................... ............................ .., ..............................58 13.02 AMENDMENT BY EMPLOyER............ ..... ................... .............. ............ ..... .........58 13 03 CONTINUANCE OF THE PLAN ...... ....... ............... .......................... ....................... 59 1304 FULL VESTING ON TERMINATION ..................................... .............................................59 1305 MERGER.... ...... .............. ............... ........... ......................................................................59 1306 TERMINATION....... .................................................... ..... ........ ...... ...... ...... ....... ......60 13.07 PLAN TO CONFORM TO CODE AND COLORADO LAWS ...... ..................................... 60 13.08 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 into 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 administration and distribution of contributions made by the Employer and its eligible Employees for the purpose of providing retirement benefits for its ehgible Employees, The original Plan was established effective as of October 1, 1981 The origmal 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, in 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 Business Job Protection Act of 1996, the Taxpayer Relief Act of 1997, the IRS Restructuring and Reform Act of 1998 and the Community 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 2001 ("EGTRRA"), which required that this Plan and Trust Agreement be further 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 31, 2001 Therefore, the Employer and Trustees have amended this Plan and Trust Agreement by that certain FIRST AMENDMENT TO THE CITY OF WHEAT RIDGE MONEY PURCHASE PENSION PLAN FOR DESIGNATED POLICE DEPARTMENT EMPLOYEES ["EGTRRA Amendment"] for certain apphcable 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 minimum distributions under revised Internal Revenue Code Section 401(a)(9), and the Internal Revenue Service required that tax qualified plans, including this Plan ami 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 401(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 Internal Revenue Code Section 401(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 401(a)(31), regarding mandatory tax qualified plan distributions made on or after March 28, 2005 (or such later date applicable to governmental plans) in excess of $1,000.00 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 401(a)(31) relative to mandatory tax qualIfied plan distributions made on or after March 28, 2005 (or such later date applicable to governmental plans) in excess of $1,000.00 being 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 in 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 appropriate under the circumstances based upon the date such Employee's employment with the Employer terminates. If an Employee's employment with the Employer terminates prior to the restated Effective Date of the Plan, or as of another prior applicable effective date as specifically provided for in this Plan and Trust Agreement, that Employee shall be entitled to benefits under the Prior 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 1.01 "Plan" shall mean the retirement plan and trust agreement established and continued by the Employer m 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 appltcable), which collectlVely 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. 1.03 "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 this 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 I 05, 1.04 "Plan Admimstrator" shall mean the Board, as defined in Section 1.05 I 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 sworn 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 in effect. Except as otherwise provided herein to the contrary, the term "Employee" shall not mean nor include clerical or other personnel whose services for the Employer are auxiliary to actual police protection services. Leased Employees, as defined in Code Section 414(n) and in Sechon 1 43, shall be treated as Employees hereunder to the extent required by the Code. 1.07 "Participant" is an Employee who is eligible to be and becomes a Participant in accordance with the proVIsions of SectlOn 2,01, or a person who is otherwise treated as a Participant in accordance with the provisions of Section 2.01, 1.08 "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 Administrator's, the Board's or the Trustees' duty to provide to the Beneficiary) infonnation 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 forms of compensation, insurance premIUms, pensIOns and retirement benefits, received for services performed 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 in Section 1.41. Any reference in this Plan to Compensation is a reference to the defimtion in this Section 1.09, unless the Plan reference specifies a modification to this definition. The Board will take into account only Compensation actually pmd during (or as permitted under the Code, paid for) the relevant penod. 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 in allocating Employer contributions under ARTICLE III and PartiCipant mandatory "picked up" contributions under Section 4.01 shall not take into account more than $150,000 (or such larger or smaller amount as the Commissioner of Internal Revenue may prescribe) of any Participant's Compensation. Notwithstanding the foregoing, an Employee under a Code Section 401(k) arrangement with the Employer, if applicable, 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 limitations. 1.10 "Account" shall mean the separate account(s) which the Board or the Trustees shall maintam for a Participant under the Plan. - 1.11 "Accrued Benefit" shall mean the amount standmg in a Participant's Employer Contributions Account, Participant Mandatory Contributions Account, PartiCipant Voluntary Contributions Account and Participant Rollover Contributions Account as of any date. 1 12 "Nonforfeitable" shall mean a Participant's or Beneficiary's unconditional claim, legally enforceable against 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 ending every December 31, 1.14 "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 beginning on or after January 1, 1997, except as specifically provided to the contrary in this Plan, and except for (1) Section 3,Q5(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 31, 1994 4 1.16 "Accounting Date" shall be the last day of the Plan Year, and may hereafter be referred to herein 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. 1,19 "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 security 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. 1.20 "Act" means the Employee Retirement Income Security Act of 1974, as amended, and may hereafter also be referred to as "ERISA" 1.21 "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. 1.23 "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 in whIch the Employee performs the duties, irrespective of when pmd; (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 period(s) to which the award or the agreement pertains rather than for the computation period in 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 terminated), for reasons other than for the performance of duties during a computation period, such as Authorized Leave of Absence, vacation, holiday, sick leave, illness, incapacity (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 continuous period during which the Employee does not perform any duties (whether or not such period occurs during a single computation penod), 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 maintained solely for the purpose of complying 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 incurred 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 thts paragraph (c). (d) Hour of Service shall also include any service which the Plan must credit for contributions and benefits in order to satisfy the crediting of service requirements of Code Section 414(u). The provisions of this Section 1.23( d) shall apply beginning December 12, 1994. For purposes of this 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 insurer, 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 in 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 determination that such Employee was paid at an unlawful rate for Hours of Service previously credited will not be entitled to additional credit for the same Hours of Service. Creditmg 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 period of time during whIch an Employee did not or would not have performed duties. - A computation period for purposes of this Section 1.23 is the Plan Year or Year of Service period 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 determination 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 1.24 "Authorized 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 in effect. An absence due to military service described in CRS Section 28-3-601, et seq, (or other applicable law), including annual, extended and emergency military leave, shall be governed by CRS Section 28-3-601, et seq, and shall be considered an Authorized Leave of Absence hereunder provided that the absence meets the requirements set forth in CRS Section 28-3-601, et seq. ' 1,25 "Former Participant" means an individual 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 "Prior Plan" means the City Of Wheat Ridge Money Purchase Pension Plan For Designated Police Department Employees in effect prior to the restated Effective Date of the Plan, or as of another prior applicable effective date as specifically provided for in the Plan. 1.28 "Trust Agreement" means the agreement set forth herein between the Employer and the Trustees providing for the administration of the Trust Fund, as the same may be amended from time to time, which forms a part of the Plan. 1,29 "Forfeiture" means that portion of a Participant's Accrued Benefit which is forfeited in accordance with Sections 5.05 or 9 14. 1.30 "CRS" means Colorado Revised Statutes, as amended. 1.31 "Highly Compensated Employee" means an Employee who (a) during the Plan Year or during the precedmg Plan Year, if applicable to the Plan, IS a more than 5% owner of the Employer (applying the constructive ownership rules of Code Section 318, and applying the principles of Code Section 318, for an unincorporated entity); or (b) during the precedmg Plan Year had Compensation in excess of $80,000 (as adjusted by the Commissioner of Internal Revenue for the relevant year). For purposes of thiS Section 1.31, "Compensation" means Compensation as defined in 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 in Section 1 41. The Trustees must make the determmation of who IS a Highly Compensated Employee, including the determinations of the number and identity of the top-paid 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 m the Internal Revenue Bulletin. 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 1.31, if the current Plan Year is the first year of the Plan, then the term "preceding Plan Year" means the 12-consecutive month period immediately preceding the current Plan Year Anything contained in this Section 1,31 or any other provision of the Plan to the contrary notwithstanding, the provisions of thiS Section 1.31 shall only apply to the Plan if so required under the Code, including, but not limited to Code Section 414( q). 7 1.32 "Emplover Contributions" means the amount contributed by the Employ~r u~der Section 3.01, excludmg Participant Mandatory Contributions, Participant Voluntary Contnbuhons, Participant Rollover Contributions, and Forfeitures, 1,33 "Emplover Contributions Account" means the account mamtained by the Board in the name of a Participant to record the Participant's interest in the Trust represented by such Participant's share of Employer Contributions, and the increase or decrease in the net worth of the Trust allocable thereto 1,34 "Participant Mandatory Contributions" means the contributlOns made under Section 401 by a Participant, excluding Employer Contributions, Participant Voluntary Contributions, Participant Rollover Contributions, and Forfeitures, 1.35 "Participant Mandatory Contributions Account" means the account maintained 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 increase 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 V oluntarv Contributions Account" means the account maintained by the Board in the name of a Participant to record such Participant's interest m the Trust represented by such Participant's Voluntary Contributions (if any), and the increase or decrease in 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. 1.39 "Participant Rollover Contributions Account" means the account maintained by the Board in the name of a Participant to record such Participant's interest in the Trust represented by such Participant's Participant Rollover Contributions (if any), and the mcrease or decrease in the net worth of the Trust allocable thereto. 1 40 "Separation from Service" means the Employee no longer has an employment relationship with the Employer maintaining this Plan. 1.41 "Elective Contributions" shall mean amounts excludible from the Employee's gross income under Code Sections 125, 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 cafeteria plan, a qualified transportation fringe benefit plan, a 401(k) arrangement, a SARSEP, a tax-sheltered annuity, a SIMPLE plan or a Code Section 457 plan. Notwithstanding the preceding sentence, amounts described in Code Section 132(f)(4) are not Elective Contributions until Plan Years beginning on or after January 1,2001, unless the Trustees operationally have included sueh amounts effective 8 as of an earlier Plan Year beginning no earlier than January 1, 1998. 142 "Related Group"/"Related Emplovers" A Related Group is a controlled group of corporations (as defined in Code Section 414(b)), trades or businesses (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 414(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" includes every Related Employer for purposes of creditmg Service and Hours of Service, determimng 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 being 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 Participatmg Employer. A Participating Employer is an Employer for all purposes of the Plan, Anything contained in this Section 1 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 Emplovee" means an individual (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 withm the meaning of Code Section 144(a)(3)) on a substantially full time basis for at least one year and who performs such services under primary direction or control of the Employer within the meaning of Code Section 414(n)(2). Except as otherwise provided hereinafter m this Section 1 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 orgamzation which is attributable to services performed for the Employer. - Anythmg contained in this SectIon 1.43 or any other provision ofthe Plan to the contrary notwithstanding, the provIsions of this Section 1.43 shall only apply to the Plan if so required under the Code. 1.44 "Disability" 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 III CRS, Title 31, Article 31. 1.45 "Normal Retirement Age" hereunder shall mean the date the PartIcipant attams 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 begin 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 remain 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 Prior Plan or under the terms of this Plan. 2.02 PARTICIPATION UPON RE-EMPLOYMENT If the Service of an Employee terminates and he or she is re-employed as an Employee, such re-employed Employee will be eligible to become a Participant and shall begin participation in 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 in the followmg sentence, all Employees who are eligible to participate in the Plan must participate in the Plan as a condition of their employment as an Employee with the Employer, and no current Participant may elect to discontmue his or her participation in the Plan. The provisions of this Section 2.03 may not be applicable 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 in another retirement plan sponsored by the Employer, such participation in 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 eligible to share in Employer Contributions for that payroll period an amount, which, together with any Forfeitures which are to be reallocated during such payroll period under the provisions of Section 3.03, equals ten percent (10%) of each such Participant's Compensation for such pay penod. (b) The percentage contributions of the Employer provided for in this Section 3.01 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 contributions shall be deemed modified as of and in accordance with the terms of such bmding 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 3.01, 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 in the applicable provision of Section 3.01, of the Participant's Compensation upon which the Employer based its Employer Contribution dUflng 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 administration and operational expenses of the Plan and Trust, and if any Participant Forfeitures remain after paYing such expenses, such remainmg Participant Forfeitures shall be applied, as directed by the Board, in accordance With Section 3.02, to reduce the Employer Contribution 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 terminated 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. 11 304 LIMITATIONS ON ALLOCATIONS TO PARTICIPANTS' ACCOUNTS. The amount ~f Annual Additions which the Board may allocate under this Plan on a Participant's behalf for a Limitation Year shall not exceed the Maximum Permissible Amount. If the amount the Employer otherwise 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 determination of a Participant's actual Compensation for a Limitation Year, the Board may determine the Maximum Permissible Amount on the basis of a Participant's estimated annual Compensation for such Limitation Year. The Board shall make this determination on a reasonable and uniform basis for all Participants similarly situated. The Board shall reduce any Employer Contributions (after applying any available Forfeiture allocation) based on estimated annual Compensation by any Excess Amount carried over from prior Limitation Years. As soon as is admmistratively 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 allocation 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 retum any voluntary Participant contributions (if any), and second mandatory Participant contributions to such Participant, plus any earnings and minus any losses attributable thereto, to the extent that the return would reduce the Excess Amount. (2) If, after the application of Section 3.04(b)(I), 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 applying 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)(1), 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 in a suspense account. The Board shall apply the suspense account to reduce Employer ContributiOns (after applying any available Forfeiture allocation) for all remaining Participants in the next Limitation Year, and in each succeeding 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 1. 2000. If any Participant presently participates, or has ever participated, under a defined benefit plan maintained 12 1 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 beginnmg before January 1, 2000 must not exceed LO 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 Beginning After December 31. 1999 The 1.0 hmitation of SectIOn 3 .04( c)(1) does not apply for any Limitation Year beginning after December 31,1999 3 05 DEFINITIONS - ARTICLE III. For purposes of Article III, 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 401(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 reapphed 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 m 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 m Code Section 419(e)) maintained 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 thiS ARTICLE III, "Compensation" means Compensation as defined in 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 III "Compensation": (i) includes Elective Contributions for any Limitation Years beginning after December 31, 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 415(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 Y car, the Trustees will multiply the $30,000 (or adjusted) limitation by the following fraction. Number of months in the short Limitation Year 12 13 The 25% lImitation set forth above in this Section 3.05(c) does not apply to any contribution for medical benefits within the meaning of Code Section 40 I (h) or Code Section 4l9A(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. (t) "Limitation Year" - The Plan Year. If the Employer amends the Limitation Year to a different 12 consecutive month period, the new Limitation Year must begin on a date within the Limitation Year for which the Employer makes the amendment, creating a short Limitation Year - (g) "Defined contribution plan" - A retirement plan which provides for an mdividual account for each participant and for benefits based solely on the amount contributed to the participant's account, and any income, expenses, gains 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) maintained by the Employer as a single plan. For purposes of the limitations of this Article III only, the Board shall treat employee contributions made to a defined benefit plan maintained by the Employer as a separate defined contribution plan. The Board shall treat as a defined contribution plan an individual medical account (as defined in Code Section 415(1)(2)) mcluded as part of a defined benefit plan maintained by the Employer and, for taxable years endmg after December 31, 1985, a welfare benefit fund under Code Section 419(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 in Code Section 419A(d)(3)). (h) "Defined benefit plan" - a retirement plan which does not provide for individual accounts for Employer contributions. The Board must treat all defined benefit plans (whether or not terminated) maintained by the Employer as a single 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 in effect under Code S415(b)(1 )(A) for the Limitation Year, or (ii) 140% of the Participant's Average Compensation for ills or her high 3 consecutive Years of Service To determine the denominator of this fraction, the Board will make any adjustment required under Code S415(b) and will determine a Year of Service as a Plan Year in which the Employee completed at least 1,000 Hours of Service. The "projected annual benefit" is the annual 14 retirement benefit (adjusted to an actuarially equivalent straight life annuity if the plan expresses such benefit m a form other than a straight life annUIty or qualified joint and survivor annuity) of the Participant under the terms of the defined benefit plan on the assumptions he or she continues employment until hIS or her normal retirement age (or current age, if later) as stated in 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 remam 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 maintamed by the Employer which were in eXistence on May 5, 1986, the dollar limitation used in the denommator 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 in 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 applies only if the defined benefit plans mdividually and in the aggregate satisfied the requirements of Code ~415 as in effect at the end of the 1986 LImitation Year (j) "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 following amounts determmed for the Limitation Year and for each prior Year of Service with the Employer (I) 125% (subject to the "100% limitation" in paragraph (k)) of the dollar limitation m effect under Code ~415(c)(1 )(A) for the Limitation Year (determined without regard to the special dollar limitations for employee stock ownership plans), or (ii) 35% of the Participant's Compensation for the Limitation Year For purposes of determining the defined contribution plan fraction, the Board will not recompute Annual Additions in Limitation Years beginning prior to January 1, 1987, to treat all Employee contributions as Annual Additions. If the Plan satisfied Code ~415 for LImitation Years beginnmg prior 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, in 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 (1) the excess of the sum of the fractions over 1.0, times (2) the denominator of the defined contribution plan fraction, In making the adjustment, the Board must disregard any accrued benefit under the defined benefit plan which is m 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 100% limitation applies, the Plan Administrator must detennme the denommator of the defined benefit plan fraction and the denommator of the defined contribution pLan fraction by substituting 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 minimum benefits which satisfy Code ~416(h)(2), The definitions in Sections 3.05(i), 3.05U) and 3.05(k) above only apply if the limitation described in Section 3,04(c)(I) applies to the Plan. - 16 ARTICLE IV PARTICIPANT CONTRIBUTIONS 4.01 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 period m which he or she is a Participant. Effective for the payroll periods of the Employer beginning on or after January 1, 2006, the mandatory Participant contributions reqUired under the provisions of the preceding sentence of this 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 m Section 4 01(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 relatmg to such percentage contribution shall be deemed modified, as of and in accordance with, the terms of such binding agreement. (c) For all mandatory Participant contributions required under the provisions of thiS Section 4 01(a) wluch 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 in 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 4.01(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 01(a) made to the Trust is otherwise designated and treated herein as the contribution of such Participant, It is intended that such contribution shall be treated, for federal income tax purposes, as an Employer ContributIOn under Code Section 414(h)(2). - (d) For purposes of determming the amount of the percentage contributions set forth in tlus Section 4.01, each Participant's Compensation, as defined in Section 109, shall be used. However, for federal income tax purposes, the amount of a Participant's taxable income and of his 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 01 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. 402 PARTICIPANT VOLUNTARY CONTRIBUTIONS. (a) Subject to Section 402(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 voluntary contribution for a particular Plan Year not later than thirty (30) days after the Accounting 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 Accounting Date of that Plan Year The Board may establish whatever procedures it deems necessary to facilitate Participants' voluntary contributions. (b) Participant Voluntary Contributions From and After January 1, 2006. From and after January I, 2006, Participant Voluntary Contributions will no longer be permitted under the Plan. 4.03 PARTICIPANT VOLUNTARY CONTRIBUTIONS SPECIAL DISCRIMINATION TEST. The Board shall determine whether the Participant Voluntary Contributions described m Section 4 02 satisfy one of the followmg average contributions percentage ("ACP") tests: (i) The ACP for the Highly Compensated Group does not exceed 1.25 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 points (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 following definitions apply- (1) "Highly Compensated Employee" means an Eligible Employee who satisfies the definition 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 Nonhlghly Compensated Employees for the Plan Year (6) "Compensation" means, except as specifically provided in this Section 4,03, Compensation as defined in Section 305(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 thc Plan Y car 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 S401(k) arrangement. Elective deferrals do not include 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 g401(k) arrangement or on account of employee contributions. Matching contributions also include 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 matching contributIOns. (10) "Qualified matching contributions" are matching contributions which are 100% Nonforfeitable at all times and which are subject to the distribution restrictions 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 vesting schedule. (11) "Qualified nonelective contributions" are nonelective contributions which are 100% Nonforfeitable at all times and which are subject to the distribution restrictions described in 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 into 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 attainment of age 59V" (b) financial hardshiP satisfying the requirements of Code g401(k) and the applicable Treasury regulations, (c) a plan termmation, without establishment of a successor defined contribution plan (other than an ESOP), (d) a sale of substantially all of the assets (withm the meanmg of Code g409(d)(2)) used in a trade or busmess, but only to an employee who continues employment with the corporation acquiring those assets, or (e) a sale by a corporation of its mterest in a subsidiary (within the meaning of Code g409( 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 include earnings on elective deferrals credited as of a date later than December 31, 1988, and may not include qualified matching contributions and qualified nonelective contributions, nor any eammgs on such contributions, mespective of when credited. A distribution described in clauses ( c), (d) or ( e), if made after March 31,1988, must be a lump sum distribution, as required under Code ~401(k)(10). (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 g401(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 i~ a member .o~ that group. ~ Eligible Employee's contribution percentage for a Plan Year is the ratlo of the Ehglble Employee s aggregate contributions for the Plan Year to the Employee's Com~ensation for the Plan Year. The Board operationally may include elective deferrals not used to satisfy the actual deferral percentage ("ADP") test under a Code 9401(k) arrangement. (c) Special aggregation rule for Highly Compensated Employees. To.det~rmine the contribution percentage of any Highly Compensated Employee, the a~gregate co~tnbutlO~s t~ken into account must include any matching contributions (other than qualified matchmg contnbutlOns used to satisfy the ADP test under a Code 9401(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 determine the combined aggregate contributions on the basis of the plan years ending in the same calendar year. (d) Aggregation of certain plans. If the Employer treats two plans as a smgle for coverage or nondiscrimination purposes, the Employer must combine the plans to determine 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 testing 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 aggregating plans under this Section 4.03(d) is using pnor year testing, the Board must adjust the Nonhighly Compensated Group ACP for the prior year as provided in the Code or in other applicable guidance. ( e) Distribution of excess aggregate contributions. If the Board determines the Plan fails to satisfy the ACP test for a Plan Year, the Trustees, as directed by the Board, must distribute the vestcd excess aggregate contributions, as adjusted for allocable income, dunng the next Plan year. However, the Employer may incur an excise tax with respect to the amount of excess aggrcgate contributions for a Plan Year not distributed to the appropnate Highly Compensated Employees during the first 2 V, 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, reducing his/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, including 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 in this manner until the ACP for the Highly Compensated Group satisfies the ACP test. After the Board has determined the total excess aggregate contributIon amount, the Trustees, as directed by the Board, then will distribute (to the extent vested) to each Highly Compensated Employee his/her respective share of the excess aggregate contributions. The Board will determine each Highly Compensated Employee's share of excess aggregate contributions by starting with 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, reducing the amount of 20 aggregate contributions of the Highly Compensated Employee(s) at the next highest dollar amount of aggregate contributions, mcluding the aggregate contributions of the Highly Compensated Employee(s) whose aggregate contributions the Board already has reduced (but not below the next rughest dollar amount of aggregate contributions), and continumg in this manner until the Trustees have distributed all excess aggregate contributions. (f) Allocable income. To determine the amount of the corrective distribution rcquircd undcr 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 income" means net income or net loss. To calculate allocable income for the Plan Year, the Board will use a uniform and nondiscrimmatory method which reasonably reflects the manner used by the Board to allocate income to Participants' Accounts. (g) Characterization of Excess Aggregate ContributIons. The Board will treat a Highly Compensated Employee's allocable share of excess aggregate contributions attributable to this 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 g401(k) arrangement mamtained 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 (1) and (2)' (1) 125% of the greater of: (i) the ADP of the Nonhighly Compensated Group under the Code g401(k) arrangement; or (ii) the ACP of the Nonhighly Compensated Group for the Plan Year beginnmg with or within the Plan Year of the Code ~40 1 (k) arrangement. (2) 2% plus the lesser of (l)(i) or (1)(ii), but no more than twice the lesser - of (1 )(i) or (1 )(ii). The Board, in lieu of determirung the multiple use limitation as the sum of (1) and (2), may elect to determine the multiple use limitation as the sum of (3) and (4): (3) 125% of the lesser of: (i) the ADP of the NonhigWy Compensated Group under the Code g401(k) arrangement; or (ii) the ACP of the Nonhighly Compensated Group for the Plan Year beginning with or within the Plan Year of the Code ~40 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 applying the ADP test to the Code ~401(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, m 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 mdirectly from one qualified plan to another qualified plan. Before accepting a rollover contribution, the Trustees may require an Employee or Participant to furnish satIsfactory evidence that the proposed transfer is in 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 reqmre the Employer's written consent, and the Participant's or Employee's filmg 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 into cash prior 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 provisions of this SectIOn 4.04. The Trustees, in their sole discretIOn, may invest the rollover contribution either m a segregated investment account for the Participant's sole benefit or as part of the Trust Fund. As of the Accounting Date (or other valuation date) for each Plan Year, the Trustees shall allocate and credit the net income (or net loss) from a Participant's segregated Account, any expenses allocable thereto and the increase or decrease in the fair market value of the assets of a segregated Account solely to that Account as provided in SectIon 9 11. - An Employee, pnor to satIsfying the Plan's eligibility conditions, may make a rollover contributIOn to the Trust to the same extent and in the same manner as a Participant. If an Employee makes a rollover contributIon to the Trust prior to satisfymg 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 in 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 in the Plan. If the Employee has a Separation from Service prior to becoming 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 - FORFEIT ABILITY 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 WITHDRAW AU DISTRIBUTION. 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 (including 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)(II) and 417, if said Code Sections apply The Trustees shall distribute a Participant's unwithdrawn Accrued Benefit attributable to hiS or her Participant voluntary and rollover contributions (including earnings thereon) at the same time the Trustees distribute the Participant's Accrued Benefit attributable to Employer Contributions and Participant Mandatory Contributions. The Trustees, in their sole discretion, may adopt and/or modify from time to time rules and procedures applicable to a Participant's right to withdraw all or any part of the value of his or her Accrued Benefit derived from his or her Participant voluntary or rollover contributions (including earnings thereon) described under the proVisions of this Section 4.06. 4.07 P ARTICIP ANT CONTRIBUTION - ACCRUED BENEFIT. The Board shall maintain, or shall direct the Trustees to maintain, a separate Account in the name of each Participant to reflect the Participant'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 in the name of each Participant to reflect the Participant's Accrued Benefit under the Plan derived from his or her Participant Rollover Contributions. A Participant's Accrued Benefit derived from ills 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 501 GENERAL. A Participant, Former Participant or Beneficiary shall acqmre a non- forfeitable interest in the Accounts standing in his or her name only as hereinafter provided for in this Article V. After a Participant so acquires a non-forfeitable interest under the provisions of this Article V, such non-forfeitable interest shall carry over and continue after such Participant becomes a Former Participant or a Beneficiary designation with respect thereto becomes applicable, subject to charges, deductions, distributions and Forfeitures with respect thereto under the Plan. The Participant's Accrued Benefit derived from Participant Mandatory Contributions, Participant Voluntary Contributions and Participant Rollover Contributions shall be at all times 100% Nonforfeitable. 5.02 PARTICIPANT DEATH. DISABILITY OR ATTAINMENT OF NORMAL RETIREMENT AGE. A Participant's Accrued Benefit derived from Employer Contributions will be 100% Nonforfeitable in the event of a Participant's Separation from Service for any of the following reasons: (a) The Participant's death, (b) The Participant's Disability, as defined in Section 1 44 , or (c) The Participant's attainment of Normal Retirement Age. - 503 VESTING SCHEDULE. Except as provided in Sections 5.01 and 5.02, for each Vesting Year of Service, a Participant's Nonforfeitable percentage of his or her Accrued Benefit derived from Employer ContributIons equals the percentage in the following vesting schedule: Vesting Years of Service With the Employer 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) Vesting Year of Service - Definition. For purposes of vesting under Section 5.03, a Vesting Year of Service shall be computed on the following basis. 24 (1) With respect to a Participant who incurs a Separation of Service on or before December 31, 2005, a Vesting Year of Service shall be computed on the basis of the Plan Year; and (2) With respect to a Participant who incurs a SeparatIon of Service on or after January 1, 2006, a Vesting Year of Service shall be computed on the basis of consecutive twelve (12) month vesting computation periods. The initial vesting computation period is the first consecutive twelve (12) month period measured from the Employee's Employment Commencement Date. The Plan measures subsequent vesting computation periods beginning 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) Vesting Year of Service - Computation. For purposes of vesting under Section 5.03, a Participant's Vesting Year(s) of Service shall be computed subject to following: (1) With respect to a Participant who mcurs a Separation of Service on or after January 1, 2006, such Participant shall be credited With one (1) 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 during such Vesting Year of Service; and (2) If a Participant incurs 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 Vesting Years of Service accrued prior to such Participant's Separation from Service shall be disregarded for purposes of vesting under Section 5.03 in determming 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 1, 2006, except for a forfeiture under Section 9.14, a Participant's forfeiture, if any, of his or her Accrued Benefit derived 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 following the calendar quarter in which such Participant terminates 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 vesting 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 6.01 TIMING OF DISTRIBUTIONS. Unless, pursuant to Section 6 03, the Participant or the Beneficiary elects in writing to a different time or method of payment, the Board shall direct the Trustees to commence distribution of a Participant's Nonforfeitable Accrued Benefit in accordance with this Section 6.01 For all purposes of this Article VI, the term "annuity starting date" means the first day of the first period for which the Plan pays an amount as an annuity or in any other form, but in no event shall the "annuity starting date" be earlier than a Participant's SeparatIOn of Service. A "distributIon date" under this Article VI is the earliest admimstratively feasible date following the PartiCipant's Separation from Service. Anything contained herem to the contrary notwithstanding, any distribution of a Participant's Nonforfeitable Accrued Benefit is subject to the applicable provisions of Section 6.02. (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 in 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 in a lump sum on any distribution date the Board, m 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 SectlOn 6.01(b). The Board shall distribute the deceased Participant's undistributed Nonforfeitable Accrued Benefit at the time and in 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 in 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) Priority 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 Administration 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 1, 2001 (1) RBD - More Than 5% Owner. A Participant's RBD is the April 1 following the close of the calendar year in which the Participant attains age 70 1/2 if the 26 Participant is a more than 5% owner (as defined in Code g416) with respect to the Plan Year ending 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 discontinue required minimum distributions notwithstanding the Participant's subsequent change in ownership status. (2) RBD - Non 5 % Qwners. 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 in which the Participant incurs a Separation from Service or, if later, the April 1 following the close of the calendar year in 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 following the close of the calendar year in which the Participant attains age 70 1/2. (3) Form of Distribution. The Plan Administration 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 ElectlOns. (1) Election to Discontinue Distributions. A Participant who (a) is not a more than 5% owner; (b) had attained age 70 1/2 prior to 1997, (c) had commenced prior to 1997 required minimum distributions under the pre-1997 RBD; and (d) has not incurred a SeparatIon from Service, has a continuing election to discontinue receiving distributions from the Plan (which previously were required minimum distributions under the Plan). A Participant who makes an election under this Section 6 02(b)(1) must establish a new annuity starting date when the Participant 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 701/2 after 1996 (or who attained age 701/2 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 minimum 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 attained age 70 1/2 after 1996, the Participant must make the election to postpone distribution under this Section 6.01(b)(2) not later than April 1 of the calendar year following the year in which the Participant attains 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 writing on a form prescribed by the Plan Administration 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 minimum distribution requirements under Code g401(a)(9) and the applicable Treasury regulations. (1) Calculation of Amount. The required minimum distribution for a calendar year ("distribution calendar year") equals the Participant's Nonforfeitable Accrued Benefit as of the latest valuation date preceding the beginning of the distribution calendar year (such valuation date being within 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 ~401(a)(9)). The Plan Administration Committee will increase 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 31 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 minimum distribution for the first distribution calendar year made after the close of that year is a distribution occurring in that first distribution calendar year (2) Recalculation. In computing a required minimum distribution, the Plan Administration Committee must use the unisex life expectancy multiples under Treas. Reg. g 1.72-9 The Plan Administration Committee, only upon the Participant's timely election, will compute the required minimum distribution for a distribution calendar year subsequent to the first distribution calendar year by redetermming ("recalculation" of) the Participant's life expectancy or the Participant's and spouse deSignated Beneficiary's life expectancies as elected. However, the Plan Admimstration Committee may not redetermine the joint life and last survivor - expectancy of the Participant and a nonspouse deSignated Beneficiary in a manner which takes into 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) in writing and on a form the Plan AdmmistratlOn 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 Administration Committee direction) must satisfy the MDIB requirement under Code g401(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 Administration Committee will compute the Participant's required minimum distribution by substituting the applicable MDIB divisor for the applicable life expectancy factor, if the MDIB divisor is a lesser number. Following the Participant's death, the Plan Administration 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 minimum distribution for the first distribution calendar year is due by the Participant's RBD The required minimum distribution for each subsequent distribution calendar year, including the calendar year in which the Participant's RBD occurs, is due by December 31 of that year. (5) Nontransferable AnnUity. If the Participant receives distribution in 28 the form of a Nontransferable Annuity, the distribution satisfies this Section 602(c) if the contract complies with the requirements of Code g401(a)(9). (d) Minimum DistributIon Requirements for BenefiCiaries. The method of distribution to the Participant's Beneficiary must satisfy Code ~40 1 (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 remaining benefit to the Beneficiary at least as rapidly as under the method in effect for the Participant, determined without regard to the MDIB requirements of Section 6.02( c )(3). (2) Death Prior to RBD If the Participant's death occurs prior 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 determined under Section 8.02. The Plan Administration Committee may not direct payment of the Participant's Nonforfeitable Accrued Benefit over a period 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 in which the Participant's death occurred or, if later, and the designated Beneficiary is the Participant's surviving spouse, December 31 of the calendar year m which the Participant would have attained age 70 112. If the Plan Administration Committee direct the Trustees to make distribution in accordance with Section 6.02(d)(2)(ii), the minimum distribution for a distribution calendar year equals the Participant's Nonforfeitable Accrued Benefit as of the latest valuation date preceding the beginning of the distribution calendar year divided by the designated Beneficiary's life expectancy The Plan Administration Committee must use the unisex life expectancy multiples under Treas. Reg. ~ 1.72-9 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 surviving 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 Administration Committee commence payment to the designated Beneficiary The Plan Administration 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 attaining the age of majority, as paid to the Participant's surviving spouse. A surviving spouse 29 designated Beneficiary must elect recalculation under this Section 6 02(d)(3) in writing and on a form the Plan Administration Committee prescribe not later than the last day of the spouse's first dlstribution year. (4) Beneficiary Election. If the Participant under Section 6 01(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 AdmmistratIon Committee must direct the Trustees to commence distribution to the Beneficiary. If the Beneficiary fails to elect timely a distribution method, the Plan Administration 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 distributlOns under the Plan made on or after January 1,2001, for calendar years beginning on or after January 1, 2001, the Plan will apply the minimum distribution requirements of Section 40l(a)(9) of the Internal Revenue Code in accordance with the regulations under Section 401(a)(9) that were proposed on January 17, 2001, (the "2001 Proposed Regulations"), notwithstandmg any provision of the Plan to the contrary. If the total amount of required minimum distributions made to a PartiCipant for 2001 prior to the January 1, 2001 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 2001 prior to the January 1, 2001 effective date are less - than the amount determined under the 2001 Proposed Regulations, then the amount of required minimum distributions for 2001 on or after such date will be determined so that the total amount of required minimum distributions for 2001 is the amount determmed under the 200 1 Proposed Regulations. This amendment shall continue in effect until the last calendar year beginning before the effective date of final regulations under section 401(a)(9) or such other date as may be published by the Internal Revenue Service. 6.03 NOTICE, ELECTION AND METHOD OF DISTRIBUTION. (a) Distribution Notice. Not earlier than ninety (90) days, but not later than thirty (30) days, before the Participant's annuity starting date, the Board must provide a written 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 mformation required by the Code or applicable Treasury regulations, such as an explanation of the optional forms of benefit in the Plan, the material features and relative values of those options, the Participant's right to defer distribution as may be permitted in 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 determined in the sole discretlOn of the Board) which is earlier than thirty (30) days following such Participant's receipt of the distribution notice, by such Participant executmg a waiver m writing of the remainder of such thirty (30) day period and delivering such wntten waiver to the Board. (b) Right of Election. The Participant (or his or her Beneficiary in the case of the Participant's death, or his or her legal representative in the case of the Participant's disability) shall have the sole right 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 m Sections 603(c)(1), 6.03(c)(2), 6.03(c)(3) or 6.03(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 6.03(c)(5), the Participant (or his or her Beneficiary in the case of the Participant's death, or his or her legal representative in the case of the Participant's disability) shall have the nght 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 grantmg 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 m 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' (1) By payment m a lump sum. (2) By payment in monthly, quarterly or annual installments over a fixed reasonable period 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 ending 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 joint 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 joint 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 in the Accounts concerned from which payments are to be made and so long as (1) the new method of payment is consented to in writing by the Participant concerned (or his or her Beneficiary in 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 603, 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 6.03(b) at any time prior 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 9.11 (d). (g) Nontransferable AnnUitv Anythmg contained herein to the contrary notwithstanding, 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, in 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 SectlOn 6.02. 6.04 DISTRIBUTIONS 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 414(q)). However, the following provisions shall apply: (a) Effective for all dissolution of marriage, legal separation and declaration of invalidity of marriage actions in which the court prior 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 marriage, legal separation or declaration of invalidity of marriage filed on or after January 1, 1997, and for all dissolution of marriage, legal separation or declaration of invalidity of marriage actions filed prior to January 1, 1997, in which the court did not enter a final property division order concerning the division of a 32 Participant's Accrued Benefit hereunder prior to January 1, 1997, the Board shall comply with a properly executed court order approving a written agreement entered into pursuant to CRS Section 14-10-113(6), concerning the division of a Participant's Accrued Benefit under the Plan, all in accordance with and to the extent required under the provisions of CRS Section 14-1 0-113(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 implementing this Section 6.04(b) may include, but are not limited to' (i) a requirement that, in order for the parties' agreement concerning 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 14-10-113(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 in accordance therewith. 6 05 DIRECT ROLLOVER. (a) Election. ThiS SectlOn 605 applies to distributions made on or after January I, 1993. Notwithstandmg any provision of the Plan to the contrary that would otherwise limit a distributee's electlOn under this ARTICLE VI, a distributee may elect, at the time and in 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 in a direct rollover Not earlier than ninety (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 information reqUired by the applicable provisions of the Code and regulations, the rollover option, the optional forms of benefit in 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 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 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 remainder of such thirty (30) day penod and delivering such written waiver to the Board. (b) Definitions. For purposes of this Section 6.05, the following defimtlons 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 33 eligible rollover distribution does not mclude (i) any distribution that is one of a series of substantially equal periodlc payments (not less frequently than annually) made for the life (or hfe 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 period of ten years or more, (ii) any distribution to the extent such distribution is required under section 40 1 (a)(9) ofthe Code (iii) the portion of any distribution that is not includible in gross income (determined without regard to the exclusion for net umealized appreciation with respect to employer secunhes); (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) Eligible Retirement Plan. An eligible retirement plan is an individual retirement account described in section 408(a) of the Code, an individual retirement annuity described m section 408(b) of the Code, an annuity plan described in 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, in the case of an eligible rollover distribution to the Participant's surviving spouse, an eligible retirement plan is an individual retirement account or individual retirement annuity. (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 414(P) of the Code or applicable provisions of CRS, are distributees 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 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 in any successor law or guidance) in lieu of distributing such Nonforfeitable Accrued Benefit to the distributee. 34 ARTICLE VII EMPLOYER ADMINISTRATIVE PROVISIONS 7.01 INFORMATION TO BOARD. The Employer will make available current information to the Board as to the name, date of birth, date of employment, annual compensation, leaves of absence, Vesting Years of Service and date of termination of employment of each Employee who is, or who will be eligible 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 information the Employer makes available to the Board shall be conclusive as to all persons. 7.02 INDEMNITY OF BOARD AND TRUSTEES Subject to any limitations under applicable 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 Administrator and the Board, or the members of the Board, may be subjected by reason of any act or conduct (except willful misconduct or gross negligence) in their official capacities in the administration 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 relieve the Trustees, the Plan Administrator or any Board member from any liability they may have for breach of a fiduciary duty. - 35 ARTICLE VIII PARTICIPANT ADMINISTRATIVE PROVISIONS 8.01 BENEFICIARY DESIGNATION. Any Participant may from time to time designate, in writing, any person or persons, including a trust or other entity, contingently or successively, to whom the Trustees shall pay his or her Nonforfeitable Accrued Benefit (includmg any life 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 prior 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 in accordance with ARTICLE VI in the following order of priority to (a) The Participant's surviving spouse; (b) The PartiCipant's surviving children, including adopted children, in equal shares, (c) The Participant's survivmg 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 remaining Nonforfeitable Accrued Benefit to the Beneficiary's estate unless the Participant's beneficiary deSignation provides otherwise. 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 information as the Board considers necessary or desirable for the purpose of administenng the Plan. The provisions of this Plan are effective for the benefit of each Participant upon the condition precedent that each Participant will furnish promptly full, true and complete evidence, data and information 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 writing, 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 this Plan. 8.05 ASSIGNMENT OR ALIENATION. Except for assignments for child support purposes as provided for in CRS, Sections 14-10-118(1) and 14-14-107, as they eXisted prior to July 1, 1996, except for income assignments for child support purposes pursuant to CRS Section 14-14- 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 in compliance with a properly executed court order approving a written agreement entered into 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 alienate (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 surviving spouse or parent, or a guardian or personal representative of a minor 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 proceedmg of any nature whatsoever, issued out of or by any court in the State of Colorado or any other jurisdiction, for payment or satisfaction, in whole or in part, of any debt, damages, claim, demand, judgment, fine or amercement of such Participant, Beneficiary, surviving spouse, parent, or minor child. The Trust Fund shall be kept, secured and distributed only for the purposes of pensioning and protecting PartiCipants and their Beneficiaries and for no other purposes whatsoever. To the extent the provisions relatmg to anticipation, assignment, or alienation of benefits under the Plan described herebefore in this Section 8.05 are modified or repealed by applicable Colorado law, then the provisions of this Section 8.05 shall be deemed modified or repealed m accordance therewith. 8.06 NOTICE OF CHANGE IN TERMS. The Plan Administrator, within a reasonable time, shall furnish all Participants and Beneficiaries a summary description of any matenal amendment to the Plan. 807 LITIGATION AGAINST THE TRUST. A court of competent jurisdiction 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 in 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 instrument under which the Plan was established or is operated. The Plan Administrator will maintain all of the items listed in this Section 8 08 in its office, or in such other place or places as the Plan Administrator may designate from time to time for examination during reasonable business hours. Upon the written request of a Participant or Beneticiary the Plan Administrator shall furnish 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 requesting 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 within 60 days of the Claimant's written clam for benefits. The Board must provide adequate notice m writing to any Claimant whose claim for benefits under the Plan the Board has denied. The Board's notice to the Claimant shall set forth: (a) The specific reason for the denial; (b) Specific references to pertment Plan provisions on WIDch the Board based its denial, (c) A description of any additional material and information needed for the Claimant to perfect his or her claim and an explanation of why the material or information is needed, and (d) That any appeal the Claimant wishes to make of the adverse determination must be in writing to the Board withm seventy-five (75) days after receipt of the Board's notice of denial of benefits. The Board's notice must further advise the Claimant that his or her failure to appeal the action to the Board in writing withm the seventy-five (75) day period will render the Board's determination final, binding and conclusive. Appeals from Board determinations shall be in accordance with procedures adopted from time to time by the Board. The Board may, in its sole discretion, appomt a hearing 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 tills Section 8 09 shall not be in conflict with any constitutional and due process rights 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. 810 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 10 For purposes of this Section 8.10, a "Participant" (as used in this Section 8.10) shall also include a Beneficiary if the Beneficiary has succeeded to the Participant's Account, and if the Plan and/or the Board, in their discretion, afford the Beneficiary the same self-direction as a Participant. (a) Board Authorization and Procedures. A Participant has the right to direct the Board with respect to the investment or re-investment of the assets comprising the Participant's individual Account(s) only if the Board consents in 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 8.10, including procedures or conditions for electronic transfers or for changes in investments by Participants. The Board will mamtain, or direct the Plan service provider to maintain, appropriate individual 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 right to direct the investment 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 following provlSlons shall apply with respect to the Board: (a) Plan Administrator. The Board shall be the Plan Administrator. (b) Membership. (1) Prior To January L 2006. Prior to January 1, 2006, the Board shall be made up of six (6) individual voting members who shall be: (i) Two (2) current Participants who are sworn police officers of the Employer; (ii) The Mayor ofthe 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 AfterJanuarv 1, 2006. On and after January 1, 2006, the Board shall be made up of seven (7) mdlVldual voting members who shall be: (i) Three (3) current Participants who are sworn police 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 (c) Election. The City Clerk of the Employer shall conduct an election during November of each calendar year for the election of the one (1) police officer Participant memher 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 thirty (30) days after written notice thereof has been delivered as required hereinbefore, 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 termination of his 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 in 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 hereinbefore. (f) Vacancies. Any vacancy on the Board arising as a result of the resignation, removal, death or otherwise of a police officer Participant member shall be filled by appointment by the remaining Board members of another police officer Participant. Such appointment shall be made within sixty (60) days from the date ofthe 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 mcur in 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 1, 2006. Each member of the Board who is elected by the current Participants prior to January 1, 2006 shall serve for staggered two (2) year terms or until the appointment of his 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 1, 2006 shall serve for staggered three (3) year terms or until the appointment of his or her successor. 41 (c) Determination 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 in 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 remaining members of the Board may exercise any and all of the powers, authority, duties and discretion conferred upon the Board pending the filling of the vacancy 9 04 GENERAL. The Board shall have the following powers and duties: (a) To select such officers as it deems necessary, who need not be members of the Board; (b) To determine the rights of eligibility of an Employee to participate in 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; - (f) To review and render deciSiOns respecting a claim for (or demal of a claim for) a benefit under the Plan, (g) To furnish the Employer with mformation 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 in Act Section 3(38)), each of whom shall have full power and authority to manage, acquire or dispose (or direct the Trustees with respect to acqUisition or disposition) of any Plan asset under its control, and CD To establish and maintain a funding 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 pertinent Employee information and Plan data in order to establish the funding policy of the Plan and to determine the appropriate methods of carrying out the Plan's objectives. The Board shall communicate periodically, as it deems appropriate, to the Trustees and to any Plan Investment Manager the Plan's short-term and long-term financial needs so investment policy can be coordinated 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 REPRESENTATIVE. The Board may authorize anyone (1) 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 authority by an instrument signed by all members. 9.08 INTERESTED MEMBER. No member of the Board may decide or determine any matter concerning 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 m his or her capacity as a Participant. 9.09 INDIVIDUAL ACCOUNTS The Board will establish and maintain 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 maintained for each Participant to record his or her interest m the Trust Fund attributable to hiS or her share of Employer Contributions and Forfeitures. A Participant Mandatory Contributions Account will be so established and maintained 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 4.01. A Participant Voluntary Contributions Account will be so established 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 established and maintained for each Employee to record his or her interest in 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 maintenance of separate Accounts, unless required or permitted 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 provislOns 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 11 The Board shall maintain records of itS activities. 910 VALUE OF PARTICIPANT'S ACCRUED BENEFIT. If any or all Plan investment accounts are pooled, each Participant's Account(s) has an undivided interest in the assets comprising 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 insurance contracts) bears to the total net credit balance in the Accounts (exclusive of the cash value of the inCidental benefit msurance contracts) of all Participants, plus the cash surrender value of any incidental benefit insurance contracts held by the Trustees on the Participant's life. If any or all Plan investment accounts are Participant directed, the directing 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 11 ALLOCATION AND DISTRIBUTION OF NET INCOME. GAIN OR LOSS This Section 9.11 applies solely to the allocation of net mcome, gain 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 III. (a) Valuation Date. A "valuation date" under thiS Plan is each Accounting Date and any other valuation date the Board elects. The Board may elect alternative valuation dates for the different Account types which the Board maintains under the Plan. As of each valuation date, the Board must adjust Accounts to reflect net income, gain or loss since the last valuation date. The valuation penod 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, gain 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 mamtains 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 in the Participant's Account as of the beginning of the valuation period. The weighted portion is a fraction, the numerator of which is the number of months in the valuation period, excludmg each month in the valuation period which begins prior to the contribution date of the applicable contributions, and the denominator of which is the number of months in the valuation period. The Board may elect to substitute a weighting period other than months for purposes of this weighted average allocation. If the Board elects to apply the daily valuation method, the Board will allocate the net income, gain 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 arising under the Plan, for amounts charged during the valuation period to the Accounts in accordance With Section 9 13 (relating to distributions) and for insurance premiums and for the cash value of incidental benefit insurance 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 income (or net loss), including the increase or decrease in the fair market value of assets, since the last valuation date. (c) Trust Fund (Pooled) Investment Accounts. A pooled mvestment account is an Account which is not a segregated investment Account or an individual investment Account. (d) Segregated Investmcnt Accounts. A segregated investmcnt Account receives all income it earns and bears all expense or loss it incurs. The Board may establish for a Participant a segregated mvestment 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 invest 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 individual mvestment Account is an Account which is subject to Participant or (if permitted) Beneficiary self-direction under Section 8.10 An mdividual investment Account receives all mcome 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 arising from Section 5 05 after the Board has made all other allocations, changes or adjustment to the Account for the valuation period. (f) Code &415 Excess Amounts. An Excess Amount or suspense account described m ARTICLE III does not share in the allocation of net income, gam or loss described m this Section 9.11 9.12 INDIVIDUAL STATEMENT As soon as practicable after the Accountmg Date of each Plan Year, the Plan Administrator will 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 information the Plan Administrator deems appropriate. No Participant, except a member of the Board, shall have the right to mspect 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. 913 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 administration expenses mcurred 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 9.14 (a) Attempt to Locate. The Board will use one or more of the following methods to attempt to locate a lost Participant: (1) 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 forwarding program under Revenue Procedure 94-22 (or similar or successor guideline); 45 (3) use of a commercial locator service, the interest or other general search method; or (4) use of the Social Security Admimstration search program. (b) Failure to Locate. If a lost Participant remains unlocated for one (1) year following the date of the Board's first attempts to locate the lost Participant using one or more of the methods described in Section 9.14(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 in 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, gains or losses occurrmg 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 in which the Board restores the forfeited Account. If the Board forfeits a lost Participant's Account under thiS Section 9 .14(b), such forfeiture will be of the entire Account of the lost Participant, including any and all Participant contributions. (c) Nonexclusivity and Uniformity. The provisions of Section 9 14 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 admmister the Accounts of lost Participants, including the default rollover - under Section 6.05(b)(5) and such other methods as the Revenue Service or the U S. Department of Labor ("DOL") may m the future specify. The Board will apply Section 9 14 m a reasonable, uniform and nondiscriminatory manner, but may in determining a specific course of action as to a particular Account, reasonably take mto account differing circumstances such as the amount of a lost Participant's Account, the expense in 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 9.14 and which are associated with the lost Participant's Account. 915 PLAN CORRECTION The Board in conjunction with the Employer may undertake such correction of Plan errors as the Board deems necessary, including 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 authority under the prior sentence, the Board, as it determines to be reasonable and appropnate, may undertake correction of Plan document, operational, demographic and Employer eligibility failures under a method described in the Plan or under the Employee Plans Compliance Resolution System ("EPCRS") or any successor program(s) to EPCRS The Board, as it determines 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 401(k) arrangement, the Board to correct an operational error, may require distributions from the Plan of elective deferrals or vested matching contributions, including earnings, where such amounts result from an operational error other than 46 a failure of Code g415, Code g402(g), a failure of the ADP or ACP tests, or a failure of the multiple use hmItahon. 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 involved must be made within 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 appropriate. 10 02 RECEIPT OF CONTRIBUTIONS. The Trustees shall be accountable to the Employer for the funds contributed to the Trustees by the Employer. 10.03 INVESTMENT POWERS (a) Except as provided m Section 1003(b), the Trustees shall have full discretion and authority with regard to the investment of the Trust Fund, except with respect to a Plan asset under the control or direction of a properly appointed Investment Manager or with respect to a Plan asset subject to Employer or Participant direction of investment. The Trustees shall coordinate their investment policy with Plan financial needs as commullicated to them by the Board. The Trustees are authorized and empowered, subject to the provislOns of Section 1O.03(b), with the following powers, rights and duties: (1) To invest any part or all of the Trust Fund m any common or preferred stocks, open-end or closed-end mutual funds, repurchase agreements, United 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 mdirect obligations of the United States Government or its agencies, improved or ullimproved real estate situated in the United States, limited partnerships, insurance contracts of any type, mortgages, notes or other property of any kind, real or personal, and to buy or sell options on common stock on a nationally recognized exchange with or without holding the underlying common stock, as a prudent man would do under like circumstances With due regard for the purposes of this Plan. Any investment made or retained by the Trustees m good faith shall be proper but must be of a kind constituting a diversification considered by law suitable for trust investments; (2) To retain in cash so much of the Trust Fund as it may deem advisable to satisfy liquidity needs of the Plan and to deposit any cash held m the Trust Fund m a bank account at reasonable interest, including, if a bank is acting as Trustees, specific authority to invest 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 investment of such assets and which the Plan incorporates by this reference) as described in Code Section 584 which the Trustees (or an affiliate of the Trustees, as defined in Code Section 1504) maintains exclusively for the collective investment of money contributed by the bank (or the affiliate) in 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, in 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, in the discretiOn of the Trustees; (7) To have with respect to the Trust all of the rights of an individual owner, including the power to give proxies, to participate in any voting trusts, mergers, consolidations or liqUidations, and to exercise or sell stock subscriptions or conversion rights, (8) To lease for oil, gas and other mineral purposes and to create mineral severance by grant or reservation, to pool or unitize interests m oil, gas and other mmerals; and to enter mto operating agreements and to execute division and transfer orders, (9) To hold any securities or other property in the name of the Trustees or their nominee, with depositories or agent depositories or in another form as they may deem best, with or without disclosing the trust relationsrup; - (10) To perform any and all other acts in the judgment of the Trustees necessary or appropriate for the proper and advantageous management, investment and distribution of the Trust; (11) To retain any funds or property subject to any dispute without liability for the payment of interest, 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 furnish to the Employer, (specifically the City Manager, Finance Director and City Attorney) the Plan Administrator 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 investments, 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 stating the assets of the Trust held at the end of the Plan Year, which accounts shall be conclusive on all persons, including 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, maintain or defend any litigation necessary in connection with the administration of the Plan, except that the Trustees shall not be obhged 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 shall 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 include a statement of the available Forfeiture amount on an annual basis. (b) Anything contained herein to the contrary notwithstanding, the following provisions shall apply- (1) The provisions of this Section 1O.03(b)(1) shall be effective prior to July 1, 1997. Anything contained herein to the contrary notwithstanding, the Trust Fund shall be invested by the Trustees; provided that, subject to the limitations on mvestments described in the CRS, Section 15-1-304, as amended, the Trustees may mvest all or any part of the fund in the types of investments authorized by CRS Sections 15-1-304, 31-30-1012(5) and 31-30-1012(8), including, but not limited to, obligations of the United States Government and in obligations fully guaranteed as to principal and interest by the United States Government, in state or municipal bonds, m corporate notes, bonds, or debentures, convertible or otherwise, in railroad equipment trust certificates, m real property and in 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 investment agreements, and the foregoing investments may be _ made Without limitation as to the percentage of the book value of the assets of the retirement fund so invested. Investments may also be made in either common or preferred corporate stocks, but the original cost of all mvestments in corporate stocks or corporate bonds, notes, or debentures which are convertible into stock, or in investment 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 in 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 single 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 in Code Sections 501 (c)(2) and 501 (c)(25). In accordance with the provisions of CRS Section 31-30-10 12( 5), as used in thiS Section 10 O3(b)(1), unless the context otherwise requires, (i) "book value" means current market value, (ii) "current market value" means the current exchange price 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 FPP A, and (iii) "original cost" means the acquisition cost of an asset. (2) The provisions of this Section 10 03(b)(2) shall be effective on and after July 1, 1997. Anything contained herein to the contrary notwithstanding, the Trust Fund shall be invested 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 Investor Act, Article 1.1 of Title 15, CRS. Such investments shall be audited at 50 least biennially. To the extent the investment limitations described herebefore in this Section 10 03(b)(2) are modified or repealed by applicable Colorado law, then the provisions of this Section 1 0.03(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 writmg. The Trustees shall furnish the Board or the Plan Administrator with whatever information relating to the Trust Fund the Board or Plan Administrator considers necessary 10.05 FEES AND EXPENSES FROM FUND. The Trustees shall serve without compensation for services rendered as a Trustee, unless authorized 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 incurred by them in their administration of the Plan from the Trust Fund unless the Employer pays the fees and expenses. 1006 PARTIES TO LITIGATION Except as otherwise provided by applicable law, only the Employer, the Plan Administrator, the Board, and the Trustees shall be necessary parties to any court proceeding involving 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 in any proceedmg shall be conclusive upon the Employer, the Plan Administrator, the Board, the Trustees, Participants and Beneficiaries. - 10.07 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 m their opiruon 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 acting 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 distributlOn 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 authorized agent, and shall not be liable to any person whomsoever m so doing. The certificate of the Trustees that they are acting in accordance with the Plan shall be conclusive in favor of any person relying on the certificate. 10.11 RESIGNATION. The Trustees may resign at any time as Trustees of the Plan by giving thirty (30) days' written notice in advance to the Employer and to the Board. 1012 REMOVAL. A Trustee may be removed in the same manner as a member of the Board, as set forth in Section 9 01(e). Vacancies m the Trustees shall be filled in the same manner as vacancies in the Board, as set forth in Section 9 01(f). 1013 INTERIM DUTIES AND SUCCESSOR TRUSTEES. Each successor Trustee shall succeed to the title to the Trust vested in his or her predecessor by accepting in writing his or her appointment 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 writing 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 ministerial, 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 incurring any liability or responsibility for so doing. 10.14 V ALUA TION OF TRUST The Trustees shall value the Trust Fund as of each Accounting Date to determine 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. 10.15 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 appoint, nor shall the Trustees be under any obligation to invest or otherwise manage any asset of the Plan which is subject to the management of a properly appointed Investment Manager. The Board, the Trustees and any properly appomted 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. 10.16 INVESTMENT IN GROUP TRUST FUND. The Trustees, for collective investment purposes and with the permission of the Employer, may combine into one (1) trust fund the Trust created under this Plan with the trust created under any other qualified retirement plan the Employer maintams. 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 planes) in which he or she is a Participant. 10 17 MANNER OF ACTION Any action or decision of the Trustees shall be decided by majority vote of the Trustees then appointed and qualified. 52 ARTICLE XI PROVISIONS RELATING TO INSURANCE AND INSURANCE COMPANY 11.01 INSURANCE BENEFIT. To the extent permitted under applicable Colorado law, the Board may elect to provide incidental life insurance benefits for insurable Participants who consent to life insurance benefits by signing the appropriate insurance 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 following percentages of the aggregate of the Employer's contributions allocated to any Participant's Account: (i) forty-nine percent (49%) in the case of the purchase of ordinary life insurance 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 insurance contract(s) or the universal 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 prior to the Accountmg Date as of which the Board first makes an Employer contribution allocation to the Participant's Account. At an insured Participant's wntten 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 derived from the nonvested component in 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 insurance agent(s) through which the Trustees are to purchase the insurance 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 right reserved to the Trustees to exercise any right or option contained m 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 insurance 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 11.01 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. 11.02 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 starting date (as defined in ARTICLE VI). If the Trustees hold any incidental benefit msurance contract(s) on the life of a Participant 53 when he or she terminates his or her employment (other than by reason of death), the Board must direct the Trustees to proceed as follows: (a) If the entire cash value of the contract(s) is vested in the terminating Participant, or if the contract(s) will have no cash value at the end of the policy year in which termination of employment occurs, the Trustees will transfer the contract(s) the Participant endorsed so as to vest in the transferee all nght, title and interest to the contract(s), free and clear of the Trust; subject however, to restrictions as to surrender or payment of benefits as the issuing insurance company may permit; (b) If only part of the cash value of the contract(s) is vested in the terminatmg Participant, the Trustees, to the extent the Participant's interest in the cash value of the contract(s) is not vested, may adjust the Participant's interest in the value of his or her Account attributable to Trust assets other than incidental benefit insurance contracts and proceed as in (a), or the Trustees must effect a loan from the issuing msurance 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 in which termination 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 in the transferee all right, title and interest 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 insurance company may permit; (c) If no part of the cash value of the contract(s) is vested in the terminating 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 tills Section 11.02 on the Participant's annUity starting date (or as soon as administratively feasible after that date). The Board shall direct the Trustees to not transfer any contract under this Section 11.02 which contains a method of payment not specifically authonzed by Article VI. In this regard, the Trustees either shall convert such a contract to cash and distribute the cash instead of the contract, or before making the transfer, require the issuing company to delete the unauthorized method of payment optiOn from the contract. 11.03 DEFINITIONS For purposes of thiS Article XI. (a) "Policy" means an ordinary 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 insurance 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 insurance. 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 being submitted in accordance with the Plan, will issue insurance coverage, 54 either as a standard risk or as a risk m an extra mortality classification. 11.04 DIVIDEND PLAN. The dividend plan shall be premium reduction unless the Trustees in their discretion decide to the contrary. The Trustees shall use all premiums 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 ordinary life insurance contracts shall contain guaranteed cash values with as uniform baSiC options as are possible to obtain. 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 msurance company is required to examine the terms of this Agreement nor be responsible for any action taken by the Trustees. 11.07 INSURANCE COMPANY RELIANCE ON TRUSTEES' SIGNATURE. For the purpose of makmg application to an insurance company and in the exercise of any right or option contained m any policy, the insurance company may rely upon the signature of the Trustees and shall be saved harmless and completely discharged in acting at the direction and authorization of the Trustees. 11.08 ACQUITTANCE. An insurance company shall be discharged from all liability for any amount paid to the Trustees or paid m 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 within funds, and supply such mformation as may be necessary for the proper administration of the Plan under which it is carrying insurance benefits. 55 ARTICLE XII MISCELLANEOUS 12.01 EVIDENCE. Anyone required to give evidence under the terms of the Plan may do so by certificate, affidavit, document or other information which the person to act in reliance may consider pertinent, reliable and genume, and to have been signed, made or presented by the proper party or parties. Both the Board and the Trustees shall be fully protected in acting and relying upon any eVidence described under the immediately preceding sentence. 12.02 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 inquire 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 eligible 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 12.03 FIDUCIARIES NOT INSURERS The Trustees, the Board, the Plan Administrator and the Employer m 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. - 12.04 W AlVER 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 impliedly prohibit such a waiver. 12.05 SUCCESSORS. The Plan shall be binding upon all persons entitled to benefits under the Plan, their respective heirs 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 masculine shall apply to the femirune where applicable, and wherever the context of the Employer's Plan dictates, the plural shall be read as the singular and the singular as the plural. The headings of Articles and Sections are included solely for convenience of reference, and if there be any conflict between such headings and the text of this Plan, the text will control. 12.07 STATE LAW Colorado law shall determine all questions arising with respect to the provisions of this Agreement except to the extent Federal statute supersedes Colorado law 12.08 EMPLOYMENT NOT GUARANTEED Nothing contained 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 right to continue employment, any legal or eqUitable right against the Employer, or Employee of the Employer, or against the Trustees, or its agents or employees, or against the Plan Administrator, except as expressly provided by the Plan, the Trust, by a separate agreement, or by applicable law. Nothing contained 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 right of the Employer to employ, discipline or discharge any Employee or Participant. 12.09 EXEMPTION FROM ACT AND STATUTORY CONSTRUCTION. It is intended that this Plan IS a "governmental plan" as defined in Act Section 3(32) and is therefore exempt from the applicability of the Act and certain provisions of the Code related to tax qualified plans and trusts, except to the extent, and only to the extent, expressly provided to the contrary herein. Nothing contained herein shall be interpreted 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. 12.10 QUALIFIED MILITARY SERVICE. Notwithstanding 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 414(u)(4). The provislOns of this Section 12.10 shall be effective as of December 12, 1994. - 57 - ARTICLE XIII EXCLUSIVE BENEFIT, AMENDMENT, TERMINATION 13.01 EXCLUSIVE BENEFIT. Except as provided under Article III, relating to utilization of Forfeitures to reduce the Employer's Contribution, the Employer shall have no beneficial interest in any asset of the Trust and no part of any asset m the Trust shall ever revert to or be repaid to an Employer, either directly or mdirectly; nor prior to the satisfaction of all liabilities with respect 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 Beneficiaries. Notwithstanding the foregoing provislOn for impossibility of diversion of Trust assets to the Employer, if the Commissioner of Internal Revenue, upon the Employer's request for imtial 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 increment attributable to the contributions) to the Employer. The Trustees must make the return of the Employer contribution under this Section 13.01 within one (1) year of a final dispositlOn of the Employer's request for initial approval of the Plan. The Plan and Trust shall term mate upon the Trustees' return of the Employer's contributions and earnings 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 participating Employees who are affected by such amendment approve of it; (2) no amendment will reduce the non-forfeitable interest in the Accrued Benefit of any Participant, Former Participant or Beneficiary as of the date of such amendment; and (3) no amendment will result m 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 continued qualification under Section 401 of the Code or the Trust's tax-exempt status under Section 501 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 applicable 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: (1) the Board and the Employer determine that such amendment is required in order to obtain or maintain the plan's or the Trust's imtial or continued qualification under Section 401 of the Code or the Trust's tax-exempt status under Section 501 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 m 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 Beneficiaries 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 rights, duties or responsibilities of the Trustees, the Plan Administrator or the Board without the written consent of the affected Trustees, the Plan Admmistrator or the affected member of the Board. (c) With regard to any amendment of the Plan and Trust Agreement which alters in any way the benefits received by the Participants under the Plan, the Board shall represent and be the agent for the Participants in the negotiations With the Employer regardmg such amendments. 13 03 CONTINUANCE OF THE PLAN. The Employer expects to continue 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 terminate the Plan and Trust, but only if such termination 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 termination of the Plan by the Employer at any time as provided in Section 13.03, an affected Participant's nght to his or her Accrued Benefit shall be one hundred percent (100%) Nonforfeitable. 13 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 tills 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 consolidation 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 term mated immediately before the merger or consolidation or transfer. The Trustees possess the specific authonty to enter mto merger agreements or direct transfer of assets agreements With the trustees of other retirement plans described in Code Section 401 (a), including 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 termination of the Plan, the distribution proVisions of Article VI shall remain 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 administratively 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 rights under the Plan, if the Participant does not elect an immediate distribution pursuant to the precedmg sentence and the distribution provisions of Article VI. The Trust shall continue until the Trustees in accordance with the direction ofthe 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 income, expenses, gams and losses, both realized and unrealized. Upon termination of the Plan, the amount, if any, in a suspense account under Article III shall revert to the Employer, subject to the conditions of the Treasury regulations permitting such a reversion. A resolution or amendment to freeze all future benefit accrual but otherwise to continue maintenance 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 providing benefits to Participants and their Beneficiaries and defraying reasonable expenses of admimstering the Plan and Trust Fund. The Plan and Trust Agreement will, therefore, be construed and administered to follow the spirit and mtent of the Code and applicable Colorado laws. 13.08 APPLICABILITY. The proVisions of this Plan and Trust shall apply only to an Employee who terminates employment on or after the Effective Date. The nghts and Plan Benefits, if any, of an employee of the Employer whose employment terminates prior to the Effective Date shall be determined in accordance with the provislOns of the prior Plan, if any, m effect on the dateAhis or her employment terminated. 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 Trustee Participant Trustee 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 municipality (hereinafter the "Employer"), and the Trustees named on the last page hereof (hereinafter 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 1, 1997, for the purpose of amending and restating in 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 Internal 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 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 2001 ("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 of EGTRRA, and WHEREAS, under applicable Internal Revenue Service procedures, 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. 1 NOW, THEREFORE, in consideration of the premises and the mutual covenants and promises contamed herem, the receipt and sufficiency of which 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 in its entirety as follows. 1 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, insurance premiums, pensions and retirement benefits, received for services performed 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 m Section 1.41. Any reference in this Plan to Compensation is a reference to the definition in this Section 1 09, unless the Plan reference specifies a modification to this definition. The Plan Administration Committee 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 beginning after December 31, 2001, the Trustees in allocating Employer contributions under ARTICLE III and Participant mandatory "picked up" contributions under Section 401 shall not take into 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 CompensatlOn for the applicable "Determination Period." "Determination Period" means the Plan Year. The $200,000 limit on Annual Compensation shall be adjusted for cost-of-living increases in accordance with Code Section 401(a)(17)(B) The cost- of-living adjustment in effect for a calendar year applies to Annual Compensation for the Determination Period that begins with or within such calendar year - 2. Section 3.05(c) ofthe Plan is hereby amended and restated in its entirety as follows: (c) "Maximum Permissible Amount" - For Limitation Years beginning after December 31, 2001, the lesser of (I) $40,000 (or, if greater, the $40,000 amount as adjusted under Code g415(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 following fraction. Number of months in the short Limitation Year 12. The 100% limitation shall not apply to any contribution for medical benefits after separation from service (within the meaning of Section 401(h) or Section 419A(f)(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 in 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 in 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 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 information required by the applicable provislOns of the Code and regulations, the rollover option, the optional forms of benefit in the Plan, including 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 in 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 m _ writing of the remainder of such thirty (30) day period and delivenng such written waiver to the Trustees. (b) DefimtlOns. For purposes of this Section 605, the following 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 include (i) any distribution that is one of a series of substantially equal periodic 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 distributlOn 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 in gross income; provided, however, such portion may be paid only to an individual retirement account or annuity described in Code Sections 408(a) or 408(b), or to a qualified defined contribution plan described in Code Sections 401(a) or 403(b) that agrees to separately account for amounts so transferred, including separately accountmg for the portion of such distribution which is includible in gross mcome and the portion of such distribution which is not so includible. 3 (2) Eligible Retirement Plan. An eligible retirement plan is an individual retirement account described in section 408(a) of the Code, an mdividual retirement annuity described in section 408(b) of the Code, an annuity plan gescribed in 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. An eligible retirement plan shall also mean an annuity contract described in Section 403(b) of the Code and an eligible plan under section 457(b) of the Code which is maintamed by a state, political subdivislOn 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 surviving spouse, or to a spouse or former spouse who is the alternate payee under a qualified domestic relation order, as defined in section 414(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 414(P) of the Code or applicable provisions of CRS, are distributees 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 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 in any successor law or guidance) in lieu of distributing such Nonforfeitable Accrued Benefit to the distributee. - 4. Except as expressly provided for in thiS FIRST 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 FIRST AMENDMENT, the provisions of this FIRST AMENDMENT shall control. 5. This FIRST AMENDMENT is adopted to reflect certam provisions ofEGTRRA. This FIRST AMENDMENT is intended as good faith compliance with the requirements ofEGTRRA 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 31, 2001, and shall supercede any provisions of the Plan to the extent those provisions are inconsistent 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 Tntstee Participant Tntstee 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 (heremafter 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 1, 1997, for the purpose of amendmg and restating in 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 Internal 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 Restructuring 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 Relief Reconciliation Act of 2001 ("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 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, subsequent to GUST and EGTRRA, final Treasury Regulations were issued regarding required minimum dIstribuhons under revised Internal Revenue Code g401(a)(9), and the Internal Revenue Service is requiring that tax qualified plans, including the Plan, adopt conforming 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 Codeg401 (a)(9) relative to required minimum distributions, as set forth hereinafter. NOW THEREFORE, in consideration of the premises and mutual covenants and promises contained 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 determining required mmimum distributlOns for calendar years beginning with the 2002 calendar year - 1.2. Coordination with Minimum Distribution Requirements Previously in Effect. If the effective date of this Amendment is earlier than calendar years beginning with the 2003 calendar year, required minimum distributiOns for 2002 under this Amendment will be determined as follows. If the total amount of 2002 required mimmum distributions under the Plan made to the distributee prior to the effective date of this Amendment equals or exceeds the required minimum distributions determined 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 prior 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 minimum distributions for 2002 made to the distributee will be the amount determined under this Amendment. 1.3 Precedence. The requirements of this Amendment will take precedence over any inconSistent provisions of the Plan. 1.4 Requirements of Treasury Regulations Incorporated. All distributions required under this Amendment will be determined and made in accordance with the Treasury Regulations under Section 401 (a)(9) of the Internal Revenue Code. 1.5. TEFRA Section 242(b)(2) Elections. Notwithstanding the other provislOns of this Amendment, distributions may be made under a designation made before January 1, 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 Beginning Date. The Participant's entire interest will be distributed, or begin to be distributed, to the Participant no later than the Participant's required beginning date. 2.2. Death of Participant Before Distributions Begin. If the Participant dies before distributions begin, the Participant's entire interest will be distributed, or begin 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 in Article VI, distributions to the surviving spouse will begin by December 31 of the calendar year immediately following the calendar year in which the Participant died, or by December 31 of the calendar year in which the Participant would have attained age 70V" 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 31 of the calendar year immediately followmg the calendar year in which the Participant died. (c) Ifthere is no designated beneficiary as of September 30 of the year following the year of the Participant's death, the Participant's entire interest will be distributed by December 31 of the calendar year containing 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 survivmg 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 begin to the surviving 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 beginning date (or to the Participant's survivmg spouse before the date distributions are required to begin 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 insurance company or in a single 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 interest is distributed in the form of an annuity purchased from an insurance company, distributions thereunder will be made in accordance with the requirements of Section 401(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 dividing the Participant's account balance by the distribution period in the Uniform Lifetime Table set forth in Section 1 401(a)(9)-9 of the Treasury Regulations, using the Participant's age as of the Participant's birthday in the distribution calendar year; or (b) if the PartiCipant's sole deSignated beneticiary for the distribution calendar year is the Participant's spouse, the quotient obtained by diViding the Participant's account balance by the number in the Joint and Last Survivor Table set forth in Section 1.401(a)(9)-9 of the Treasury Regulations, usmg the Participant's and spouse's attained 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 Participant's Death. Required mmimum distributions will be determined under this Article 3 beginnmg with the first distribution calendar year and up to and including the distribution calendar year that includes the Participant's date of death. - ARTICLE IV REQUIRED MINIMUM DISTRIBUTIONS AFTER P ARTICIP ANT'S DEATH 4.1 Death On or After Date DistributlOns Begin. (a) Participant Survived by Designated Beneficiary. If the Participant dies on or after the date distributions begin and there is a designated beneficiary, 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 longer of the remaining life expectancy of the Participant or the remaining life expectancy of the Participant's designated beneficiary, determmed as follows. (l) The Participant's remaining 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 survivmg spouse is the Participant's sole designated beneficiary, the remaining 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 in that year For distribution calendar years after the year of the surviving spouse's death, the remaining life expectancy of the surviving spouse is calculated using the age of the surviving 4 spouse as of the spouse's birthday in 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 remaining life expectancy is calculated using the age of the beneficiary in the year following the year of the Participant's death, reduced by one for each subsequent year (b) No Designated Beneficiary. If the Participant dies on or after the date distributions begin 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 dividing 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 by Designated Beneficiary. Except as provided in Article VI, if the Participant dies before the date distributions begin and there is a designated beneficiary, 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 dividing the Participant's account balance by the remaimng life expectancy of the Participant's designated beneficiary, determined as provided in Section 4 1. (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 following the year of the Participant's death, distribution of the Participant's entire interest will be completed by December 31 of the calendar year containing the fifth anniversary of the Participant's death. - ( c) Death of Surviving Spouse Before Distributions to Surviving Spouse Are Required to Begin. If the Participant dies before the date distributions begin, the Participant's surviving spouse is the Participant's sole designated beneficiary, and the survivmg 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 surviving spouse were the Participant. ARTICLE V DEFINITIONS 5.1. Designated beneficiary The individual who is designated as the Beneficiary under the Plan and is the designated beneficiary under Section 401 (a)(9) of the Internal Revenue Code and Section 1.401 (a)(9)-1, Q&A-4, of the Treasury Regulations. 5.2. Distribution calendar year. A calendar year for which a minimum distribution is required. For distributions beginnmg before the Participant's death, the first distribution calendar 5 year is the calendar year immediately preceding the calendar year which contains the Participant's reqUired beginning date. For distributions begInnmg after the ParticIpant's death, the first distribution calendar year is the calendar year in which distributions are required to begin under Section 2.2. The required minimum distribution for the Participant's first distribution calendar year will be made on or before the Participant's required beginning date. The required minimum distribution for other distribution calendar years, including the required minimum distribution for the distribution calendar year in which the Participant's required beginnmg date occurs, will be made on or before December 31 of that distribution calendar year. 5.3. Life expectancy. Life expectancy as computed by use of the Single Life Table in Section 1.401 (a)(9)-9 of the Treasury Regulations. 54. Participant's account balance. The account balance as of the last valuation date in the calendar year immediately preceding the distribution calendar year (valuation calendar year) increased 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 includes any amounts rolled over or transferred to the Plan either m the valuation calendar year or in the distribution calendar year if distributed or transferred in 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 begin. - ARTICLE VI INDIVIDUAL ELECTIONS REGARDING 5-YEAR RULE AND LIFE EXPECTANCY RULE Participants or beneficiaries may elect on an individual baSiS whether the 5-year rule or the life expectancy rule in 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, surviving spouse's) death. If neither the Participant nor beneficiary makes an election under this paragraph, distributions will be made in accordance with Sections 2.2 and 4.2 of this Amendment. ARTICLE VII EFFECT OF THIS SECOND AMENDMENT Except as expressly provided for in 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 (hereinafter 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 1, 1997, for the purpose of amending and restating in 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 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 Restructuring 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 Relief Reconciliation Act of 2001 ("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 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 issued regarding required mmimum distributions under revised Internal Revenue Code Section 40I(a)(9), and the Internal Revenue Service required that tax qualified plans, including the Plan, adopt conforming amendments to their plans which incorporate 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 minimum 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 410(a)(31). NOW THEREFORE, in 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 6.01 of the Plan is hereby amended by adding new Section 6.01(c) as - (c) Mandatorv Distributions Greater than $1.000.00 Anything contained herein to the contrary notwithstanding, in the event of either the failure of a Participant to make a distribution election within 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 in Section 6.01(b), and if the Participant's distributable Nonforfeitable Accrued Benefit under the Plan exceeds $1,00000, then the Board will distribute such Participant's Nonforfeitable Accrued Benefit under the Plan in a direct rollover to an individual retirement plan designated by the Board. 2. This THIRD AMENDMENT shall be effective with respect to Participant distributions made on or after March 28, 2005 (or such later date applicable to governmental plans). 3. Except as expressly provided for in this THIRD AMENDMENT, all of the provisions of the Plan shall continue to remain in full force and effect. In the event of a conflict bctwccn the provisions of the Plan and the provisions of this THIRD AMENDMENT, the provisions of this THIRD AMENDMENT shall control. 2 IN WITNESS WHEREOF, the Employer and the Trustees have executed this THIRD AMENDMENT this day of , 2005. ATTEST By' Its - "EMPLOYER" CITY OF WHEAT RIDGE By: Its "TRUSTEES" Mayor Chief of Police Treasurer City Clerk Participant Trustee Participant Trustee 3 ITEM NO. ~ REQUEST FOR CITY COUNCIL ACTION ~~ J:4t 'r$~' nil un B...=..... COUNCIL MEETING DATE: October 10, 2005 TITLE: RESOLUTION 49-2005 - A RESOLUTION REPEALING AND REENACTING THE CITY BUDGET AND APPROPRIATING SUMS OF MONEY TO THE VARIOUS FUNDS AND SPENDING AGENCIES IN THE AMOUNTS SPECIFIED FOR THE CITY OF WHEAT RIDGE, COLORADO FOR THE 2006 BUDGET YEAR D PUBLIC HEARING D BIDS/MOTIONS I2.$J RESOLUTIONS D ORDINANCES FOR 1 ST READING (Date' _) D ORDINANCES FOR 2ND READING Quasi-Judicial: D Yes I2.$J No - ~ra City Mana ~ EXECUTIVE SUMMARY: Sections 10.7 and 10.9 of the Wheat Ridge City Code require that a public hearing on the proposed budget be held before its final adoption and that the budget be adopted by resolution on or before the final day (December 15,2005) established by statute for the certification of the next year's tax levy to the county Budget meetings were held on June 27, 2005 and July 25,2005 and a Public Hearing was held on September 26, 2005 to provide opportunities for citizens to comment on the budget. The proposed 2006 budget incl udes $22,361 ,941 in expenses in the General Fund, $7,765,000 m expenses in the Capital Investment Fund and $4,468,141 in expenses in Special Revenue Funds for a total budget of $34,595,082, excluding transfers. COMMISSION/BOARD RECOMMENDATION: None STATEMENT OF THE ISSUES: Wheat Ridge's total General Fund operating budget for 2006 is $25,811,941, which mcludes a $3,450,000 transfer to the CIP Fund and a $1 ,000,000 contribution to WR2020. The City's total 2006 operatmg budget, excludmg transfers and contributions, represents a 4 0% increase compared to the adjusted 2005 Budget. When you include the contribution to WR2020 the 2006 operatmg budget mcreases by 8 9% compared to the adjusted 2005 Budget. The projected 2006 General Fund ending fund balance is $5,679,478 or 22.0% of expenditures. The proposed total City budget for 2006, which includes the General Fund, CIP and Special Revenue Funds is $34,595,082 excluding transfers. WHEAT RIDGE GOALS 2010 The Mayor, City Council and staff have worked together over the last two years to develop a strategic plan includmg a vision, plan and action agenda to move the City forward. The goals that will influence every decision Council and staff will consider in the next five years are . Creating a Sustainable Government . City Prepared for Growth and Opportunities . Strong Partnership between City and Community . 1-70 Corridor as a Major Commercial Center . Better Quality Housing Stock . Redevelopment of Wheat Ridge City Center . Leisure Amenities for Families This budget reflects the Mayor and Council's vision and goals by "investing in the future afthe City " The proposed 2006 Budget contmues to develop and build on the governmental, Civic, and financial foundations needed for the City of Wheat Ridge to be successful now and in the future and to be "A Great Place to Live!" The City was fortunate enough to successfully pass a 1 percent increase in the sales and use tax rate which became effective January 1,2005. Although retail sales have been decreasing in 2005 compared to 2004, the City is projected to realize an additional $6.0 million in new sales and use tax revenues in 2005 compared to 2004. This budget proposes to mvest these new dollars in the future of the City by building on those foundations necessary for success. This budget includes, but is not limited to, the followmg investments' . Capital dollars for infrastructure improvements to improve traffic flow to the proposed Cabela's development and other potential developments. Funding for economic development opportunities including busmess retentlOn and the creation of WR2020 Competitive wage and benefit package to retain and recruit employees who can help the Mayor and Council meet their goals. Additional staff to aSSist in long term planning, public safety, quality of life and employee retention and accomplishing the goals set forth by Mayor and Council. Information technology improvements to give employees the tools they need to be successful. . . . . adjusted 2005 Budget. When you include the contribution to WR2020 the 2006 operating budget increases by 8.9% compared to the adjusted 2005 Budget. The projected 2006 General Fund ending fund balance is $5,679,478 or 22.0% of expenditures. The proposed total City budget for 2006, which includes the General Fund, CIP and SpeCial Revenue Funds is $34,595,082 excluding transfers. WHEAT RIDGE GOALS 2010 The Mayor, City Council and staff have worked together over the last two years to develop a strategic plan includmg a vislOn, plan and action agenda to move the City forward. The goals that will influence every decision Council and staff will consider m the next five years are . Creating a Sustainable Government . City Prepared for Growth and Opportunities . Strong Partnership between City and Community . 1-70 Corridor as a Major Commercial Center . Better Quality Housing Stock . Redevelopment of Wheat Ridge City Center . Leisure Amenities for Families This budget reflects the Mayor and Council's vislOn and goals by "investing in the future of the City " The proposed 2006 Budget continues to develop and build on the governmental, civic, and financial foundations needed for the City of Wheat Ridge to be successful now and in the future and to be "A Great Place to Live!" The City was fortunate enough to successfully pass a 1 percent increase in the sales and use tax rate which became effective January 1, 2005. Although retail sales have been decreasmg in 2005 compared to 2004, the City is projected to realize an additional $6.0 million in new sales and use tax revenues in 2005 compared to 2004. This budget proposes to invest these new dollars in the future of the City by building on those foundations necessary for success. This budget includes, but is not limited to, the following investments: . Capital dollars for mfrastructure improvements to improve traffic flow to the proposed Cabela's development and other potential developments. Funding for economic development opportunities mcludmg busmess retention and the creatiOn of WR2020 Competitive wage and benefit package to retain and recruit employees who can help the Mayor and Council meet their goals. Additional staff to aSSist m long term planning, public safety, quality of life and employee retention and accomplishing the goals set forth by Mayor and Council. Information technology improvements to give employees the tools they need to be successful. . . . . REVENUES AND EXPENDITURES The total proposed 2006 Budget is $34,595,082 excluding transfers of$3,450,000 from the General Fund to the CIP Fund. The budget is based on projected revenues of$28,826,975 excluding transfers. In additlOn, the beginnmg fund balance for 2006 is projected at $13,853,098 which brings the total available funds to $42,680,073. This will provide for a projected ending fund balance of$8,084,991 General Fund General Fund revenue is projected at $24,733,759 which is a -0 1% decrease compared to 2005 estimated revenues. Starting in 2006, the General Fund will not receive an annual transfer from the Open Space Budget to offset open space maintenance expenses. However, those expenses will be budgeted directly in the Open Space Budget as was recommended by the City's mdependent auditors. In addition, the beginning fund balance for 2006 is projected at $6,757,660 which brings the total aVailable funds forthe General Fund to $31,491,419 General fund expenditures total $25,811,941, which includes a $3,450,000 transfer to the CIP Fund and a $1,000,000 contribution to WR2020. General Fund expenditures, excluding transfers and contributions, represent a 4.0% increase compared to the adjusted 2005 Budget and an 8.3% increase compared to the estimated 2005 Budget. This will provide for a projected ending fund balance of $5,679,478 or 22.0% of expenditures. The General Fund budget Will expenence an increase in 2006 primarily due to the followmg new expenditures or expenditure increases: . Workers' Compensation Insurance $72,444 . Employee Salaries - Sworn Positions $400,000 Civilian PositlOns $380,000 . New Employee POSitions $540,000 . Information Technology $200,000 . Fuel and Energy Expenses $80,000 Capital Investment Program Fund CIP Fund revenue is projected at $3,830,000 which is a 27.2% decrease compared to the 2005 estimated revenue of $4,871,400. In addition, the beginning fund balance for 2006 is projected at $3,945,990 which brings the total available funds for the CIP Fund to $7,775,990 The CIP Fund will experience a decrease in revenues in 2006 compared to 2005 because a one-time transfer of $1,275,000 was made from the General Fund to the CIP Fund in 2005 for the Youngfield Street widening project. The project will not start in 2005 so the funds will carryover into the 2006 CIP Budget. The 2006 CIP Budget includes major street improvement projects at 32nd and Y oungfield Street, 38th Avenue to 44th Avenue on Youngfield Street, and 46th Avenue to 1-70 between Estes and Carr. In addition, funds are proposed for annual CIP projects including drainage and street improvements, street light installation, traffic signal improvements, buildmg mfrastructure and parking lot improvements, GIS updates and a contribution to the Wheat Ridge Business District. CIP expenditures total $7,765,000 which is an 11 8% mcrease compared to the adjusted 2005 Budget and about a 109.5% increase compared to the estimated 2005 Budget. This will provide for a projected ending fund balance of$10,990. Open Space Fund Open Space revenue is projected at $900,250 which is a 20 8% decrease compared to the 2005 estimated revenue of $1,087,250. In additlOn, the beginning fund balance for 2006 is projected at $257,652 which brings the total available funds for the Open Space Fund to $1,157,902. Open Space projects for 2006 include open space improvements, park maintenance projects, Randall Park irrigation replacement, Prospect Park ball field lights, open space sign fabrication, Kendall Park design, and bleacher replacement. Open Space expenditures total $1,148,115 which is a 2.6% decrease compared to the adjusted 2005 Budget and a 6 8% mcrease compared to the estimated 2005 Budget. This Will provide for a projected ending fund balance of $9,787. Starting in 2006, the Open Space Fund will no longer make a transfer to the General Fund to cover open space expenditures. However, the Open Space Fund will budget those expenses directly in its budget as recommended by the City's independent auditor Conservation Trust Fund Conservation Trust revenue is projected at $378,000, which is a 32.6% increase compared to the 2005 estimated revenue of $285,000 In addition, the beginning fund balance for 2006 is projected at $250,855 which brings the total available funds for the Conservation Trust Fund to $628,855 Conservation Trust projects for 2006 mclude Stevens Elementary playground, Creekside Park restroom and concession bUilding, Creekside Park dugout roofs, facility improvements, Louise Turner Park playground improvements, Panorama Park sewer line replacement, and curb and gutter at Panorama Park, Randall Park and Richards Hart Estate. Conservation Trust expenditures total $465,000 which is a 6.5% decrease compared to the adjusted 2005 Budget and a 44.6% increase compared to the estimated 2005 Budget. This will provide for a projected ending fund balance of $163,855. - Recreation Center Operations Fund Recreation Center Operations revenue for 2006 is projected at $2,087,766, which is a 2.7% decrease compared to the 2005 estimated revenue of$2,144,939. In addition, the beginnmg fund balance for 2006 is projected at $2,402,470 which brings the total available funds for the Recreation Center Operations Fund to $4,490,236. Recreation center expenditures total $2,339,964, which is a 06% decrease compared to the adjusted 2005 Budget and a 1.9% mcrease over the estimated 2005 Budget. This will provide for a projected ending fund balance of $2,150,272, of which $205,000 will be set aside as a reserved maintenance fund balance for Recreation Center equipment replacement and bUilding maintenance Miscellaneous Special Revenue Funds Several other miscellaneous Special Revenue Funds are also included in this Budget to track revenues and expenditures that are legally restricted for specific purposes or to simplify the budgeting process. Those funds include Police Investigation, Municipal Court, Richards Hart Estate, Senior and Hotel/Motel. Detailed revenue and expenditure information for these funds can be found in the Special Revenue Funds and the Line Item Accounts sections of the Budget. STAFFING Personnel-related expenses account for the largest portion of the City's budget; therefore, maintaining this investment is a high pnonty Through a periodic compensation review process, a survey of the 2005 pay scales for the City's positions was conducted for the purpose of determining what wages are generally prevailing in similar cities within the Denver metropolitan area. The final analysis of the market comparison mdicated that the 2005 pay range minimums and maximums warrant adjustment in order to be competitive in the market. As a result of the data received pertaining to the law enforcement (sworn) positiOns, effective July 2, 2005, the City adopted a new pay plan that encompassed the positions: Police Recruit, Police Officer, Police Sergeant, and Police Commander The new plan is a six (6) step pay plan that maintains the salaries for these positlOns at the 70th percentile of the market range. The proposed 2006 Budget includes a new compensation plan for all civilian (non-sworn) positions to become effective January 1,2006. The new compensation plan costs approximately $380,000 and mcludes the following changes: . Assignment of each position to an appropriate "job-family" category similar to Equal Employment Opportunity Commission placement. . The pay range for each position will be market-based that maintains the salaries for these positions at the 50th percentile ofthe market range. . Employees will be eligible for a 3.5% salary merit increase ("Executive" classified employees will receive 4.5%) on their anniversary date of employment if they receive satisfactory performance evaluations. - The proposed 2006 Compensation Plan is designed to mamtain competitive relationships with the market and provide an unbiased relationship in pay between positions and departments. You may find the complete Compensation Plan in the "Staffing" sectiOn of the Budget. The proposed 2006 Budget includes a proposed staffing level of 220.380 FTE's in all Funds, an increase of 6.0 FTE's compared to the 2005 Budget. Proposed staffing mcreases include the followmg: . 1 0 FTE Senior Planner (Community Development) . 1 0 FTE Maintenance Worker I (Parks and RecreatlOn) . 1.0 FTE Maintenance Worker II (Parks and RecreatlOn) . 1 0 FTE Human Resources Technician (Administrative Services) . 1 0 FTE Court Marshal (Mumcipal Court) - upgrade from two 0.4 FTE Court Marshals to two 0.5 FTE Court Marshals with benefits . 1 0 FTE (Police) - police department is proposing to trade 2.0 FTE Police Officer positions for 2.0 FTE Police Support Clerks and 1.0 FTE Police Sergeant for a net increase of 1 0 FTE BUDGET TRANSFERS The CIP Fund will receive $3,450,000 in revenue in the form of transfers from other funds to cover expenses incurred for special projects, reimbursements or operating costs. Listed below are the funds making the transfers, the amount of the transfer and a brief justification for the transfer: CIP Fund - transfers in. General Fund - $3,450,000 Annual transfer to cover capital expenses. The 2006 Proposed Budget is presented in greater detail in each department section and in the Line Item Accounts sectiOn of this document. Please refer to those pages for additional information. In June and agam in July, City Council held a public meeting to allow citizens to provide input on the budget. The proposed 2006 Budget was distributed to City Council and made available to the public on September 9th. On September 17th, staff presented the proposed 2006 Budget to City Council at a budget retreat. A public hearing was held at the September 26, 2005 City Council meeting and adoption of the 2006 Budget is scheduled for October 10,2005 Section 10 9 of the Wheat Ridge City Code states that if Council "fails to adopt the budget by this date [December 15, 2005], the amounts appropriated for the operation for the current fiscal year shall be deemed adopted for the next fiscal year on a month-to-month basis, with all items in it prorated accordingly, until such time as the Council adopts the budget for the next fiscal year AL TERN A TlVES CONSIDERED: City Council may adopt the proposed budget with amendments. - FINANCIAL IMP ACT: Total budget of $34,595,082, excluding transfers, to be appropriated to the vanous funds in the attached resolution. RECOMMENDED MOTION: "I move to approve Resolution No. 49-2005, A Resolution Repealing and Reenacting the City Budget and Appropriating Sums of Money to the Various Funds and Spending Agencies in the Amounts Specified for the City of Wheat Ridge, Colorado for the 2006 Budget Year" or, "I move to deny Resolution No 49-2005, A Resolution Repealing and Reenacting the City Budget and Appropriating Sums of Money to the Various Funds and Spendmg Agencies in the Amounts Specified for the City of Wheat Ridge, Colorado for the 2006 Budget Year for the following reason(s) " Report Prepared by: Patrick Goff, Deputy City Manager Reviewed by: Randy Young, City Manager Attachments: I Resolution No. 49-2005 RESOLUTION N0.49 Series of 2005 TITLE: A RESOLUTION REPEALING AND REENACTING THE CITY BUDGET AND APPROPRIATING SUMS OF MONEY TO THE VARIOUS FUNDS AND SPENDING AGENCIES IN THE AMOUNTS SPECIFIED BELOW FOR THE CITY OF WHEAT RIDGE, COLORADO, FOR THE 2006 BUDGET YEAR WHEREAS, the City of Wheat Ridge annual budget for the fiscal year 2006 has been established and public hearings and meetings have been held after duly published public notices, and WHEREAS, the budget provides for the combination of revenues and excess fund balance reserves equal to or greater than the total proposed expenditures as set forth in Said budget in the total amount of $34,595,082, excluding transfers, whiCh includes the following funds: 1 Fund 01 - General Fund $ 25,811,941 2. Fund 17 - Police Investigation Fund $ 8,795 - 3. Fund 30 - Capital Investment Fund $ 7,765,000 4 Fund 32 - Open Space Fund $ 1,148,115 5. Fund 33 - Mumcipal Court Fund $ 62,100 6. Fund 35 - Richards Hart Estate Fund $ 65,000 7. Fund 53 - Semor Fund $ 27,300 8. Fund 54 - ConservatiOn Trust Fund $ 465,000 9 Fund 63 - Hotel/Motel Fund $ 351,867 10 Fund 64 - RecreatlOn Center Operation Fund $ 2,339,964 Total $38,045,082 Less Transfers ($3,450,000) Total Expenditures $34,595,082 - ATTACHMENT 1 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Wheat Ridge, Colorado, that the City of Wheat Ridge Total Budget as stated in the Resolution be hereby approved, adopted, and appropriated for the entire fiscal period beginning January 1,2006 and ending December 31, 2006. day of ,2005 DONE AND RESOLVED THIS GRETCHEN CERVENY, MAYOR ATTEST. PAMELA ANDERSON - ITEM NO' 5, REQUEST FOR CITY COUNCIL ACTION COUNCIL MEETING DATE October 10, 2005 TITLE: APPROVAL OF THE CISCO NETWORK UPGRADE TO FORSYTHE, INC. IN THE TOTAL AMOUNT OF $46,032.85 D PUBLIC HEARING rgJ BIDS/MOTIONS D RESOLUTIONS D ORDINANCES FOR 1 ST READING (Date' _) D ORDINANCES FOR 2ND READING Quasi-Judicial. D Yes fJ~/ Deputy City Manager I [gJ No Cit~~~ - EXECUTIVE SUMMARY: The City currently has five remote computer network locations and each is connected to the City Hall Administration Building and Police Department. The remote sites include, the Recreation Center, Senior Community Center, Anderson Complex, Parks Shops, and Public Works Shops. These remote sites do not have the expanded capacity, reliability or starldard technologies employed through out the rest ofthe City of Wheat Ridge. This network upgrade is a budgeted, phased implementation that is required to provide network manageability and reliability. The remote networks connect to the City Hall network to gain access to services such as email, Internet, files, and enterprise wide applications. Several of the remote sites are running on 10 Megabit speeds when the rest of the City is running on 100 or 1,000 Megabit speeds. Most ofthe equipment at the remote sites are over five years old and have outlived their projected live span. Hence, these locations are more susceptible to connectivity failure due to the age of the equipment. This causes lost productiVity for the end users and increases Information Technology stafftime to fix old technologies that require replacement. In addition, these upgraded technologies will allow the IT staff to remotely momtor and configure network systems to optimize performance, which is a feature that is not currently available with thc legacy equipment. Quotes were obtained from Forsythe Inc. for equipment and services based on the State Price Agreement 20516YYY08P in the amount of$46,032.85. COMMISSION/BOARD RECOMMENDATION: None STATEMENT OF THE ISSUES: The scheduled and budgeted replacement of obsolete network equipment at the remote sites. AL TERNA TIVES CONSIDERED: No replacement at this time. FINANCIAL IMPACT: Staff recommends implementing the Cisco Network Upgrade with Forsythe in the amount of $46,032.85 This will improve the availability, speed, and reliability ofthe City's Network at all sites. This is part of the phased upgrade ofthe City's mature network. These funds are budgeted in the 2005 budget. RECOMMENDED MOTION: "I move to approve the purchase of equipment, installation and consulting services for the Cisco Network Upgrade to Forsythe, Inc. in the total amount of$46,032.85" or, "I move to deny authorization for the City of Wheat Ridge to implement the Cisco Network Upgrade with Forsythe for the following reason(s) " Report Prepared by: Reviewed by' Michael Steinke, IT Manager Linda Tnmble, Purchasing Agent Patnck Goff, Deputy City Manager Attachments: 1. Quote from Forsythe, Inc. 051010 eAF Cisco ~ FtRSVTHE DE" "ering the business value of IT" 0, 09130/05 COLORADO PURCHASING AGREEMENT #20516VYY08P Cu~r: CITY OF WHEAT RIDGE Project name: ACS VPN Project, COPUnk PIX 50GE, 4507R Redundant SUP IV, LAN Switch Upgrade Services Project Reference 10: 306401,306403,306083 Contact: Kent Kudebeh Phone: 303-235-2879 Emai!: kkudebeh@cl.wheatrldge.co.us Account Manager: Product Specialist: Forsythe Contact: Phone: Fax: Emai!: Diane Thilmany Ginger Montalbano Diane Thllmany 847-213-7835 847-213-8835 dthilmany@forsythe.com 306401 Network Re'Sp 5 Unit Net Ext. Net Lme Mfg Product Number Oescriptlon Qty Price Price 1 CISCO 2 CISCO 3 CISCO 4 CISCO 5 CISCO 6 CISCO 7 CISCO a CISCO 9 CISCO Total for 306401 Network Resp 5: WS-C3750-48TS.S CAB-STACK.SOCM CAB-AC CON-SNT -375048TS WS-C3750G-24T -S CAB-ST ACK-50CM CAB-AC CON-SNT-3750G24TS GLC-SX-MM= ACS VPN PROJECT CATALYST 37504810/100 + 4 SFP STANDARD MULTILAYER IMAGE STACKWISE50CMST ACKINGCABLE POWER CORD, 110V SMARTNET 8X5XNBD CAT 3750 48 SF? STDRD MULTILAYER IMAGE CATALYST 3750 24 10/100/1000T STANDARD MULTIlAYER IMAGE ST ACKWlSE50CMSTACKINGCABLE POWER CORD, 110V SMARTNET 8X5XNBD CAT 3750 24 S GE SFP LC CONNECTOR SX TRANSCEIVER 2 $4.406.85 $8,813.70 2 $0.00 $0.00 2 $0.00 $0.00 2 $422.40 $844.80 5 $3,776.85 $18.884.25 5 $0.00 $0.00 5 $0.00 $0.00 5 $281.60 $1,408.00 5 $315_00 $1,575.00 Subtotal: $31,525.75 Availability: Approximately 12 business days from receipt of order. 306403 Network Resp 5 Umt Net Ext. Net Line Mfg Product Number Description Qty Price Price 1 CISCO 2 CISCO 3 CISCO 4 CISCO 5 CISCO 6 CISCO Total for 306403 Network Resp 5: PIX~506E-BUN-K9 CAB-AC SF-PIX.506--6.3 PIX-VPN-CLNT-K9 PIX-506-5W-3DES CON-SNT -P1X506BN COPLlnk PIX 50GE PROJECT PIX 506E 3DES/AES BUNDLE (CHASSIS, SW, 2 FE PORTS. 3DES/AES) POWER CORD, 110V PIX V6.3 SOFTWARE FOR THE PIX 506E CHASSIS VPN CLIENT SOFTWARE (WINDOWS,lINUX,SOLARIS) PIX 506/506E 168-BIT 3DES VPN FEATURE LICENSE SMARTNET aX5XNBD PlX506E 3DES/AES BUN CHASS.SW,2FE,3DES $878.85 $878.85 $0.00 $0.00 $0.00 $0.00 $000 $0.00 $0.00 $0.00 $100.80 $100.80 Subtotal: $979.65 Availability: Approximately 10 business days from receipt of order. 306Q88 Network Resp 4 UOIt Net Ext. Net me Mfg Product Number Description Qty Price Price 306401 Service Resp 3 Umt Net Ext. Net Lme Mfg Product Number DescriptIon Oty Price Price - 1 CISCO Total for 306088 Network Resp 4: Total for 30&401 Service Resp 3 Terms and Conditions: WS~X4515= 4507R REOUNDANT SUP IV PROJECT CATALYST 4507R REDUNDANT SUPERVISOR 1V,(2 GE),CONSOLE(RJ-45) $7,796.75 $7.796.75 Availability: Approximately 15 business days from receipt of order. Subtotal: $7,796.75 LAN SWrrCH UPGRADE as detailed In SOW dated 8/23/05 VersIon 1e $5,250.00 $5,250.00 NOTE: Statement of Work (SOW) dated 8/23105 for the above referenced services must be signed and returned to Forsythe. Subtotal: $5,250.00 Total: Shipping Charge: Grand T olal: $45,552.15 $480.70 $46,032.85 1. This quote is valid for 14 days. 2. Product pricing and availability are subject to manufacturer's change without notice. 3. Returned product Is subject to a restocking fee based on the circumstances under which it Is being returned and the condition or product 4. Some products may not be returnable based upon manufacturers and/or disbibutors return policies. 5. Software which has been opened is non-returnable. 6. Pricing does not Include installation, configuration, or shipping unless otherwise stated. 7 This offer is subject to the teons and conditions of Forsythe's Standard Form SOlie Agreement 8. This offer is subject to Forsythe's finance and credit approval. FORSYTHE Please review this prop~sal and upo~ your signature in the space set forth below, this proposal shall become a legally binding agreement on the terms and conditions set forth herein. The undersigned represents that he/she IS duly authonzed 10 execute this agreement on behalf of the company Bv: 'iame: rWe: Jate: [his document and any files, attachments, or exhibits, is intended only for Ihe use of Forsythe Solutions Group, Inc. and contains legally privileged and confidential information The dissemination, distribution lr copying of any information contained in or attached to this document is strictly prohibited. ;;Copyright 2003 Forsythe Solutions Group Inc. All rights reserved City of Wheat Ridge Cisco Projects v1 a 9 30 OS.xls ATTACHMENT 1 "'.RSVTHE - Oeliverlng tho business v.alue of IT,'" LAN Switch Upgrade .B. Description of Services . Remote LAN Switch Upgrade Forsythe Solutions Group will provide the implementation services for the following items: . Installation of 7 remote LAN switches into the City of Wheat Ridge's current remote LAN switch architecture. . Additional VLAN creation to handle public DSL access including knowledge transfer to support staff to dynamically allocate switch ports to appropriate VLAN to accommodate internal and external meetings. . Knowledge transfer to support staff on maintaining new switches. . Update of all As-Built customer documentation for City of Wheat Ridge support staff to reflect any and all network modifications performed by this Statement of Work. Professional Service Fees Labor The price for Forsythe to implement this Fixed Price Project is as follows: - Professional Services Implementation Fees (State Contract #20516YYY08P) Expenses Client will not be invoiced for expenses incurred on this project. Price 0/- /)7- 7()(} -7S< $ 5,250 Invoicing Schedule Labor Client agrees to pay Forsythe according to the following invoicing schedule: [$5,250] at project close. Invoicing Format Labor labor is invoiced in summarized format (I.e. descriptive milestone amounts listed above). Expenses All travel and expenses will be billed at actual. Forsythe Proprietary and Confidential ID'306401 Page 2 of 4 August23,2005 Version: 1e