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HomeMy WebLinkAbout01/08/2007 6:30 p.m. Pre-Meeting ~~!11~~ CITY COUNCIL MEETING CITY OF WHEAT RIDGE, COLORADO 7500 WEST 29TH AVENUE, MUNICIPAL BUILDING Januarv 8. 2007 7:00 p.m. CALL TO ORDER PLEDGE OF ALLEGIANCE ROLL CALL OF MEMBERS APPROVAL OF MINUTES OF December 11. 2006 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 Executive Session with the City Attorney and appropriate staff under Charter Section' 5. 7(b)( 1 ) for the purpose of receiving legal advice on threatened litigation by Applewood Baptist Church under land use case SUP-06-04, and specific legal questions related thereto. Executive Session Resume Regular Meeting. ORDINANCES ON FIRST READING Item 1. COUNCIL BILL 01-2007 - AMENDING CHAPTER 4 OF THE WHEAT RIDGE CODE OF LAWS CONCERNING THE REGULATION OF ANIMALS. CITY COUNCIL AGENDA: January 8. 2007 Page -2- DECISIONS. RESOLUTIONS. AND MOTIONS Itern 3. RESOLUTION-01-2007 - APPROVING THE ADOPTION OF THE AMENDED AND RESTATED CITY OF WHEAT RIDGE MONEY PURCHASE PENSION PLAN FOR DESIGNATED POLICE DEPARTMENT EMPLOYEES FOR THE PURPOSE OF STREAMLINING THE PLAN DOCUMENT. REMOVING INCONSISTENCIES AND PLAN PROVISIONS NOT APPLICABLE TO GOVERNMENTAL PENSION PLANS. PERMITTING ADDITIONAL FLEXIBILITY IN PLAN OPERATION AND REDUCING FUTURE COSTS TO MAINTAIN THE PLAN'S TAX- QUALIFIED STATUS. RESOLUTION 02-2007 - APPROVING AN INTERGOVERNMENTAL AGREEMENT (IGA) BETWEEN THE CITY OF WHEAT RIDGE AND THE JEFFERSON COUNTY EMERGENCY TELEPHONE SERVICE AUTHORITY (JCETSA) FOR THE IMPLEMENTATION AND MAINTENANCE OF A GEOGRAPHIC INFORMATION SYSTEM (GIS) REGIONAL MAPPING PROJECT. Item 2. Itern4. RESOLUTION 03-2007 - APPROVING A FREQUENCY RECONFIGURA TION AGREEMENT BETWEEN THE CITY OF WHEAT RIDGE, THE CITY OF LAKEWOOD AND NExrEL WEST CORPORATION TO RECONFIGURE THE 800 MHZ BAND TO MINIMIZE HARMFUL INTERFERENCE TO PUBLIC SAFETY RADIO COMMUNICATIONS SYSTEMS IN THE BAND ("RECONFIGURATION"). Itern S. Motion to accept the Findings of Fact for Applewood Baptist Church. CITY MANAGER'S MATTERS CITY ATTORNEY'S MATTERS ELECTED OFFICIALS' MATTERS ADJOURNMENT CItIt '. CITY OF WHEAT RIDGE, COLORADO December 11. 2006 Mayor DiTullio called the Regular City Council Meeting to order at 7:00 p.m. Councilmembers present: Karen Adams, Karen Berry, Dean Gokey, Lena Rotola, Wanda Sang, Larry Schulz and Mike Stites. Councilmember Terry Womble was absent. Also present: Deputy City Clerk, Christa Jones; Deputy City Manager, Patrick Goff; City Attorney, Gerald Dahl; Director of Community Development, Alan White; Director of Public Works, Tim Paranto; Director of Parks and Recreation, Joyce Manwaring; staff; and interested citizens. APPROVAL OF MINUTES OF November 27.2006 Motion by Mrs. Sang for approval of the Minutes of Novernber 27, 2006; seconded by Mr. Schulz; carried 7-0. Mayor DiTullio asked for Mornent of Silence for slain Officer Ken Jordan from the Colorado Springs Police Department. CITIZENS' RIGHT TO SPEAK There was no one present to speak. Item 1. CONSENT AGENDA: A. Right of Way Dedication for Carr Street. B. Approve Award of the Phase III (E-Citation) implementation of Logisys Field Reporting (LFR) to Logistic Systerns Inc., for the not to exceed amount of $43,680.00. C. RESOLUTION 56-2006 - AUTHORIZING SUBMITTAL OF THE APPLICATION FOR A 2007 JOINT VENTURE GRANT PROJECT TO JEFFERSON COUNTY OPEN SPACE FOR THE CONSTRUCTION OF A RESTROOM BUILDING AT CREEKSIDE PARK. D. RESOLUTION 57-2006 - AUTHORIZING JEFFERSON COUNTY OPEN SPACE TO CONTINUE GOOD FAITH NEGOTIATIONS AND TO ACQUIRE THE 1.25 ACRES OF LAND, MORE OR LESS, LOCATED AT 4315 VAN GORDON STREET (WILSON PROPERTY) AT THE NEGOTIATED PRICE FOR PARKS AND RECREATION PURPOSES. CITY COUNCIL MINUTES: December 11, 2006 Page -2- E. RESOLUTION 58-2006 - ADOPTING BY REFERENCE C.R.S. ~ 24-18-104, AS APPLICABLE TO PUBLIC OFFICERS AND EMPLOYEES, INCLUDING INDEPENDENT CONTRACTORS WITHIN THE CITY. F. RESOLUTION 59-2006 - AMENDING THE 2006 FISCAL YEAR GENERAL FUND BUDGET TO REFLECT THE APPROVAL OF A SUPPLEMENTAL BUDGET APPROPRIATION IN THE AMOUNT OF $5,500 FOR MONTHLY FEE EXPENDITURES ASSOCIATED WITH IMPLEMENTATION OF A SWEEP ACCOUNT. G. Motion to appoint Deputy City Clerk Christa Jones Acting City Clerk, effective January 1 , 2007 until a permanent appointment can be made. Consent Agenda was introduced and read by Mr. Stites. Motion by Mr. Stites for approval of the Consent Agenda; seconded by Mrs. Sang. Mr. Gokey asked to pull Item D. Ms. Berry asked to pull Item E. Motion on all other items carried 7-0. D. Motion by Mr. Gokey to approve Resolution 57-2006; seconded by Mr. Stites. Mr. Gokey asked that Parks Director Joyce Manwaring give background on this property. Joyce Manwaring stated that the purpose for this purchase was to give pedestrian access to the Greenbelt from that location and a small parking area. It has historically been used as a greenhouse site and there is still a greenhouse located on it. There are some pesticides still present in the soil, but they are negligible to human health. To mitigate this, they are proposing to re-vegetate the area and put in either a gravel or asphalt parking lot. Motion carried 6-1 with Mrs. Sang voting no. E. Resolution 58-2006 was introduced by Ms. Berry, who also read the executive summary. Motion by Ms. Berry to,deny Resolution 58-2006 for the following reasons: She believes that the Resolution as proposed does not fully meet the intent of Arnendment 41 because it does not have an independent Ethics Commission; seconded by Mrs. Adams. CITY COUNCIL MINUTES: December 11, 2006 Page -3- Mr. Gokey asked City Attorney Dahl to go over the significant differences between State Law and this Resolution. Mr. Dahl stated that Amendment 41 is pretty expansive. The State Statute on gifts and gratuities, etc. links the gift with an attempt to influence the public official. Amendment 41 's approach to that subject is if you are a public official you may not accept gifts. It makes your status as a public official the reason the gift is illegal. The definition of what is a gift or gratuity under the amendment is considerably broader than Statute. Under the Amendment it's "gifts, gratuities and things of value" and those also go to your dependents and your spouse. He cited as an example a scholarship to a Councilmember's son, that is a gift of value received by a dependent of a public official and is not permitted unless the public official gives equal value back. Motion by Mr. Stites to make a substitute motion to approve Resolution 58-2006; seconded by Mrs. Sang; failed 4-2 with Councilmembers Schulz, Berry, Adams and Rotola voting no. Motion to deny carried 5-2 with Councilmembers Stites and Sang voting no. PUBLIC HEARINGS AND ORDINANCES ON SECOND READING Item 2. COUNCIL BILL 30-2006 - AN ORDINANCE AMENDING SECTION 5-84 OF THE WHEAT RIDGE CODE OF LAWS PERTAINING TO THE PRESCRIPTIVE ENERGY CODE. (Case No. WCA-06-0S) Mayor DiTullio opened the public hearing. Council Bill 30-2006 was introduced on second reading by Mr. Gokey. Clerk read the executive summary and assigned Ordinance No. 1380. Alan White presented the staff report. Sandra Collins spoke in support of the Council Bill and asked that it be approved. Mayor DiTullio closed the public hearing. Motion by Mr. Gokey to adopt Council Bill 30-2006 (Ordinance No. 1380) on second reading, and that it take effect 15 days after final publication; seconded by Mrs. Sang; carried 6-1 with Mr. Schulz voting no. CITY COUNCIL MINUTES: December 11, 2006 Page -4- Item 3. COUNCIL BILL 31-2006 - AMENDING SECTION 5-85 OF THE WHEAT RIDGE CODE OF LAWS PERTAINING TO THE INTERNATIONAL RESIDENTIAL CODE. (Case No. WCA-06-06) Mayor DiTullio opened the public hearing. Council Bill 31-2006 was introduced on second reading by Ms. Berry. Ms. Berry read the executive summary. Clerk assigned Ordinance No. 1381. Alan White presented the staff report. Chad Root, Chief Building Inspector, answered Councils' questions. Mayor DiTullio closed the public hearing. Motion by Ms. Berry to approve Council Bill 31-2006 (Ordinance 1381) on second reading and that it take effect 15 days after final publication; seconded by Mrs. Sang; carried 7-0. Item 4. A Request for a Special Use Permit to allow expansion of an education bUildin~ as ancillary to a church in an R-1 Zone District located at 11225 W. 32n Avenue, Wheat Ridge. (Case No. SUP-06-04) (Applewood Baptist Church) Mayor DiTullio opened the public hearing. Item 4 was introduced by Mr. Stites. Mr. Stites read the executive summary. Mayor DiTullio administered Oath to all people intending to speak. Meredith Reckert, Wheat Ridge Community Development Department, presented the staff report and gave power pOint presentation. She entered a group of 8 letters into the record, which were submitted to City staff today. They were letters of objection from people who lived in Wheat Ridge and Lakewood. She also entered into the record the Zoning Ordinance, the Case File, and contents of this digital presentation. All proper notification and posting requirements have been met, therefore Council has jurisdiction to hear this case. CITY COUNCIL MINUTES: December 11, 2006 Page -5- Architect Stanley Pouw, 14060 Elderberry Road, Golden, representing the applicant, explained the scheme for the new building and its proposed uses as well as the parking and landscaping. Traffic issues are a concern, but the applicant has agreed to put in a traffic light and will pay for that. The following citizens spoke against the Special Use Permit and urged Council to deny it: Mike Larkin, Lakewood, Tiffany Barnhart, Dan Barnhart, Pete Klammer, Tom Radigan Sheila Bardwell Ralph and Debbie Perri, Lakewood, Christine Tomavich, Lakewood, Holly Heaton Arthur Gibbard Julia Parisian Their reasons for opposition included, but were not limited to, parking in neighborhood streets instead of Church parking lot; church does not shovel their sidewalks; increased traffic, noise, air and light pollution; destroying the quality of life for people in Applewood; this does not belong in a residential neighborhood; will hurt property values; church does not pay taxes, residents do; unanswered questions about the proposed use of the building; church is growing into a mega church and needs to be in a commercial area. Mayor DiTullio called for a 10-15 Minute break at 8:44 p.m. Meeting reconvened at 8:58 p.m. Council questions and discussion followed. Fred Lantz did traffic study on the project and explained the methodology he used. Tim Paranto stated that City staff reviewed the traffic study. Motion by Mr. Stites to deny Case No. SUP-06-04 for the following reasons: 1. There have been objections filed regarding the application. 2. There will be visual impacts on the neighborhood, as well as an increase in traffic on West 32nd Avenue. 3. There will be a negative impact on the light and air to adjacent properties. 4. There will be air and noise pollution generated by vehicles entering and exiting the expanded parking area. S. There will be unacceptable safety hazards to pedestrians and vehicles. CITY COUNCIL MINUTES: December 11, 2006 Page -6- Councilmember Stites further moved to direct the City Attorney to prepare findings for this Item and bring them back to the next Council Meeting for approval; seconded by Mr. Schulz; carried 7-0. DECISIONS. RESOLUTIONS. AND MOTIONS Item S. RESOLUTION 62-2006 - LEVYING GENERAL PROPERTY TAXES FOR THE YEAR OF 2006, TO HELP DEFRAY THE COSTS OF GOVERNMENT FOR THE CITY OF WHEAT RIDGE, COLORADO, FOR THE 2007 BUDGET YEAR. Resolution 62-2006 was introduced by Mrs. Sang. Motion by Mrs. Sang to adopt Resolution 62-2006 levying a mill levy of 1.830 on general property taxes for the Year of 2006, to help defray the costs of government for the City of Wheat Ridge, Colorado for the 2007 budget year; seconded by Mrs. Adams; carried 7-0. Item 6. RESOLUTION 55-2006 - ADOPTING THE SECOND MODIFICATION TO THE 38TH AVENUE CORRIDOR REDEVELOPMENT PLAN. Resolution 55-2006 was introduced by Mr. Schulz, who also read the executive summary. Motion by Mr. Schulz to adopt Resolution 55-2006; seconded by Mrs. Rotola. Charles Durbin spoke against this Resolution. He is concerned about taking tax money away from the City, the schools, and various districts. He thought Wheat Ridge was trying to improve their tax base. Urban Renewal has $800,000 of promised TIF money tied up in litigation. This Resolution needs closer examination. Alan White presented the staff report and entered Urban Renewal Resolution 05-2006 into the record, which recommends forwarding this item to City Council. He clarified some of the comments Mr. Durbin made. Mayor DiTullio called for a 5 Minute break at 9:50 because of background noise. Meeting resumed at 9:55 p.m. Motion carried 7-0. CITY COUNCIL MINUTES: December 11, 2006 Page -7- Item 7. RESOLUTION 61-2006 - APPROVING AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY OF WHEAT RIDGE AND THE LONGS PEAK METROPOLITAN DISTRICT. Resolution 61-2006 was introduced by Mr. Stites, who also read the executive summary. Motion by Mr. Stites to approve Resolution 61-2006 with the amendment that technical corrections and modifications for internal consistency as are approved by the City Attorney be authorized; seconded by Mrs. Sang and Mr. Gokey; carried 7-0. Item 8. RESOLUTION 60-2006 - APPROVING AN AMENDED AND RESTATED ANNEXATION AND DEVELOPMENT AGREEMENT AMONG THE CITY OF WHEAT RIDGE, CABELA'S RETAIL INC., MICHAEL ALLARD, CHARLES BERA, ANN MARIE COURCHENE, NEIL G. JAQUET, DONALD W. MACDONALD AND COORS BREWING COMPANY. Resolution 60-2006 was introduced by Mr. Schulz, who also read the executive summary. Motion by Mr. Schulz to approve Resolution 60-2006 with the following amendments: 1. Amend Section 5 (b) to add: Additionally, said opening date is subject to completion of certain roads by the City, the District, and the Colorado Department of Transportation, which are currently contemplated by the parties and necessary to provide adequate access to the Cabelas Project. 2. Such technical corrections and modifications for internal consistency as are approved by the City Attorney be authorized; seconded by Mrs. Rotola; carried 7-0. Item 9. Parks and Recreation Commission Appointment. Motion by Mrs. Rotola to appoint Liz George to the District IV vacancy on the Parks and Recreation Commission; term to expire March 2, 2008; seconded by Mr. Schulz; carried 7-0. CITY COUNCIL MINUTES: December 11, 2006 Page -8- ELECTED OFFICIALS' MA TIERS Mayor DiTullio and Council members congratulated Wheat Ridge High School football team on winning the State Championship. Meeting adjourned at 10:22 p.m. ,~ \\ ''':>~ \~~ Christa Jones, DeputY~ity Clerk APPROVED BY CITY COUNCIL ON JANUARY 8, 2007 BY A VOTE OF to - Mike Stites, Mayor pro tem 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. Recordings and DVD's 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 COUNCIL MEETING DATE: January 8, 2007 TITLE: COUNCIL BILL 01-2007 - AN ORDINANCE AMENDING CHAPTER 4 OF THE WHEAT RIDGE CODE OF LAWS CONCERNING THE REGULATION OF ANIMALS o PUBLIC HEARING o BIDS/MOTIONS o RESOLUTIONS [8J ORDINANCES FOR 1ST READING (Date: January 8, 2007) D ORDINANCES FOR 2ND READING Quasi-Judicial: D Yes [8J No lleJ p ~ i>anie1 B{emfan, Chief of Police Rand~~ager EXECUTIVE SUMMARY: In 2006, several jurisdictions in the Denver metro area passed laws that made the ownership of certain breeds of dogs unlawful and required licensing of these breeds of dogs for citizens who possessed them prior to the adoption of these new laws. In response to community concerns the local and county government officials in Jefferson County began meeting to develop an ordinance to regulate and track dangerous animals within and across Jefferson County. All of the jurisdictions in Jefferson County agreed that ordinance requiring the licensing of certain breeds of dogs did not address the issue of dangerous or vicious animals. A model countywide dangerous animal ordinance was created and adopted by Jefferson County, Lakewood, Westminster and Arvada. The City of Golden is currently working on modifications to their municipal code to bring it into compliance. The second part of this process was the development of a county-wide licensing program for dogs to address the problem of dog owners moving from one jurisdiction to another to avoid prosecution, and to assist in identifying and reuniting dog owners and their dogs. Jefferson County has required a licensing of dogs in unincorporated Jefferson County since 1994 and has found the licensing programming to be of great assistance to their animal control function. Jefferson County has offered to maintain and administer the licensing program and database for all jurisdictions within the county. At City Council's direction, a provision has been added to the ordinance that allows for a waiver process for vaccination of a dog for medical reasons. One of the major goals of a countywide licensing program is to provide an additional revenue source to assist in providing operations and future capital improvements to the Table Mountain Animal Center (TMAC) as it works to meet the growing animal control needs of the shelter. The benefit for cities participating in licensing is to keep future assessments paid to the animal center consistent with future population and growth rates within each city and the county. TMAC is the second largest animal shelter in the State of Colorado and provides care to over 10,000 animals annually. The center is currently one of the lowest staffed and budgeted animal shelters in the state. An intergovernmental agreement will need to be completed to become a part of the Jefferson County Animal Control Licensing Program once each City has formally adopted the licensing program. COMMISSION/BOARD RECOMMENDATION: The ordinance changes and licensing proposal have been discussed in great detail between county and municipal staff as well as the Wheat Ridge Animal Welfare and Control Commission (A WCC). Members from the police department and TMAC have met with members ofthe A WCC to discuss the ordinance revisions and licensing proposal. The recommendation of the A wec is as follows: Some members of the commission do not see the need for a new ordinance (very lengthy), however, due to the desire for consistency between the cities and county, they have agreed this is the direction the city needs to pursue. The majority of members were in agreement that the City should adopt the licensing program. STATEMENT OF THE ISSUES: The County Commissioners, City Managers and Animal Control officials in Jefferson County recognized that action was necessary to address citizen concerns on the establishment of a breed specific ban on pit bulls. Everyone recognized the issue of vicious and dangerous dogs applied to all breeds of dogs and that an ordinance banning specific breeds was not as effective. A review of each jurisdiction's current codes defining aggressive/dangerous animals revealed that each entity had a different definition. The City Attorneys and animal control officials from each entity worked together to develop a consistent definition for aggressive and dangerous animals countywide that have been applied to our Code of Laws. A countywide licensing component is also proposed to address the following concerns: ~ Address the problem of dog owners moving from one jurisdiction to another to avoid prosecution due to differences in animal control ordinances pertaining to aggressive and dangerous animals. ~ Assist in the creation of a database that is available at all times to animal control officers throughout the county. ~ Assist Community Services Officers in identifying and reuniting dog owners and their dogs. Jefferson County requires a licensing of dogs in unincorporated Jefferson County and has found the licensing programming to be of great assistance to their Animal Control function. ~ Assist in providing operations and future capital improvement to the Table Mountain Animal Center (TMAC) to meet the growing animal control needs of the shelter. ALTERNATIVES CONSIDERED: 1. Do not approve revised code changes and/or the dog licensing component and continue to operate under the current ordinance. This alternative is not recommended for reasons outlined in the statement of issues. 2. Approve the revised code changes and dog licensing ordinance. City staff recommends this alternative as the preferred alternative. The revised animal control changes will allow the City of Wheat Ridge to have ordinances that mirror those of other communities in Jefferson County pertaining to dangerous and vicious dogs. Approval ofthe dog licensing ordinance will allow the Community Services Unit to be more efficient in locating the owners of dogs and provide a partial funding source for the Table Mountain Animal Center. FINANCIAL IMPACT: The changes contained in the proposed ordinance reflect no additional costs to the City of Wheat Ridge. The licensing program will be administered through Jefferson County and after administrative fees are recovered, excess revenue will be forwarded to TMAC to be used for operations and capital improvements. However, the possibility does exist that should the City not enter into the IGA for county-wide licensing the City's assessment to the animal center may increase at a higher percentage than the cities who participate in licensing. RECOMMENDED MOTION: "1 move to approve Council Bill 01-2007 - An Ordinance Amending Chapter 4 ofthe Wheat Ridge Code of Laws Concerning the Regulation of Animals on first reading, order it published, public hearing set for Monday, January 22,2007 at 7:00 p.m. in City Council Chambers, that Section 9 of the Ordinance shall not take effect until Jefferson County implements a countywide licensing system for dogs and the intergovernmental agreement concerning the use of the licensing program's licensing fees has been executed by all parties to that agreement, and that the remainder ofthe Ordinance take effect 15 days after final publication." or, "1 move to table indefinitely Council Bill 01-2007 - An Ordinance Amending Chapter 4 ofthe Wheat Ridge Code of Laws Concerning the Regulation of Animals for the following reason( s) " Report Prepared by: Reviewed by: Rollie Inskeep, Community Services Unit Supervisor Daniel Brennan, Chief of Police Attachments: 1. Memorandum from Gerald E. Dahl and Debra S. Kalish reference the Model County Wide Dangerous Animal Ordinance for Jefferson County 2. Council Bill 01-2007 MURRAY DAJ....IL KUE:OJ....lE:NME:ISTE:R > RE;:NAUO LLP ~ 2401 15th StTEet SuitE 200 Denver, Colon"io 80202 PhonE 30349;3.6670 Fax 303477.0965 MEMORANDUM TO: Chief Daniel Brennan FROM: Gerald E. Dahl, Debra S. Kalish, City Attorney's Office DATE: April 1 0, 2006 RE: Model County Wide Dangerous Animal Ordinance for Jefferson County The animal care and control agencies in Jefferson County have proposed a model county-wide dangerous animal ordinance. You asked that we review the model ordinance and compare it with Wheat Ridge's current animal control code, found at Section 4-1 et seq. of the Code of Laws ("Code") for the City of Wheat Ridge ("City"), and identify any areas of conflict or concern. We have reviewed the proposed model ordinance ("Model Ordinance"), the City's current animal control code, the comments of CSO Supervisor, Rollie Inskeep, and the state statute regarding civil actions against dog owners, and have the following comments. Executive Summarv:. Much of the Model Ordinance is similar to the City's provIsIons regarding vicious animals. The primary difference is in the modification of definitions, the licensing of certain animals specifically as Dangerous or Aggressive Animals and their owners as Habitual Offenders. A county-wide tracking system may avoid issues that cities such as Denver and Aurora have encountered as animal owners move to avoid the licensing provisions adopted in those cities. Our review points out differences and similarities between the City's current animal control code and the provisions of the Model Ordinance. Our major criticism of the Model Ordinance that we reviewed is its failure to make anything unlawful, making the definitions distinctions without a difference. A section is needed explicitly stating that the following are declared unlawful, then list, for example, "harboring an Aggressive Animal, etc." Certainly, that should be the major focus of future revisions. Definitions. The first section of the Model Ordinance defines six terms: Bodily Injury, Serious Bodily Injury, Aggressive Animal, Dangerous Animal, Habitual Offender, and Strict Liability. Memo: Model County Wide Dangerous Animal Ordinance for Jefferson County April 10, 2006 Page 1 of 7 ATTACHMENT 1 Neither bodily injury nor serious bodily injury are defined in the City Code. According to the Model Ordinance, Bodily Injury means an injury to a person caused by an animal whereby, at a minimum, the skin is broken, exterior bleeding occurs, or medical treatment by a licensed physician is reasonably necessary . Bodily injury is defined in the Colorado Revised Statutes, however, in two sections that are relevant for our examination in this context - at C. R.S. S 13-21-124, Civil actions against dog owners, the statute that allows people to sue for damages resulting from attacks by dogs (attached for your convenience at the end of this memorandum) 1, and at S 18-1-901, definitions used throughout the Criminal Code. In the civil action context, "bodily injury" is defined as meaning: any physical injury that results in severe bruising, muscle tears, or skin lacerations requiring professional medical treatment or any physical injury that requires corrective or cosmetic surgery. In the Criminal Code, bodily injury is defined to mean: physical pain, illness, or any impairment of physical or mental condition. The Criminal Code definition is far more general and represents a lower threshold than either the civil action statute or the Model Ordinance. The civil action statute seems to represent a higher threshold of injury before suit can be brought than the definition in the Model Ordinance. Any of these definitions is acceptable. We thought you should be aware of the differences between them. The effect of using the Model Ordinance definition is to compromise between the civil and criminal standards. "Serious bodily injury" is defined in the Model Ordinance as: An injury to a person caused by an animal which, either at the time of the actual injury or at a later time, involves a substantial risk of death, a substantial risk of serious permanent disfigurement, a substantial risk of protracted loss or impairment of the function of any part or organ of the body, or breaks, fractures, or injuries that require corrective cosmetic surgery. Both the civil action against dog owners statute and the state Criminal Code define serious bodily injury in the same way (deleting references to burns, which would not be applicable for this purpose). Memo: Model County Wide Dangerous Animal Ordinance for Jefferson County April 1 0, 2006 Page 2 of 7 The City Code does not define dangerous or aggressive animals, but instead defines "vicious animals" as An animal that unprovokedly bites or attacks humans or other animals, or an animal which is not adequately restrained in an enclosed area that approaches any person in an apparent attitude of attack or in a terrorizing or menacIng manner. The Model Ordinance, on the other hand, does not define "vicious animal," but rather provides definitions for "aggressive animal" and "dangerous animal," which, it is presumed, would replace the City Code "vicious animal" definition Both definitions present problems. Under the Model Ordinance, Aggressive Animals are animals that engage in any of the listed behaviors "without intentional provocation." While the City's current definition of viciousness distinguishes between actions taken with or without provocation, this definition distinguishes between actions with or without intentional provocation. Thus, an animal that responds to unintentional provocation is treated no differently from one which is not provoked. The Dangerous Animal definition is missing the first part of the definition found in the Aggressive Animal definition and simply begins by listing behaviors. Without the introductory language, both animals that have not been provoked or animals that have been intentionally provoked could fall into this category. Many of the elements of Aggressive Animal are identical to the elements of Dangerous Animal. Frankly, as a result, it is somewhat difficult to tell which type of animal is considered more dangerous. These definitions will be important for understanding which prohibitions or requirements apply to each type of animal. This is probably a good place to mention that there is no provision in the model language provided that explains what is prohibited by this ordinance. The City Code, for example, makes it unlawful for an animal owner to allow any animal to create a nuisance. This Model Ordinance defines animals and explains penalties, but never says what's unlawful to do. This will be discussed in greater detail later in this memorandum. The Habitual Offender refers to conviction or guilty plea to anv animal ordinance three or more times within any 12-month period. Because it does not limit the definition to this particular ordinance, all other animal ordinances in Chapter 4 of the Code, including running at large, creating a nuisance or removal of dog feces. The City may want to tailor this provision accordingly. The Strict Liability definition tracks the state civil action statute in that no proof of the owner's prior or current knowledge is required to find liability for the animal's actions. Memo: Model County Wide Dangerous Animal Ordinance for Jefferson County April 1 0,2006 Page 3 of 7 Violations and Penalties. The second section of the Model Ordinance addresses Violations and Penalties. The General Penalty provision of this Section tracks City Code ~ 4-3(a), but should either be modified to read "this Chapter" or "this Article," depending upon how the Model Ordinance might ultimately be included in the City Code or it should be eliminated altogether since it duplicates Section 4-3. In subsection (b) of Violations and Penalties, "responsible party" is not a defined term. The City should consider making it so. There is guidance for such a definition in the general nuisance provisions of the Code at S 15-4, Definitions. Again, this subsection discusses penalties for violations of this article I but the article never describes how one violates the article. Subsection (c) regarding restitution in addition to fines and imprisonment is similar to the City's current Code section 4-3(b), making it unnecessary to add if the City decides to adopt the Model Ordinance. Sanctions upon Conviction of AQQressive Animal. DanQerous DOQ, and Habitual Offender Violations. This section of the Model Ordinance is somewhat confusing because it references "conviction of one or more of the above enumerated offenses." As discussed briefly above, all the Model Ordinance has done at this point is to define animals and discuss penalties. Nothing has yet been made unlawful. Unfortunately, the Model Ordinance never does explain what is unlawful. This is our major criticism of the proposed Model Ordinance. Having said that, however, the mandatory sanctions to be imposed for a violation of the specific provisions of the Model Ordinance look reasonable and, with additional guidance from the court, specific enough to be enforced. Discretionary Sanctions and Limitations, with the exception of euthanasia of the dog, likewise appear to be reasonable and specific. Dangerous and Aggressive Animals are not limited by definition to dogs, so it is unclear why this sanction is limited to dogs. Destruction of vicious animals is already addressed in the City Code at section 4-5. That section allows a municipal judge, upon making a finding that such animal is vicious or that it represents a clear and present danger to the citizens or to other animals in the community, to order that the animal be destroyed humanely. If the City decides it wishes to adopt the Model Ordinance, it may be best to modify the current section 4-5 to permit destruction of animals. (It will be easier to modify the section when we know what is unlawful under this Model Ordinance.) Animal LicensinQ Memo: Model County Wide Dangerous Animal Ordinance for Jefferson County April 1 0, 2006 Page 4 of 7 The introduction to this section describes the benefit of a county-wide licensing program and looks like language to include in the WHEREAS clauses. It is unclear whether the Model Ordinance proponents mean for ALL. animal licenses to go through the county system or whether only Dangerous and Aggressive Animals would be licensed through this system. Certainly, a county-wide tracking system for dangerous or aggressive animals or for their habitual offender owners would help Jefferson County avoid the problems that cities like Denver and Aurora have faced as owners move from jurisdiction to jurisdiction to avoid the dangerous animal provisions enacted by those cities. The Administration section proposes that all animal licensing revenue would go to Table Mountain Animal Center as a permanent funding source for monitoring and tracking aggressive and dangerous animals and habitual animal ordinance offenders. Again, it is unclear whether it is being suggested that the funds from licensing all animals or only those found to be in violation of the Model Ordinance provisions is intended here. Sending all the City's funds from licensing might seriously impinge upon the City's resources for dealing with all other animal enforcement issues. The subsections on animal licensing and license requirements are probably not needed since the City Code already requires dogs and cats to be licensed and explains what is required to obtain a license. The Model Ordinance requirements are similar to those already in place in the City. This appears to be important only for jurisdictions that do not already license their animals. The Model Ordinance provides for a reduced licensing fee for animals that are spayed or neutered. The City Code does not make such a distinction - at least not in Section 4-31, Dog and cat licenses. The City may want to enact the Model Ordinance's differentiated license fee structure for Habitual Offenders/Aggressive/Dangerous Animal licenses. There is currently no such differentiated fee structure in the Code. Summarv Much of the Model Ordinance is similar to the City Code's current animal control chapter provisions regarding vicious animals. The primary difference is in the modification of definitions, the licensing of certain animals specifically as Dangerous or Aggressive Animals and their owners as Habitual Offenders. A county-wide tracking system may avoid issues that cities such as Denver and Aurora have encountered as animal owners move to avoid the licensing provisions adopted in those cities. Our review points out differences and similarities between the City's current animal control code and the provisions of the Model Ordinance. Our major criticism of the Model Ordinance that we reviewed is its failure to make anything unlawful, making the definitions distinctions without a difference. Certainly, that should be the major focus of future revisions. Memo: Model County Wide Dangerous Animal Ordinance for Jefferson County April 10. 2006 Page 5 of 7 1 13-21-124. Civil actions aoainst doo owners. (1) As used in this section, unless the context otherwise requires: (a) "Bodily injury" means any physical injury that results in severe bruising, muscle tears, or skin lacerations requiring professional medical treatment or any physical injury that requires correcti ve or cosmetic surgery. (b) "Dog" means any domesticated animal related to the fox, wolf, coyote, or jackal. (c) "Dog owner" means a person, firm, corporation, or organization owning, possessing, harboring, keeping, having financial or property interest in, or having control or custody of, a dog. (d) "Serious bodily injury" has the same meaning as set forth in section 18-1-901 (3) (p), C.R.S. (2) A person or a personal representative of a person who suffers serious bodily injury or death from being bitten by a dog while lawfully on public or private property shall be entitled to bring a civil action to recover economic damages against the dog owner regardless of the viciousness or dangerous propensities of the dog or the dog owner's knowledge or lack of knowledge of the dog's viciousness or dangerous propensities. (3) In any case described in subsection (2) of this section in which it is alleged and proved that the dog owner had knowledge or notice of the dog's viciousness or dangerous propensities, the court, upon a motion made by the victim or the personal representative of the victim, may enter an order that the dog be euthanized by a licensed veterinarian or licensed shelter at the expense of the dog owner. (4) For purposes of this section, a person shall be deemed to be lawfully on public or private property if he or she is in the performance of a duty imposed upon him or her by local, state, or federal laws or regulations or if he or she is on property upon express or implied invitation of the owner of the property or is on his or her own property. (5) A dog owner shall not be liable to a person who suffers bodily injury, serious bodily injury, or death from being bitten by the dog: (a) While the person is unlawfully on public or private property; (b) While the person is on property of the dog owner and the property is clearly and conspicuously marked with one or more posted signs stating "no trespassing" or "beware of dog"; Memo: Model County Wide Dangerous Animal Ordinance for Jefferson County April 1 0, 2006 Page 6 of 7 (c) While the dog is being used by a peace officer or military personnel in the performance of peace officer or military personnel duties; (d) As a result of the person knowingly provoking the dog; (e) If the person is a veterinary health care worker, dog groomer, humane agency staff person, professional dog handler, trainer, or dog show judge acting in the performance of his or her respective duties; or (f) While the dog is working as a hunting dog, herding dog, farm or ranch dog, or predator control dog on the property of or under the control of the dog's owner. (6) Nothing in this section shall be construed to: (a) Affect any other cause of action predicated on other negligence, intentional tort, outrageous conduct, or other theories; (b) Affect the provisions of any other criminal or civil statute governing the regulation of dogs; or (c) Abrogate any provision of the "Colorado Governmental Immunity Act", article 10 of title 24, C.R.S. Source: L. 2004: Entire section added, p. 507, S 1, effective April 21. Memo: Model County Wide Dangerous Animal Ordinance for Jefferson County April 1 0, 2006 Page 7 of 7 CITY OF WHEAT RIDGE, COLORADO INTRODUCED BY COUNCIL MEMBER Council Bill No. 01 Ordinance No. Series of 2007 TITLE: AN ORDINANCE AMENDING CHAPTER 4 OF THE WHEAT RIDGE CODE OF LAWS CONCERNING THE REGULATION OF ANIMALS WHEREAS, the City Council of the City of Wheat Ridge, Colorado (the "City"), desires to amend Articles I, II and III of Chapter 4 of the City's Code of Laws, which concerns the regulation of animals within the City to specifically regulate dangerous and aggressive dogs within the City; and WHEREAS, Jefferson County desires to implement a countywide tracking system for dangerous and aggressive animals and countywide licensing system for dogs to promote responsible pet ownership and animal welfare; and WHEREAS, such a program benefits all those within the county by ensuring all dogs are vaccinated and easily identifiable; and WHEREAS, the program's licensing fees will, except for the cost of administration, be used for capital improvements of the Table Mountain Animal Center that serves Wheat Ridge's designated animal shelter for the boarding of animals impounded pursuant to the Wheat Ridge Code of Laws; and WHEREAS, amending the Code of Laws to adopt definitions of dangerous and aggressive dogs that are consistent with the county-wide licensing and tracking system will allow the City to participate in such county-wide licensing and tracking system; and WHEREAS, the job title "Animal-Park Enforcement Officer" has been changed to "Community Services Officer". NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WHEAT RIDGE, COLORADO: Section 1. Section 4-1 of the City of Wheat Ridge Code of Laws is hereby amended by the addition of the following definitions to be added alphabetically: AGGRESSIVE DOG MEANS ANY DOG THAT (1) APPROACHES ANY PERSON, WITHOUT PROVOCATION, IN A MENACING MANNER OR IN AN ATTITUDE OF ATTACHMENT 2 ATTACK, WHETHER OR NOT AN ATTACK ACTUALLY OCCURS; (2) INFLICTS A PUNCTURE WOUND, ABRASION, OR OTHER WOUND CAUSED BY THE DOG'S TEETH UPON A PERSON OR DOMESTIC ANIMAL, BUT THE INJURY DOES NOT MEET THE DEFINITION OF BODILY INJURY OR SERIOUS BODILY INJURY; OR (3) IN AN ATTACKING MANNER ENCROACHES OVER, THROUGH, OR UNDER A FENCE ONTO PUBLIC PROPERTY OR THE PRIVATE PROPERTY OF ANOTHER. BODILY INJURY MEANS ANY PHYSICAL INJURY THAT RESULTS IN SEVERE BRUISING, MUSCLE TEARS, OR SKIN LACERATIONS REQUIRING PROFESSIONAL MEDICAL TREATMENT OR ANY PHYSICAL INJURY THAT REQUIRES CORRECTIVE OR COSMETIC SURGERY. DANGEROUS DOG MEANS ANY DOG THAT (1) INFLICTS OR CAUSES BODILY INJURY, SERIOUS BODILY INJURY UPON A PERSON, OR DEATH UPON A PERSON OR DOMESTIC ANIMAL; (2) ENGAGES IN OR HAS BEEN TRAINED FOR ANIMAL FIGHTING; OR (3) HAS BEEN DETERMINED BY A COURT OF RECORD WITHIN THE ST ATE OF COLORADO TO BE A VICIOUS OR DANGEROUS ANIMAL AND ITS OWNER DOES NOT COMPLY WITH THE CONDITIONS IMPOSED BY STATE STATUTE, LOCAL ORDINANCE, OR COURT ORDER FOR OWNERSHIP OF SAID ANIMAL. DOMESTIC ANIMAL MEANS ANY DOG, CAT OR LIVESTOCK. SERIOUS BODILY INJURY MEANS BODILY INJURY WHICH, EITHER AT THE TIME OF THE ACTUAL INJURY OR AT A LATER TIME, INVOLVES A SUBSTANTIAL RISK OF DEATH, A SUBSTANTIAL RISK OF SERIOUS PERMANENT DISFIGUREMENT, A SUBSTANTIAL RISK OF PROTRACTED LOSS OR IMPAIRMENT OF THE FUNCTION OF ANY PART OR ORGAN OF THE BODY, OR BREAKS, FRACTURES, OR BURNS OF THE SECOND OR THIRD DEGREE. Section 2. The following definition in Section 4-1 of the City of Wheat Ridge Code of Laws is hereby amended as follows: Vicious animal means an animal, OTHER THAN A DOG, that unprovokedly bites or attacks humans or other animals, or an animal which is not adequately restrained in an enclosed area that approaches any person in an apparent attitude of attack or in a terrorizing or menacing manner. Section 3. Subsection (a) of Section 4-5 of the Wheat Ridge Code of Laws is hereby amended as follows: Sec. 4-5. Destruction or seizure on judge's order. (a) If a complaint has been filed in the municipal court of the city against the owner of an animal for a violation of this chapter, the municipal judge may, upon making a finding that such animal is vicious OR THAT A DOG IS DANGEROUS OR, THAT A DOG IS AGGRESSIVE AND HAS BEEN PREVIOUSLY FOUND BY THE COURT TO BE AN AGGRESSIVE OR DANGEROUS DOG or that it represents a clear and present danger to the citizens or to other -2- animals in the community, order such animal to be destroyed in a humane manner. Surrender of an animal by the owner thereof does not relieve or render the owner immune from the decision of the court nor to the fees, fines or other penalties which may result from a violation or violations of this chapter. Section 4. Subsection (b) of Section 4-8 of the Wheat Ridge Code of Laws is hereby amended as follows: Sec. 4-8. Running at large. (b) For purposes of sections 4-8(a) and 4-16, animals injured or killed in the street shall be considered as running at large; the COMMUNITY SERVICES officer shall remove all such animals and, at his discretion, take those needing medical attention to a veterinarian or to the animal shelter. Injured animals may be destroyed humanely if it is determined by the animal shelter or the attending veterinarian that the animal has sustained critical injuries, is suffering extreme pain, and/or has a poor prognosis for recovery. The animal shelter shall consult with a veterinarian as to the disposition of injured animals when the animals' prognosis cannot be ascertained by the animal shelter with reasonable certainty. The animal owner shall be liable for all expenses for the treatment, impoundment and/or destruction of any animal. The city and any of its employees, the animal shelter and any of its employees, and any veterinarian consulted shall be immune from liability for any actions taken pursuant to this subsection (b). Section 5. The title and subsections (b) of Section 4-15 of the Wheat Ridge Code of Laws are hereby amended as follows and subsection (c) of Section 4-15 is hereby repealed: SEC 4-15. Vicious animals; DESTRUCTION OF VICIOUS ANIMALS, DANGEROUS DOGS, AGGRESSIVE DOGS IF CANNOT BE SAFELY IMPOUNDED. (b) A COMMUNITY SERVICES officer or other employee of the city may impound a vicious animal, DANGEROUS DOG OR AGGRESSIVE DOG, if the officer, employee or official reasonably believes that such animal constitutes a significant and immediate threat to the health or safety of persons, property or other animals in the neighborhood. If impoundment cannot be made with safety to the COMMUNITY SERVICES officer or other city employees, official or citizens, the animal may be destroyed without notice to the animal owner. fej---I)e-33 lli.c:r.:ainej a3 ~0i pl' ~ c{'~ for prDtection o!' ;:e:-3OU::; 3:- property in cOL.:?l:m:.se-with-seetbr. :- tbis sectio:: sa-long as such aogs r~:nffi:: ~onfined to a s~c are& lihJ ~ont-r3l. ~:-::;han ::&t Gs-a aefense t3 J ':X;.~a~0n uLJer-thi;; section tJ.:tat-.the...dog '.vas restrained-by a leash, cod 3f cha-in a~ ~b JU'J.::;OO-the violation to occur. Section 6. Chapter 4 ofthe City of Wheat Ridge Code of Laws is hereby amended by the addition of a new Section 4-17, which shall be as follows: SEC. 4-17 . UNLAWFUL POSSESSION OF DANGEROUS DOG. (a) IT IS UNLAWFUL FOR A PERSON WHO IS A DOG OWNER TO KEEP, HARBOR OR POSSESS A DANGEROUS DOG WITHIN THE CITY. -3- (b) AN AFFIRMATIVE DEFENSE TO THE VIOLATION OF SUBSECTION (a) OF THIS SECTION SHALL BE: 1. THAT, AT THE TIME OF THE ATTACK BY THE DANGEROUS DOG, WHICH CAUSED INJURY TO OR THE DEATH OF A DOMESTIC ANIMAL: A. THE DOMESTIC ANIMAL WAS AT LARGE, AND ENTERED UPON THE PROPERTY OF THE OWNER AND THE ATTACK BEGAN, BUT DID NOT NECESSARILY END, UPON SUCH PROPERTY; OR. B. THE DOMESTIC ANIMAL WAS BITING OR OTHERWISE ATTACKING THE DANGEROUS ANIMAL OR ITS OWNER. 2. THAT, AT THE TIME OF THE ATTACK BY THE DANGEROUS DOG, WHICH CAUSED INJURY TO A PERSON, THE VICTIM OF THE ATTACK WAS: A. COMMITTING OR ATTEMPTING TO COMMIT A CRIMINAL OFFENSE AGAINST THE DOG OWNER, AND THE ATTACK DID NOT OCCUR ON THE OWNER'S PROPERTY; OR B. COMMITTING OR ATTEMPTING TO COMMIT A CRIMINAL OFFENSE AGAINST A PERSON ON THE OWNER'S PROPERTY OR THE PROPERTY ITSELF AND THE A TT ACK BEGAN, BUT DID NOT NECESSARILY END, UPON SUCH PROPERTY; OR C. TORMENTING, PROVOKING, ABUSING OR INFLICTING INJURY UPON THE DOG IN SUCH AN EXTREME MANNER THAT THE A TT ACK WAS A RESULT OF THE VICTIM'S ACTIONS. (c) THE AFFIRMATIVE DEFENSES SET FORTH IN SUBSECTION (b) OF THIS SECTION SHALL NOT BE AVAILABLE TO A DOG OWNER WHO HAS TRAINED THE DANGEROUS DOG TO, OR HAS ENGAGED THE DANGEROUS DOG IN, ANIMAL FIGHTING. (d) THE PROVISIONS OF THIS SECTION SHALL NOT APPLY TO THE FOLLOWING: 1. PEACE OFFICERS WHILE THE OFFICER IS ENGAGED IN THE PERFORMANCE OF PEACE OFFICER DUTIES; 2. DOG OWNERS WHOSE DOG INFLICTS BODILY INJURY OR SERIOUS BODILY INJURY TO ANY VETERINARY HEALTH CARE WORKER, ANIMAL GROOMER, HUMANE AGENCY PERSONNEL, PROFESSIONAL ANIMAL HANDLER, OR TRAINER, EACH ACTING IN THE PERFORMANCE OF HIS OR HER RESPECT DUTIES UNLESS THE OWNER IS SUBJECT TO A COURT ORDER ISSUED PURSUANT TO SUBSECTION (e) 14 OF SECTION 4-17 AND THE DOG OWNER HAS FAILED TO COMPLY WITH THE WRITTEN NOTIFICATION MANDATE; OR -4- 3. THE DOG OWNER OF ANY DOG THAT INFLICTS INJURY UPON OR CAUSES THE DEATH OF A DOMESTIC ANIMAL WHILE THE DOG WAS WORKING AS A HUNTING DOG, HERDING DOG, OR PREDATOR CONTROL DOG ON THE PROPERTY OR UNDER THE CONTROL OF THE DOG OWNER AND THE INJURY OR DEATH WAS TO A DOMESTIC ANIMAL NATURALLY ASSOCIATED WITH THE WORK OF SUCH DOG. (e) UPON THE CONVICTION OR ENTRY OF A PLEA OF GUILTY OR NO CONTEST OR ENTRY INTO A DEFERRED JUDGMENT TO A CHARGE OF POSSESSION OF A DANGEROUS DOG BY THE DOG OWNER, THE COURT SHALL ORDER THAT THE DOG THAT IS THE SUBJECT OF THE CHARGE SHALL ONLY BE POSSESSED UPON THE DOG OWNER'S COMPLIANCE WITH THE FOLLOWING CONDITIONS: 1. THE DOG OWNER SHALL, AT THE DOG OWNER'S EXPENSE, HAVE THE DOG SPAYED OR NEUTERED AND SHALL PROVIDE PROOF TO THE COMMUNITY SERVICES OFFICER. 2. THE DOG OWNER SHALL, AT THE DOG OWNER'S EXPENSE, HAVE A MICROCHIP CONTAINING AN IDENTIFICATION NUMBER IMPLANTED INTO THE DOG AND PROVIDE SUCH INFORMATION TO THE COMMUNITY SERVICES OFFICER. THE DOG OWNER SHALL PRODUCE THE DOG FOR VERIFICATION OF THE MICROCHIP IMPLANTATION BY THE COMMUNITY SERVICES OFFICER. THE COMMUNITY SERVICES OFFICER SHALL MAINTAIN RECORDS CONTAINING THE REGISTRATION NUMBER AND NAME OF SAID DOG AND THE NAME AND ADDRESS OF THE DOG OWNER. THE DOG OWNER SHALL BE RESPONSIBLE FOR NOTIFYING THE COMMUNITY SERVICES OFFICER OF ANY CHANGE IN ADDRESS, OWNERSHIP, OR DEATH OF THE DOG. 3. AT ALL TIMES WHEN THE DOG IS AT THE PROPERTY OF THE DOG OWNER, THE DOG OWNER SHALL KEEP THE DOG CONFINED EXCEPT AS FURTHER ALLOWED BY THIS SECTION. WHEN OUTDOORS, THE DOG SHALL BE CONFINED IN AN ESCAPE-PROOF ENCLOSURE. ALL STRUCTURES MUST BE LOCKED WITH A KEY OR COMBINATION LOCK WHEN THE DOG IS WITHIN THE STRUCTURE. SUCH STRUCTURE SHALL HAVE A SECURE BOTTOM OR FLOOR ATTACHED TO THE SIDES OF THE PEN OR THE SIDES OF THE PEN SHALL BE EMBEDDED IN THE GROUND NO LESS THAN TWO (2) FEET. ALL SUCH STRUCTURES MUST BE ADEQUATELY LIGHTED AND VENTILATED AND KEPT IN A CLEAN AND SANITARY CONDITION. ALL STRUCTURES ERECTED TO HOUSE SUCH DOG MUST COMPLY WITH ALL ZONING AND BUILDING REQUIREMENTS. THE COMMUNITY SERVICES OFFICER SHALL INSPECT THE STRUCTURE TO ENSURE COMPLIANCE WITH SUCH CONDITIONS. 4. THE DOG MAY NOT BE KEPT ON A PORCH, PATIO, OR IN ANY PART OF A HOUSE OR STRUCTURE THAT WOULD ALLOW THE DOG TO EXIT SUCH BUILDING UPON ITS OWN VOLITION. IN ADDITION, THE DOG MAY NOT BE KEPT IN A HOUSE OR STRUCTURE WHEN THE WINDOWS ARE OPEN OR WHEN SCREEN -5- WINDOWS OR SCREEN DOOR ARE THE ONLY OBSTACLE PREVENTING THE DOG FROM EXITING THE STRUCTURE. 5. WHEN OUTDOORS IN A PRIV ATE YARD, THE DOG MUST BE IN THE SECURE ENCLOSURE OR IN THE PHYSICAL PRESENCE OF A RESPONSIBLE ADULT, WHO IS A MINIMUM OF TWENTY-ONE (21) YEARS OF AGE AND IS CAPABLE OF EFFECTIVELY CONTROLLING THE DOG, AND INSIDE OF A SECURE SIX-FOOT FENCE ENCLOSURE. THE COMMUNITY SERVICES OFFICER SHALL INSPECT THE FENCE TO ENSURE COMPLIANCE WITH SAID CONDITION. AN ELECTRONIC FENCE DOES NOT COMPLY WITH THE MANDATES OF THIS SUBSECTION. 6. AT ALL TIMES WHEN THE DOG IS OFF THE PROPERTY OF THE DOG OWNER, THE DOG SHALL BE MUZZLED AND EITHER PLACED WITHIN A SECURE TEMPORARY ENCLOSURE, OR SECURED BY A LEASH OF NO LONGER THAN FOUR (4) FEET IN LENGTH HELD BY A RESPONSIBLE ADULT, WHO IS A MINIMUM OF TWENTY-ONE (21) YEARS OF AGE AND IS PHYSICALLY CAPABLE OF CONTROLLING THE DOG. EXTENSION-STYLE LEASHES SHALL NOT BE USED. 7. THE DOG MAY NOT BE LEASHED TO ANY INANIMATE OBJECT. 8. THE DOG OWNER SHALL POST, AT EACH ENTRANCE TO THE DOG OWNER'S PROPERTY WHERE THE DOG IS KEPT, A CONSPICUOUS AND CLEARLY LEGIBLE SIGN OF AT LEAST EIGHT (8) BY TEN (10) INCHES, WHICH SHALL CONTAIN THE WORDS "BEWARE, DANGEROUS ANIMAL" IN LETTERING AT LEAST TWO (2) INCHES IN HEIGHT. 9. THE DOG OWNER SHALL NOT SELL OR TRANSFER THE DOG TO ANY PERSON EXCEPT A MEMBER OF THE DOG OWNER'S IMMEDIATE FAMILY WHO SHALL THEN BE DEEMED THE DOG OWNER AND SUBJECT TO ALL THE REQUIREMENTS OF THIS TITLE. FOR THE PURPOSES OF THIS SUBSECTION, "IMMEDIATE FAMILY" SHALL MEAN THE OWNER'S SPOUSE, CHILD, PARENT, OR SIBLING. 10. THE DOG OWNER SHALL IMMEDIATELY NOTIFY THE POLICE DEP ARTMENT OR COMMUNITY SERVICES OFFICER IN THE EVENT THAT THE DOG IS AT-LARGE, STOLEN, OR HAS ACTED IN A DANGEROUS OR AGGRESSIVE MANNER. 11. THE DOG OWNER MAY TRANSPORT THE DOG THROUGH THE CITY. DURING SUCH TRANSPORT, THE DOG MUST BE MUZZLED AND CONFINED EITHER WITHIN A SECURE TEMPORARY ENCLOSURE OR BY A LEASH NO LONGER THAN FOUR (4) FEET IN LENGTH, WHICH IS HELD BY A RESPONSIBLE ADULT WHO IS A MINIMUM OF 21 YEARS OF AGE, AND IS CAP ABLE OF EFFECTIVELY CONTROLLING THE DOG. 12. THE DOG OWNER WHOSE DOG INJURED OR DESTROYED ANY DOMESTIC ANIMAL SHALL MAKE RESTITUTION TO THE INJURED OR DEAD DOMESTIC ANIMAL'S OWNER PURSUANT TO APPLICABLE PROVISIONS -6- GOVERNING RESTITUTION. RESTITUTION SHALL BE EQUAL TO THE GREATER OF THE FAIR MARKET VALUE OR THE REPLACEMENT COST OF THE DOMESTIC ANIMAL ON THE DATE, BUT BEFORE THE TIME, THE ANIMAL WAS INJURED OR DESTROYED PLUS ANY REASONABLE AND NECESSARY MEDICAL EXPENSES INCURRED IN TREATING THE ANIMAL AND ANY ACTUAL COSTS INCURRED IN REPLACING THE INJURED OR DESTROYED ANIMAL. 13. THE DOG OWNER WHOSE DOG INFLICTED BODILY INJURY OR SERIOUS BODILY INJURY UPON ANY PERSON, SHALL MAKE RESTITUTION PURSUANT TO THE PROVISIONS GOVERNING RESTITUTION. 14. PRIOR TO THE DANGEROUS DOG RECEIVING ANY SERVICE OR TREATMENT, THE DOG OWNER SHALL DISCLOSE IN WRITING TO ANY PROVIDER OF THE SERVICE OR TREATMENT, INCLUDING BUT NOT LIMITED TO A VETERINARY HEALTH CARE WORKER, DOG GROOMER, HUMANE AGENCY STAFF PERSON, PET ANIMAL CARE F ACILITY STAFF PERSON, PROFESSIONAL ANIMAL HANDLER, OR DOG TRAINER, EACH ACTING IN THE PERFORMANCE OF HIS RESPECTIVE DUTIES, THAT THE DANGEROUS DOG HAS BEEN THE SUBJECT OF A CONVICTION. 15. THE DOG SHALL BE CURRENTLY INOCULATED AGAINST RABIES AND SHALL DISPLAY RABIES AND IDENTIFICATION TAGS IN COMPLIANCE WITH SECTION 4-31 OF THIS CHAPTER. (f) UPON CONVICTION OR ENTRY OF A PLEA OF GUILTY OR NO CONTEST OR ENTRY INTO A DEFERRED JUDGMENT TO A CHARGE OF POSSESSION OF A DANGEROUS DOG BY THE DOG OWNER, THE COURT MAY ORDER THAT THE DOG SUBJECT TO THE CHARGE SHALL ONLY BE POSSESSED UPON THE DOG OWNER'S COMPLIANCE WITH THE FOLLOWING CONDITIONS: 1. NO OTHER DOG SHALL BE POSSESSED OR HARBORED AT THE DOG OWNER'S RESIDENCE DURING THE PERIOD OF COURT ORDERED SUPERVISION. 2. COMMUNITY SERVICE WORK AT AN ANIMAL SHELTER. 3. SUCCESSFUL COMPLETION OF A COURT APPROVED ANIMAL OBEDIENCE TRAINING, BEHAVIOR MODIFICATION, PET MANAGEMENT CLASS, AND/OR ANY OTHER TREATMENT PROGRAM OR TRAINING THAT THE COURT MAY DEEM APPROPRIATE. THE DOG OWNER SHALL BEAR THE COST OF THE PROGRAM OR TRAINING. (g) IT SHALL BE UNLAWFUL FOR ANY PERSON TO FAIL TO COMPLY WITH THE REQUIREMENTS OF THIS SECTION AND ANY SUCH VIOLATION SHALL SUBJECT THE VIOLATOR TO PROSECUTION FOR UNLAWFUL POSSESSION OF A DANGEROUS DOG PURSUANT TO THIS CHAPTER. (h) A DOG OWNER MAY REQUEST AN EXEMPTION TO THESE PROVISIONS IF, FOR MEDICAL REASONS, HIS/HER DOG CANNOT BE VACCINATED OR -7- SPA YED/NEUTERED. IN THIS EVENT, A DOG OWNER MUST SUBMIT AN AFFIDAVIT FROM A LICENSED VETERINARIAN STATING THE REASONS WHY THE DOG IS UNABLE TO BE VACCINATED OR SPA YED/NEUTERED. Section 7. Chapter 4 of the City of Wheat Ridge Code of Laws is hereby amended by the addition of a new Section 4-18, which shall be as follows: SEC. 4-18. UNLAWFUL POSSESSION OF AGGRESSIVE DOG. (a) IT IS UNLAWFUL FOR A PERSON WHO IS A DOG OWNER TO KEEP, HARBOR OR POSSESS AN AGGRESSIVE DOG WITHIN THE CITY. (b) THE AFFIRMATIVE DEFENSES AND EXCEPTIONS SET FORTH IN SECTION 4- 15, SUBSECTIONS (b) AND (c), SHALL BE APPLICABLE TO ANY PROSECUTION FOR A VIOLATION OF THIS SECTION. (c) UPON CONVICTION OR ENTRY OF A PLEA OF GUILTY OR NO CONTEST OR ENTRY INTO A DEFERRED JUDGMENT TO A CHARGE OF POSSESSION OF AN AGGRESSIVE DOG, THE COURT SHALL ORDER THAT THE DOG SUBJECT TO THE CHARGE SHALL ONLY BE POSSESSED UPON THE DOG OWNER'S COMPLIANCE WITH THE FOLLOWING CONDITIONS: 1. THE DOG OWNER SHALL, AT THE DOG OWNER'S EXPENSE, HAVE A MICROCHIP CONTAINING AN IDENTIFICATION NUMBER IMPLANTED INTO THE DOG AND PROVIDE SUCH INFORMATION TO THE ANIMAL CONTROL SECTION OF THE WHEAT RIDGE POLICE DEPARTMENT. THE DOG OWNER SHALL PRODUCE THE DOG FOR VERIFICATION BY ANIMAL CONTROL OF THE MICROCHIP IMPLEMENTATION. ANIMAL CONTROL SHALL MAINTAIN RECORDS CONTAINING THE REGISTRATION NUMBER AND NAME OF SAID DOG AND NAME AND ADDRESS OF THE DOG OWNER. THE DOG OWNER SHALL BE RESPONSIBLE FOR NOTIFYING ANIMAL CONTROL OF ANY CHANGE IN THE ADDRESS, OWNERSHIP, OR DEATH OF THE DOG. 2. AN EXTENSION STYLE LEASH SHALL NOT BE USED UPON SAID DOG. 3. THE DOG SHALL NOT BE LEASHED TO ANY INANIMATE OBJECT. 4. THE DOG SHALL BE CURRENTLY INOCULATED AGAINST RABIES AND SHALL DISPLAY RABIES AND IDENTIFICATION TAGS IN COMPLIANCE WITH SECTION 4-31 OF THIS CHAPTER. (d) UPON THE CONVICTION OR ENTRY OF A PLEA OF GUILTY OR NO CONTEST OR ENTRY INTO A DEFERRED JUDGMENT TO A CHARGE OF POSSESSION OF A DANGEROUS DOG BY THE DOG OWNER, THE COURT MAY ORDER THAT THE DOG THAT IS THE SUBJECT OF THE CHARGE SHALL ONLY BE POSSESSED UPON THE DOG OWNER'S COMPLIANCE WITH THE FOLLOWING CONDITIONS: 1. COMMUNITY SERVICE WORK AT ADOG SHELTER. -8- 2. SUCCESSFUL COMPLETION OF A COURT APPROVED DOG OBEDIENCE TRAINING, BEHA VIOR MODIFICATION, PET MANAGEMENT CLASS, AND/OR ANY OTHER TREATMENT PROGRAM THAT THE COURT MAY DEEM APPROPRIATE. THE DOG OWNER SHALL BEAR THE COST OF THE PROGRAM OR TRAINING. 3. THE DOG OWNER SHALL, AT THE DOG OWNER'S EXPENSE, HAVE THE ANIMAL SPAYED OR NEUTERED AND SHALL PROVIDE PROOF TO THE ANIMAL CONTROL SECTION OF THE WHEAT RIDGE POLICE DEPARTMENT THAT THE STERILIZATION HAS BEEN PERFORMED. (e) A DOG OWNER MAY REQUEST AN EXEMPTION TO THESE PROVISIONS IF, FOR MEDICAL REASONS, HIS/HER DOG CANNOT BE VACCINATED OR SP A YEDINEUTERED. IN THIS EVENT, A DOG OWNER MUST SUBMIT AN AFFIDAVIT FROM A LICENSED VETERINARIAN STATING THE REASONS WHY THE DOG IS UNABLE TO BE VACCINATED OR SPAYEDINEUTERED. Section 8. Section 4-52 of the Wheat Ridge Code of Laws is hereby amended by the addition of three new subsections, amendments to new subsections (d) and (e), and relettering new subsections (d) through (g) and shall be as follows: Sec. 4-52. Custody and disposition of impounded animals. (a) UPON CITATION OF A DOG OWNER FOR POSSESSION OF A DANGEROUS DOG PURSUANT TO SECTION 4-15(a), COMMUNITY SERVICES OFFICERS SHALL TAKE INTO CUSTODY THE DOG OWNER'S DOG AND SHALL PLACE THE DOG IN THE ANIMAL SHELTER AT THE DOG OWNER'S EXPENSE PENDING FINAL DISPOSITION OF THE CHARGE AGAINST THE OWNER IF: 1. THE DOG OWNER'S DOG HAS INFLICTED BODILY INJURY OR SERIOUS BODILY INJURY UPON A PERSON; 2. THE DOG OWNER HAS FAILED TO COMPLY WITH THE RESTRICTIONS IMPOSED BY STATE STATUTE, LOCAL ORDINANCE OR COURT ORDER FOR THE POSSESSION OF A DANGEROUS DOG; OR 3. THE DOG OWNER'S DOG HAS BEEN ENGAGED IN OR TRAINED FOR ANIMAL FIGHTING. (b) UPON CITATION OF A DOG OWNER FOR POSSESSION OF A DANGEROUS DOG, IF THE VICTIM OF THE OFFENSE IS A DOMESTIC ANIMAL COMMUNITY SERVICES OFFICERS MAY TAKE THE DOG OWNER'S DOG INTO CUSTODY AND MAY PLACE THE DOG IN THE ANIMAL SHELTER AT THE OWNER'S EXPENSE PENDING FINAL DISPOSITION OF THE CHARGE AGAINST THE OWNER. (c) WHEN IMPOUNDED PURSUANT TO SUBSECTION (a) OR (b) OF THIS SECTION, THE DOG SHALL REMAIN IMPOUNDED UNLESS OTHERWISE ORDERED RELEASED BY THE COURT AND THE DOG OWNER SHALL BE LIABLE FOR THE TOTAL COST -9- OF BOARD AND CARE FOR THE DOG. THE COURT SHALL ORDER ANY CONVICTED DOG OWNER OR ANY OWNER WHO ENTERED INTO A DEFERRED JUDGMENT OR DEFERRED PROSECUTION TO MAKE PAYMENT TO THE ANIMAL SHELTER FOR ALL IMPOUNDMENT FEES, BOARDING COSTS, AND ANY REASONABLE AND NECESSARY MEDICAL EXPENSES INCURRED DURING THE IMPOUNDMENT OF THE DOG. (d) Whenever any provision of this chapter, the ordinances of the city or state statutes provide that an animal may be taken into custody or impounded by COMMUNITY SERVICES officers, or employees or agents ofthe city, this section shall also apply. (e) Whenever a COMMUNITY SERVICES officer or other employee or agent of the city impounds an animal, such animal shall be impounded in a humane manner for a period of not less than five (5) days following the date of notice to the animal owner of such impoundment pursuant to section 4-53; any animal so impounded which is not claimed within said five-day period may be disposed of by sale, donation or destruction at the sole discretion of the animal shelter. (f) No animal shall be destroyed before the lapse of five (5) days following notice of impoundment pursuant to section 4-53, unless the animal shelter determines that the animal is critically ill or injured, is suffering extreme pain, and/or has a poor prognosis for recovery. The animal shelter shall consult with a veterinarian as to the disposition of injured animals, when the animal's prognosis cannot be ascertained by the animal shelter with reasonable certainty. The owner of any impounded animal shall be responsible for the payment of such boarding and impoundment fees established by the animal shelter. The city and its employees, the animal shelter and its employees, and any veterinarian consulted shall be immune from liability for any actions taken pursuant to this section. (g) Notwithstanding the foregoing, whenever an animal is impounded by order of the municipal court or other court, the animal shelter shall not sell, donate or destroy such animal unless such action is permitted by a subsequent order of the same court which ordered the initial impoundment. Section 9. Section 4-31 of the Wheat Ridge code of Laws is hereby amended as follows: Sec. 4-31. Dog and cat licenses. (a) Territorial application. The provisions of this section shall apply to all dogs and cats, and all owners of all dogs and cats present within the jurisdictional boundaries of the city regardless of whether the owner or keeper of the dog or cat resides within the city. (b) Violations and penalty. Any dog or cat owner who violates any of the provisions of this section shall be guilty of a misdemeanor and, upon conviction thereof, shall be subject to a fine of not more than one thousand dollars ($1,000.00). (c) Required; described. A license is required for all dogs or cats in this city as follows: A valid dog or cat license shall be a current Mile-Hi rabies tag and registration certificate. A VALID -10- DOG LICENSE SHALL BE A DOG LICENSE ISSUED BY THE JEFFERSON COUNTY ANIMAL CONTROL DIVISION OR SUCH OTHER AGENT AS MAY BE DESIGNATED BY JEFFERSON COUNTY FROM TIME TO TIME. A CAT OR DOG OWNER MAY REQUEST AN EXEMPTION TO THIS REQUIREMENT IF, FOR MEDICAL REASONS, HIS/HER CAT OR DOG CANNOT BE VACCINATED. IN THIS EVENT, A CAT OR DOG OWNER MUST SUBMIT AN AFFIDAVIT FROM A LICENSED VETERINARIAN STATING THE REASONS WHY THE CAT OR DOG IS UNABLE TO BE VACCINATED. (d) Wearing of tag; availability of certificate. A current and valid Mile-Hi rabies tag shall be worn on a collar or harness by the dog at all times, UNLESS A CURRENT AND VALID TAG FROM THE JEFFERSON COUNTY ANIMAL CONTROL DIVISION, WHICH REQUIRES PROOF OF CURRENT RABIES V ACINA TION FOR ITS ISSUANCE, IS WORN ON A COLLAR OR HARNESS BY THE DOG AT ALL TIMES. A current and valid registration certificate, as above-described, shall be kept in the possession of the owner of any dog or cat within the city, and such registration certificate or a copy of it shall be produced or producible by the owner as proof of current registration in the event of loss of the correspondingly numbered tag. (e) When to obtain license--Initially, A dog or cat owner shall obtain a license as above- described for his dog or cat within ten (10) days after the dog or cat reaches four (4) months of age, or within ten (10) days after the dog's or cat's first permanent teeth appear, whichever comes first. A DOG OWNER SHALL OBTAIN A LICENSE AS ABOVE-DESCRIBED FOR HIS DOG ON OR BEFORE THE DATE THE DOG REACHES THE AGE OF SIX (6) MONTHS, OR WITHIN THIRTY DAYS OF ACQUISITION OF SAID DOG, WHICHEVER OCCURS LAST. (f) Same--Renewal. The owner of any dog or cat shall have his dog or cat relicensed, AS SUCH LICENSING IS REQUIRED IN SUBSECTION (c), ABOVE, annually. with a Mite-Hi ~::.~i0S ta; ::""'l3 registration. Such Mil::! ~-i :,coi-Gc bg ::.s3-regi:Jtr::t:-i~m J3l#HeateLICENSE shall be considered current for a twelve-month period from the date of issue. (g) Obtainment from licensed veterinarian. Mile-Hi rabies tags and registration certificates are only to be issued by and obtained from veterinarians currently licensed to practice veterinary medicine in the state after vaccination of the dog or cat with a U.S.D.A. licensed rabies vaccine. (h) New residents. New residents of the city may be issued a current Mile-Hi rabies tag and registration certificate for their dog or cat by a veterinarian licensed to practice in the state, upon proof of having had the dog or cat vaccinated for rabies by a licensed veterinarian with a current U.S.D.A. licensed rabies vaccine. (i) Nontransferability. No person shall affix to the collar or harness of any dog or cat, or permit to remain affixed, a Mil:: ~i f::.~ies-tag evidencing licensing and vaccination except for the specific dog or cat for which the tag was assigned at the time the tag was issued. Section 10. Subsections (a) and (c) of Section 4-53 ofthe Wheat Ridge Code of Laws are hereby amended as follows: Sec. 4-53. Notice of impoundment to animal owner. (a) Whenever a COMMUNITY SERVICES officer, other city employee or official impounds an animal pursuant to this chapter, any ordinance of the city or state statutes, such COMMUNITY -11- SERVICES officer or employee or official shall, as soon as possible after impoundment, notify the owner of such impoundment. If the identity of the animal owner is known, such notice shall be adequate if directly communicated by the officer, employee or official, either orally or in writing, to the animal owner either personally or by telephone. Personal service of a summons and complaint upon an animal owner for a violation of this chapter or other ordinances of the city shall constitute adequate written notice of impoundment. (c) If the identity of the animal owner is unknown, the COMMUNITY SERVICES officer or other employee or official of the city shall make a reasonable attempt to locate and identify the animal owner and, if such owner is found, to notify the animal owner of the impoundment pursuant to either subsection (a) or (b) of this section. Section 11. Section 4-54 of the Wheat Ridge Code of Laws is hereby amended as follows: Sec. 4-54. Proceedings against owner. If an animal is impounded, the COMMUNITY SERVICES officer may institute proceedings in the municipal court of the city on behalf of the city against the owner, if known, charging such owner with a violation of this chapter. Nothing herein shall be construed as preventing the COMMUNITY SERVICES officer from instituting a proceeding in the municipal court for violation of this section where there has been an impoundment. Section 12. Subsection (a) and (b) of Section 4-55 ofthe Wheat Ridge Code of Laws are hereby amended as follows: Sec. 4-55. Immediate destruction when deemed in public interest. (a) Nothing in this chapter shall be construed to prevent the immediate destruction of any vicious dog or other vicious animal when deemed necessary in the interest of public safety by the COMMUNITY SERVICES officer or any other law enforcement personnel, or by any other person under circumstances where a significant and immediate threat to the health or safety of a person or other animal exists. (b) Nothing in this chapter shall be construed to prevent the immediate destruction of any domestic or wild animal when a veterinarian, COMMUNITY SERVICES officer or other law enforcement officer has determined that such animal is critically ill or injured, is suffering extreme pain and/or has a poor prognosis for recovery. The city and its employees, and any veterinarian consulted, shall be immune from liability for any actions taken pursuant to this subsection (b). Moreover, nothing in this chapter shall be construed to limit or restrict a person's ability to protect life and property pursuant to C.R.S. SS 106(3) and 33-6-107(9) (as amended) or to limit or restrict the authority of any person working for the Colorado Division of Wildlife, or at the direction of an employee from the Colorado Division of Wildlife. Section 13. 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 legislative object sought to be attained. -12- Section 14. Effective Date. With the exception of Section 9, this Ordinance shall take effect fifteen days after final publication, as provided by Section 5.11 of the Charter. Section 9 of this Ordinance shall be effective upon Jefferson County's implementation of a countywide licensing system for dogs and the execution by all parties of an intergovernmental agreement concerning the use of the licensing program's licensing fees. INTRODUCED, READ, AND ADOPTED on first reading by a vote of to on this day of , 2007, 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 , 2007, at 7:00 o'clock p.m., in the Council Chambers, 7500 West 29th Avenue, Wheat Ridge, Colorado. READ, ADOPTED AND ORDERED PUBLISHED on second and final reading by a vote of to , this day of ,2007. SIGNED by the Mayor on this day of ,2007. Jerry DiTullio, Mayor ATTEST: Christa Jones, Acting City Clerk Approved As To Form Gerald E. Dahl, City Attorney First Publication: Second Publication: Wheat Ridge Transcript Effective Date: -13- ITEM NO: ~I REQUEST FOR CITY COUNCIL ACTION COUNCIL MEETING DATE: January 8,2007 TITLE: RESOLUTION 01-2007 - A RESOLUTION APPROVING THE ADOPTION OF THE AMENDED AND RESTATED CITY OF WHEAT RIDGE MONEY PURCHASE PENSION PLAN FOR DESIGNATED POLICE DEPARTMENT EMPLOYEES FOR THE PURPOSE OF STREAMLINING THE PLAN DOCUMENT, REMOVING INCONSISTENCIES AND PLAN PROVISIONS NOT APPLICABLE TO GOVERNMENTAL PENSION PLANS, PERMITTING ADDITIONAL FLEXIBILITY IN PLAN OPERATION AND REDUCING FUTURE COSTS TO MAINTAIN THE PLAN'S TAX-QUALIFIED STATUS o PUBLIC HEARING o BIDS/MOTIONS l:8J RESOLUTIONS o ORDINANCES FOR 1ST READING (Date: o ORDINANCES FOR 2ND READING ) Quasi-Judicial: o Yes l:8J No (/~f FL~~. rt 1 (= Jo E. Cassa, Pension Board President E ECUTIVE SUMMARY: ~ ~ "" ')('-q City Manag~ Cf The sworn personnel of the police department participate in The City of Wheat Ridge Money Purchase Pension Plan for Designated Police Department Employees ("The Plan"). 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 Pension Board, as required by the Wheat Ridge City Code of Laws. The current Plan was restated effective January 1, 2006. Major revisions were made to the Plan in order to bring it into compliance with applicable IRS tax codes. On October 30, 2006, the pension board retained the legal counsel of Holland & Hart to provide services, one of which was to review the Plan. As a result of the review and findings, it was recommended that the Pension Board consider restating the plan to make it more operational in nature for both Board and plan participants. COMMISSION/BOARD RECOMMENDATION: The Wheat Ridge Police Department Pension Board recommends approval of the proposed Resolution. STATEMENT OF THE ISSUES: As a result of the Pension Boards review, the following issues exist: . The current plan is very lengthy, cumbersome to read, understand and interpret. . There are inconsistencies in the current plan requiring correction. . There are provisions in the plan which do not apply to governmental pension plans. As a result, the Pension Board must adhere to these provisions which results in limited flexibility. . Future expenditures of Plan funds will be required to ensure the Plan is kept current with the applicable IRS tax code. AL TERNATIVES CONSIDERED: There are two alternatives available to the City Council. The first alternative is not to approve the restated pension plan. The result of failing to approve the restated plan includes: . The current pension plan will maintain pension board and participant requirements that are not applicable to governmental pension plans. . Expenditure of Pension Plan funds will be required to ensure the Plan is kept up to date with the IRS tax code. The second alternative is to approve the restated plan. Upon approval, the restated plan will: . Provide a current and up to date pension plan which complies with IRS tax code. . Reduce pension plan expenses as ICMA-RC will update the prototype plan as needed in order to remain in compliance with the IRS. FINANCIAL IMPACT: There is no known financial impact on the City at this time. RECOMMENDED MOTION: "I move to approve Resolution 01-2007 - A Resolution Approving the Adoption ofthe Amended and Restated City of Wheat Ridge Money Purchase Pension Plan for Designated Police Department Employees for the Purpose of Streamlining the Plan Document, Removing Inconsistencies and Plan Provisions Not Applicable to Governmental Pension Plans, Permitting Additional Flexibility in Plan Operation and Reducing Future Costs to Maintain the Plan's Tax-Qualified Status." or, "1 move to table indefinitely Resolution 01-2007 - A Resolution Approving the Adoption of the Amended and Restated City of Wheat Ridge Money Purchase Pension Plan for Designated Police Department Employees for the Purpose of Streamlining the Plan Document, Removing Inconsistencies and Plan Provisions Not Applicable to Governmental Pension Plans, Permitting Additional Flexibility in Plan Operation and Reducing Future Costs to Maintain the Plan's Tax- Qualified Status.", for the following reason(s) " Report Prepared by: Reviewed by: Joseph E. Cassa, Pension Board President Daniel G. Brennan, Chief of Police Attachments: 1. ICMA-RC Adoption Agreement 2. ICMA-RC Prototype Plan 3. ICMA-RC acceptance letter concerning plan amendment regarding beneficiaries 4. Resolution 01-2007 070108 City Council Action Form 2007 Restated Pension Plan,doc ICMA RETIREMENT CORPORATION GOVERNMENTAL MONEY PURCHASE PLAN & TRUST ADOPTION AGREEMENT PLAN NUMBER 10- 002 The Employer hereby establishes a Money Purchase Plan and Trust to be known as The City of Wheat Ridae Monev Purchase Pension Plan for Desiqnated Police Department Employees (the "Plan") in the form of the ICMA RC Governmental Money Purchase Plan and Trust. This Plan is an amendment and restatement of an existing defined contribution money purchase plan. x Yes No If yes, please specify the name of the defined contribution money purchase plan which this Plan hereby amends and restates: The Citv of Wheat Ridae Money Purchase Pension Plan for Desianated Police Deoartment Emplovees I. Employer: The Citv of Wheat Ridae II. The Effective Date of the Plan shall be the first day of the Plan Year during which the Employer adopts the Plan, unless an alternate Effective Date is hereby specified: Januarv 1. 1997 III. Plan Year will mean: (x) The twelve (12) consecutive month period which coincides with the limitation year. (See Section 5.03(g) of the Plan.) ( ) The twelve (12) consecutive month period commencing on and each anniversary thereof. IV. Normal Retirement Age shall be age 55 (not to exceed age 65). I . ATTACHMENT 1 V. ELIGIBILITY REQUIREMENTS: 1. The following group or groups of Employees are eligible to participate in the Plan: All Employees All Full-Time Employees Salaried Employees Non-union Employees Management Employees Public Safety Employees General Employees x Other (specify below) Anv oerson who is a full-time oaid sworn oolice officer emoloved bv the oolice deoartment of the Emolover. as determined bv the Emolover under the Emolover's standard oersonnel oolicies and oractices as may from time to time be in effect. The group specified must correspond to a group of the same designation that is defined in the statutes, ordinances, rules, regulations, personnel manuals or other material in effect in the state or locality of the Employer. 2. The Employer hereby waives or reduces the requirement of a twelve (12) month Period of Service for participation. The required Period of Service shall be N/A (write N/A if an Employee is eligible to participate upon employment). If this waiver or reduction is elected, it shall apply to all Employees within the Covered Employment Classification. 3. A minimum age requirement is hereby specified for eligibility to participate. The minimum age requirement is N/A (not to exceed age 21. Write N/A if no minimum age is declared.) VI. CONTRIBUTION PROVISIONS 1. The Employer shall contribute as follows (choose one): (x) Fixed Employer Contributions With Or Without Mandatory Participant Contributions. The Employer shall contribute on behalf of each Participant 10 % of Earnings or $-=-. for the Plan Year (subject to the limitations of Article V of the Plan). A Participant is required to contribute (subject to the limitations of Article V of the Plan) (i) 10 % of Earnings, (ii) $ - I or 2 (iii) a whole percentage of Earnings, as designated by the Employee in accordance with guidelines and procedures established by the Employer for the Plan Year as a condition of participation in the Plan. (Write "0" if no contribution is required.) If Participant Contributions are required under this option, a Participant shall not have the right to discontinue or vary the rate of such contributions after becoming a Plan Participant. Effective for Plan Years beginning on or after January 1 I 2006, the Employer hereby elects to "pick up" the Mandatory/Required Participant Contribution. x Yes No [Note to Employer: Neither an IRS advisory letter nor a determination letter issued to an adopting Employer is a ruling by the Internal Revenue Service that Participant contributions that are picked up by the Employer are not includable in the Participant's gross income for federal income tax purposes. The Employer may seek such a ruling. Picked up contributions are excludable from the Participant's gross income under section 414(h )(2) of the Internal Revenue Code of 1986 only jf they meet the requirements of Rev. Ruls. 81-35 and 81-36, 1981-1 C.B. 255, and 87-10, 1987-1 C.B. 136. Those requirements are (1) that the Employer must specify that the contributions, although designated as employee contributions, are being paid by the Employer in lieu of contributions by the employee; (2) the employee must not have the option of receiving the contributed amounts directly instead of having them paid by the Employer to the plan; and (3) the required specification of designated employee contributions must be completed before the period to which such contributions relate.] ( ) Fixed Employer Match of Participant Contributions. The Employer shall contribute on behalf of each Participant % of Earnings for the Plan Year (subject to the limitations of Article V of the Plan) for each Plan Year that such Participant has contributed % of Earnings or $ . Under this option, there is a single, fixed rate of Employer contributions, but a Participant may decline to make the required Participant contributions in any Plan Year, in which case no Employer contribution will be made on the Participant's behalf in that Plan Year. ( ) Variable Employer Match Of Participant Contributions. 3 The Employer shall contribute on behalf of each Participant an amount determined as follows (subject to the limitations of Article V of the Plan): % of the contributions made by the Participant for the Plan Year (not including Participant contributions exceeding % of Earnings or $ ); PLUS % of the contributions made by the Participant for the Plan Year in excess of those included in the above paragraph (but not including Participant contributions exceeding in the aggregate % of Earnings or $ ). Employer Contributions on behalf of a Participant for a Plan Year shall not exceed $ or % of Earnings, whichever is more or less. 2. Effective for Plan Years prior to January 1, 2006, each Participant may make a voluntary (unmatched), after-tax contribution, subject to the limitations of Section 4.05 and Article V of the Plan. x Yes No Effective for Plan Years beginning January 1, 2006, voluntary (unmatched), after-tax contributions are not permitted. 3. Employer contributions and Participant contributions shall be contributed to the Trust in accordance with the following payment schedule: On a oavroll bv oavroll basis. VII. EARNINGS Earnings, as defined under Section 2.09 of the Plan, shall include: (a) Overtime Yes x No (b) Bonuses Yes x No VIII. LIMITATION ON ALLOCATIONS 4 If the Employer maintains or ever maintained another qualified plan in which any Participant in this Plan is (or was) a participant or could possibly become a participant, the Employer hereby agrees to limit contributions to all such plans as provided herein, if necessary in order to avoid excess contributions (as described in Sections 5.02 of the Plan). 1. If the Participant is covered under another qualified defined contribution plan maintained by the Employer, the provisions of Section 5.02(a) through (f) of the Plan will apply unless another method has been indicated below. ( ) Other Method. (Provide the method under which the plans will limit total Annual Additions to the Maximum Permissible Amount, and will properly reduce any excess amounts, in a manner that precludes Employer discretion.) 2. The limitation year is the following 12-consecutive month period: the twelve (12) consecutive month period endina everv December 1. IX. VESTING PROVISIONS The Employer hereby specifies the following vesting schedule, subject to (1) the minimum vesting requirements as noted and (2) the concurrence of the Plan Administrator. Years of Service Completed Percent Vestina Zero One Two Three Four Five Six Seven Eight Nine Ten o % o % o % 20 % 40 % 60 % 80 % 100 % % % % X, Loans are permitted under the Plan, as provided in Article XIII: Yes x No 5 XI. The Employer hereby attests that it is a unit of state or local government or an agency or instrumentality of one or more units of state or local government. XII. The Plan Administrator hereby agrees to inform the Employer of any amendments to the Plan made pursuant to Section 14.05 of the Plan or of the discontinuance or abandonment of the Plan. 6 XIII. The Employer hereby appoints the ICMA RC as the Plan Administrator pursuant to the terms and conditions of the ICMA RC GOVERNMENTAL MONEY PURCHASE PLAN & TRUST. The Employer hereby agrees to the provisions of the Plan and Trust. XIV, The Employer hereby acknowledges it understands that failure to properly fill out this Adoption Agreement may result in disqualification of the Plan. XV. An adopting Employer may rely on an advisory letter issued by the Internal Revenue Service as evidence that the Plan is qualified under section 401 of the Internal Revenue Code. In Witness Whereof, the Employer hereby causes this Agreement to be executed on this day of , 2006. EMPLOYER leMA RC By: By: Title: Title: Attest: Attest: 3627725JDOC 7 \\GLGPRIMICLlENTSIII 07010 IIMPP AA4.DOC CMk~C' Building Retirement Security GOVERNMENTAL MONEY PURCHASE PLAN & TRUST I. PURPOSE The Employer hereby adopts this Plan and Trust to provide funds for its Employees' retirement, and to provide funds for their Beneficiaries in the event of death. The benefits provided in this Plan shall be paid from the Trust. The Plan and the Trust forming a part hereof are adopted and shall be maintained for the exclusive benefit of eligible Employees and their Beneficiaries. Except as provided in Sections 4.10 and 14.03, no part of the corpus or income of the Trust shall revert to the Employer or be used for or diverted to purposes other than the exclusive benefit of Participants and their Beneficiaries. II. DEFINITIONS 2.01 Account. A separate record which shall be established and maintained under the Trust for each Participant, and which shall include all Participant subaccounts created pursuant to Article I~ plus any Participant Loan Account created pursuant to Section 13.03. Each subaccount created pursuant to Article IV shall include any earnings of the Trust and adjustments for withdrawals, and realized and unrealized gains and losses allocable thereto. The term "Account" may also refer to any of such separate subaccounts. 2.02 Accounting Date. Each day that the New York Stock Exchange is open for trading, and such other dates as may be determined by the Plan Administrator, as provided in Section 6.06 for valuing the Trust's assets. 2.03 Adoption Agreement. The separate agreement executed by the Employer through which the Employer adopts the Plan and elects among the various alternatives provided thereunder, and which upon execution, becomes an integral part of the Plan. 2.04 Beneficiary. The person or persons (including a trust) designated by the Participant who shall receive any benefits payable hereunder in the event of the Participant's death. The designation of such Beneficiary shall be in writing to the Plan Administrator. A Participant may designate primary and contingent Beneficiaries. Where no designated Beneficiary survives the Participant or no Beneficiary is otherwise designated by the Participant, the Participant's Beneficiary shall be his/her surviving spouse or, if none, his/her estate. Notwithstanding the foregoing, the Beneficiary designation is subject to the requirements of Article XII unless the Employer elects otherwise in the Adoption Agreement. Notwithstanding the foregoing, where elected by the Employer in the Adoption Agreement (the "QJSA Election"), the Beneficiary designation is subject to the requirements of Article XVII. Notwithstanding the foregoing, to the extent permitted by the Employer, a Beneficiary receiving required minimum distributions in accordance with Article X and not in a benefit form elected under Article XI or XII, may designate a Beneficiary to receive the required minimum distributions that would have otherwise been payable to the initial Beneficiary but for his or her death. 2.05 Break in Service. A Period of Severance of at least twelve (12) consecutive months. In the case of an individual who is absent from work for maternity or paternity reasons, the twelve (12) consecutive month period beginning on the first anniversary of the first date of such absence shall not constitute a Break in Service. For purposes of this paragraph, an absence from work for maternity or paternity reasons means an absence (1) by reason of the pregnancy of the individual, (2) by reason of the birth of a child of the individual, (3) by reason of the placement of a child with the individual in connection with the adoption of such child by such individual, or (4) for purposes of caring for such child for a period beginning immediately following such birth or placement. 1 2.06 Code. The Internal Revenue Code of 1986, as amended from time to time. 2.07 Covered Employment Classification. The group or groups of Employees eligible to make and/or have contributions to this Plan made on their behalf, as specified by the Employer in the Adoption Agreement. 2.08 Disability. A physical or mental impairment which is of such permanence and degree that, as determined by the Employer, a Participant is unable because of such impairment to perform any substantial gainful activity for which he/she is suited by virtue of his/her experience, training, or education and that has lasted, or can be expected to last, for a continuous period of not less than twelve (12) months, or can be expected to result in death. The permanence and degree of such impairment shall be supported by medical evidence. If the Employer maintains a long-term disability plan, the definition of Disability shall be the same as the definition of disability in the long-term disability plan. 2.09 Earnings. (a) General Rule. Earnings, which form the basis for computing Employer Contributions, are all of each Participant's W-2 earnings which are actually paid co the Participant during the Plan Year, plus any contributions made pursuant to a salary reduction agreement which are not includible in the gross income of the Employee under section 125, 402(e)(3), 402(h)(1)(B), 403(b), 414(h)(2), 457(b), or, effective January 1,2001, 132(f)(4) of the Code. Earnings shall include any pre-tax contributions (excluding direct employer contributions) to an integral part trust of the Employer providing retiree health care benefits. Earnings shall also include any other earnings as defined and elected by the Employer in the Adoption Agreement. Unless the Employer elects otherwise in the Adoption Agreement, Earnings shall exclude overtime compensation and bonuses. (b) Limitation on Earnings. For any Plan Year beginning after December 31, 2001, the annual Earnings of each Participant taken into account in determining allocations shall not exceed $200,000, as adjusted for cosr-of-living increases in accordance with section 401 (a)(17)(B) of the Code. Annual Earnings means Earnings during the Plan Year or such other consecutive 12-month period over which Earnings is otherwise determined under the Plan (the determination period). The cost-of-Iiving adjustment in effect for a calendar year applies to annual Earnings for the determination period that begins with or within such calendar year. If a determination period consists of fewer than twelve (12) months, the annual Earnings limit is an amount equal to the otherwise applicable annual Earnings limit multiplied by the fraction, the numerator of which is the number of months in the short Plan Year and the denominator of which is twelve (12). If Earnings for any prior determination period are taken into account in determining a Participant's allocations for the current Plan Year, the Earnings for such prior year are subject to the applicable annual Earnings limit in effect for that prior year. (c) Limitations for Governmental Plans. In the case of an eligible participant in a governmental plan (within the meaning of section 414(d) of the Code), the dollar limitation shall not apply to the extent the Earnings which are allowed to be taken into account under the Plan would be reduced below the amount which was allowed to be taken into account under the Plan as in effect on July 1, 1993, as adjusted for increases in the cost-of-living in accordance with section 401 (a) (17)(B) of the Code. For purposes of this Section, an eligible participant is an individual who first became a Participant in the Plan during a Plan Year beginning before the first Plan Year beginning after December 31, 1993. 2.10 Effective Date. The first day of the Plan Year during which the Employer adopts the Plan, unless the Employer elects in the Adoption Agreement an alternate date as the Effective Date of the Plan. 2.11 Employee. Any individual who has applied for and been hired in an employment position and who is employed by the Employer as a common law employee; provided, however, that Employee shall not include any individual who is not so recorded on the payroll records of the Employer, including any such person who is 2 subsequently reclassified by a court of law or regulatory body as a common law employee of the Employer. For purposes of clarification only and not to imply that the preceding sentence would otherwise cover such person, the term Employee does not include any individual who performs services for the Employer as an independent contractor, or under any other non-employee. 2.12 Employer. The unit of state or local government or an agency or instrumentality of one (1) or more states or local governments that executes the Adoption Agreement. 2.13 Hour of Service. Each hour for which an Employee is paid or entitled to payment for the performance of du- ties for the Employer. 2.14 Nonforfeitable Interest. The nonforfeitable interest of the Participant or his/her Beneficiary (whichever is applicable) is that percentage of his/her Employer Contribution Account balance, which has vested pursuant to Article VII. A Participant shall, at all times, have a one hundred percent (100%) Nonforfeitable Interest in his/ her Participant Contribution, Rollover, and Voluntary Contribution Accounts. 2.15 Normal Retirement Age. The age which the Employer specifies in the Adoption Agreement. If the Employer enforces a mandatory retirement age, the Normal Retirement Age is the lesser of that mandatory age or the age specified in the Adoption Agreement. 2.16 Participant. An Employee or former Employee for whom contributions have been made under the Plan and who has not yet received all of the payments of benefits to which he/she is entitled under the Plan. A Participant is treated as benefiting under the Plan for any Plan Year during which the participant received or is deemed to receive an allocation in accordance with Treas. Reg. section 1.410(b)-3(a). 2.17 Period of Service. For purposes of determining an Employee's initial or continued eligibility to participate in the Plan or the Nonforfeitable Interest in the Participant's Account balance derived from Employer Contributions, an Employee will receive credit for the aggregate of all time period(s) commencing with the Employee's first day of employment or reemployment and ending on the date a Break in Service begins. The first day of employment or reemployment is the first day the Employee performs an Hour of Service. An Employee will also receive credit for any Pedod of Severance ofless than twelve (12) consecutive months. Fractional periods of a year will be expressed in terms of days. Notwithstanding anything to the contrary herein, if the Plan is an amendment and restatement of a plan that previously calculated service under the hours of service method, service shall be credited in a manner that is at least as generous as that provided under Treas. Regs. section 1.410(a)-7(g). 2.18 Period of Severance. A continuous period of time during which the Employee is not employed by the Employer. Such period begins on the date the Employee retires, quits or is discharged, or if earlier, the twelve (12) month anniversary of the date on which the Employee was otherwise first absent from service. 2.19 Plan. This Plan, as established by the Employer, including any elected provisions pursuant to the Adoption Agreement. 2.20 Plan Administrator. The person(s) or entity named to carry out certain nondiscretionary administrative functions under the Plan, as hereinafter described, which is the ICMA Retirement Corporation or any successor Plan Administrator. 2.21 Plan Year. The twelve (12) consecutive month period designated by the Employer in the Adoption Agreement. 2.22 Trust. The Trust created under Article VI of the Plan which shall consist of all of the assets of the Plan derived from Employer and Participant contributions under the Plan, plus any income and gains thereon, less any losses, expenses and distributions to Participants and Beneficiaries. 3 III. ELIGIBILITY 3.01 Service. Except as provided in Sections 3.02 and 3.03 of the Plan, an Employee within the Covered Employment Classification who has completed a twelve (12) month Period of Service shall be eligible to participate in the Plan at the beginning of the payroll period next commencing thereafter. The Employer may elect in the Adoption Agreement to waive or reduce the twelve (12) month Period of Service. If the Employer maintains the plan of a predecessor employer, service with such employer shall be treated as Service for the Employer. 3.02 Age. The Employer may designate a minimum age requirement, nor to exceed age twenty-one (21), for participation. Such age, if any, shall be declared in the Adoption Agreement. 3.03 Return to Covered Employment Classification. In the event a Participant is no longer a member of Covered Employment Classification and becomes ineligible to make contributions and/or have contributions made on his/her behalf, such Employee will become eligible for contributions immediately upon returning to a Covered Employment Classification. If such Participant incurs a Break in Service, eligibility will be determined under the Break in Service rules of the Plan. In the event an Employee who is not a member of a Covered Employment Classification becomes a member, such Employee will be eligible to participate immediately if such Employee has satisfied the minimum age and service requirements and would have otherwise previously become a Participant. 3.04 Service Before a Break in Service. NI Periods of Service with the Employer are counted toward eligibility, including Periods of Service before a Break in Service. Iv. CONTRIBUTIONS 4.01 Employer Contributions. For each Plan Year, the Employer will contribute to the Trust an amount as specified in the Adoption Agreement. The Employer's full contribution for any Plan Year shall be due and paid not later than thirty (30) working days after the close of the Plan Year. Each Participant will share in Employer Contributions for the period beginning on the date the Participant commences participation under the Plan and ending on the date on which such Employee severs employment with the Employer or is no longer a member of a Covered Employment Classification, and such contributions shall be accounted for separately in his/her Employer Contribution Account. Notwithstanding anything to the contrary herein, if so elected by the Employer in the Adoption Agreement, an Employee shall be required to make contributions as provided pursuant to Section 4.03 or 4.04 in order to be eligible for Employer Contributions to be made on his/her behalf to the Plan. 4.02 Forfeitures. All amounts forfeited by terminated Participants, pursuant to Section 7.06, shall be allocated to a suspense account and used to reduce dollar for dollar Employer Contributions otherwise required under the Plan for the current Plan Year and succeeding Plan Years, if necessary. Forfeitures may first be used to pay the reasonable administrative expenses of the Plan, with any remainder being applied to reduce Employer Contributions. 4.03 Mandatory Participant Contributions. If the Employer so elects in the Adoption Agreement, each eligible Employee shall make contributions at a rate prescribed by the Employer or at any of a range of specified rates, as set forth by the Employer in the Adoption Agreement, as a requirement for his/her participation in the Plan. Once an eligible Employee becomes a Participant, he/she shall not thereafter have the right to discontinue or vary the rate of such Mandatory Participant Contributions. Such contributions shall be accounted for separately in the Participant Contribution Account. Such Account shall be at all times nonforfeitable by the Participant. 4 If the Employer so elects in the Adoption Agreement, the Mandatory Participant Contributions shall be "picked up" by the Employer in accordance with Code section 414(h)(2). Any contribution picked-up under this Section shall be treated as an employer contribution in determining the tax treatment under the Code, and shall not be included as gross income of the Panicipant until it is distributed. 4.04 Employer Matching Contributions of Voluntary Participant Contributions. If the Employer so elects in the Adoption Agreement, Employer Matching Contributions shall be made on behalf of an eligible Employee for a Plan Year only if the Employee agrees to make Voluntary Participant Contributions for that Plan Year. The rate of Employer Contributions shall, to the extent specified in the Adoption Agreement, be based upon the rate at which Voluntary Participant Contributions are made for that Plan Year. Employer Matching Contributions shall be accounted for separately in the Employer Contribution Account. 4.05 Voluntary Participant Contributions. If the Employer so elects in the Adoption Agreement, an eligible Employee may make after-tax voluntary (unmatched) contributions under the Plan for any Plan Year in any amount up to twenty five percent (25%) of his/her Earnings for such Plan Year. Matched and unmatched contributions shall be accounted for separately in the Participant's Voluntary Contribution Account. Such Account shall be at all times nonforfeitable by the Participant. 4.06 Deductible Employee Contributions. The Plan will not accept deductible employee contributions which are made for a taxable year beginning after December 31, 1986. Contributions made prior to that date will be maintained in a Deductible Employee Contribution Account. The Account will share in the gains and losses under the Plan in the same manner as described in Section 6.06 of the Plan. Such Account shall be at all times nonforfeitable by the Participant. 4.07 Military Service Contributions. Notwithstanding any provision of the Plan to the contrary, effective December 12, 1994, contributions, benefits and service credit with respect to qualified military service will be provided in accordance with section 414( u) of the Code. Effective December 12, 1994, if the Employer has elected in the Adoption Agreement to make loans available to Participants, loan repayments will be suspended under the Plan as permitted under section 414( u) (4) of the Code. 4.08 Changes in Participant Election. A Participant may elect to change his/her rate of Voluntary Participant Contributions at any time or during an election period as designated by the Employer. A Participant may discontinue such contributions at any time or during an election period as designated by the Employer. 4.09 Portability of Benefits. (a) Unless otherwise elected by the Employer in the Adoption Agreement, the Plan will accept Participant (which shall include, for purposes of this subsection, an Employee within the Covered Employment Classification whether or not he/she has satisfied the minimum age and service requirements of Article III,) rollover contributions and/or direct rollovers of distributions (including after-tax contributions) made after December 31, 2001 that are eligible for rollover in accordance with Section 402(c), 403(a)(4), 403(b)(8), 408 (d) (3) (A)(ii), or 457(e)(16) of the Code, from all of the following types of plans: (1) A qualified plan described in Section 401(a) or 403(a) of the Code; (2) An annuity contract described in Section 403(b) of the Code; (3) An eligible plan under Section 457(b) of the Code which is maintained by a state, political subdivision of a state, or any agency or instrumentality of a state or a political subdivision of a state; and 5 (4) An individual retirement account or annuity described in Section 408(a) or 408(b) of the Code (including SEPs, and SIMPLE IRAs after two years of participating in the SIMPLE IRA). (b) Notwithstanding the foregoing, the Employer may reject the rollover contribution if it determines, in its discretion, that the form and nature of the distribution from the other plan does not satisfY the applicable requirements under the Code to make the transfer or rollover a nontaxable transaction to the Participant; (c) For indirect rollover contributions, the amount distributed from such plan must be rolled over to this Plan no later than the sixtieth (60th) day after the distribution was made from the plan, unless otherwise waived by the IRS pursuant to Section 402(c)(3) of the Code. (d) The amount transferred shall be deposited in the Trust and shall be credited to a Rollover Account. Such Account shall be one hundred percent (100%) vested in the Participant. (e) The Plan will accept accumulated deductible employee contributions as defined in section 72(0)(5) of the Code that were distributed from a qualified retirement plan and transferred (rolled over) pursuant to section 402(c), 403(a)(4), 403(b)(8), or 408(d)(3) of the Code. Notwithstanding the above, this transferred (rolled over) amount shall be deposited to the Trust and shall be credited to a Deductible Employee Contributions Account. Such Account shall be one-hundred percent (100%) vested in the Participant, (f) A Participant may, upon approval by the Employer and the Plan Administrator, transfer his/her interest in another plan maintained by the Employer that is qualified under section 401 (a) of the Code to this Plan, provided the transfer is effected through a one-time irrevocable written election made by the Participant. The amount transferred shall be deposited in the Trust and shall be credited to sources that maintain the same attributes as the plan from which they are transferred. Such transfer shall not reduce the accrued years or service credited to the Participant for purposes of vesting or eligibility for any Plan benefits or features. 4.10 Return of Employer Contributions. Any contribution made by the Employer because of a mistake of fact must be returned to the Employer within one year of the date of contribution. v: LIMITATION ON ALLOCATIONS 5.01 Participants Only in This Plan. (a) If the Participant does not participate in, and has never participated in another qualified plan or a welfare benefit fund, as defined in section 419( e) of the Code, maintained by the Employer, or an individual medical account, as defined by section 415(1)(2) of the Code, maintained by the Employer, which provides an Annual Addition, the amount of Annual Additions which may be credited to the Participant's Account for any Limitation Year will not exceed the lesser of the Maximum Permissible Amount or any other limitation contained in this Plan. If the Employer Contribution that would otherwise be contributed or allocated to the Participant's Account would cause the Annual Additions for the Limitation Year to exceed the Maximum Permissible Amount, the amount contributed or al- located will be reduced so that the Annual Additions for the Limitation Year will equal the Maximum Permissible Amount. (b) Prior to determining the Participant's actual Compensation for the Limitation Year, the Employer may determine the Maximum Permissible Amount for a Participant on the basis of a reasonable estimation of the Participant's Compensation for the Limitation Year, uniformly determined for all Participants similarly situated. 6 (c) As soon as is administratively feasible after the end of the Limitation Year, the Maximum Permissible Amount for the Limitation Year will be determined on the basis of the Participant's actual Compensa- tion for the Limitation Year. (d) If, as a result of an inadvertent reasonable error in estimating the Maximum Permissible Amount for a Participant in accordance with Subsection (b) or pursuant to Subsection (c) or as a result of the allocation of forfeitures, there is an Excess Amount, the excess will be disposed of as follows: (1) Any Mandatory Participant Contributions that are not "picked up" by the Employer or Voluntary Participant Contributions, to the extent they would reduce the Excess Amount, will be returned to the Participant; (2) If after the application of paragraph (1) an Excess Amount still exists, and the Participant is covered by the Plan at the end of the Limitation Year, the Excess Amount in the Partici- pant's Account will be used to reduce Employer Contributions (including any allocation of forfeitures) for such Participant in the next Limitation Year, and each succeeding Limitation Year if necessary; (3) If after the application of paragraph (1) an Excess Amount still exists, and the Participant is not covered by the Plan at the end of the Limitation Year, the Excess Amount will be held unallocated in a suspense account. The suspense account will be applied to reduce future Employer Contributions (including allocation of any forfeitures) for all remaining Participants in the next Limitation Year, and each succeeding Limitation Year if necessary; (4) If a suspense account is in existence at any time during a particular Limitation Year, all amounts in the suspense account must be allocated and reallocated to Participants' accounts before any Employer or any Employee contributions may be made to the Plan for that Limita- tion Year. Excess Amounts in a suspense account may not be distributed to Participants or former Participants. 5.02 Participants in Another Defined Contribution Plan. (a) Unless the Employer provides other limitations in the Adoption Agreement, this Section applies if, in addition to this Plan, the Participant is covered under another qualified defined contribution plan maintained by the Employer, or a welfare benefit fund, as defined in section 419(e) of the Code, maintained by the Employer, or an individual medical account, as defined by section 415 (1) (2) of the Code, maintained by the Employer, which provides an Annual Addition, during any Limitation Year. The Annual Additions which may be credited to a Participant's Account under this Plan for any such Limitation Year will not exceed the Maximum Permissible Amount reduced by the Annual Additions credited to a Participant's Account under the other plans and welfare benefit funds for the same Limitation Year. If the Annual Additions with respect to the Participant under other defined contribution plans and welfare benefit funds maintained by the Employer are less than the Maximum Permissible Amount and the Employer contribution that would otherwise be contributed or allocated to the Participant's Account under this Plan would cause the Annual Additions for the Limitation Year to exceed this limitation, the amount contributed or allocated will be reduced so that the Annual Additions under all such plans and funds for the Limitation Year will equal the Maximum Permissible Amount. If the Annual Additions with respect to the Participant under such other defined contribu- tion plans and welfare benefit funds in the aggregate are equal to or greater than the Maximum Per- missible Amount, no amount will be contributed or allocated to the Participant's Account under this Plan for the Limitation Year. (b) Prior to determining the Participant's actual Compensation for the Limitation Year, the Employer may determine the Maximum Permissible Amount for a Participant in the manner described in Section 5.01(b). 7 (c) As soon as is administratively feasible after the end of the Limitation Year, the Maximum Permissible Amount for the Limitation Year will be determined on the basis of the Participant's actual Compensa- tion for the Limitation Year. (d) If, pursuant to Subsection (c) or as a result of the allocation of forfeitures, a Participant's Annual Additions under this Plan and such other plans would result in an Excess Amount for a Limitation Year, the Excess Amount will be deemed to consist of the Annual Additions last allocated, except that Annual Additions attributable to a welfare benefit fund or individual medical account will be deemed to have been allocated first regardless of the actual allocation date. (e) If an Excess Amount was allocated to a Participant on an allocation date of this Plan which coincides with an allocation date of another plan, the Excess Amount attributed to this Plan will be the product of, (I) The total Excess Amount allocated as of such date, multiplied by the ratio of: (i) the Annual Additions allocated to the Participant for the Limitation Year as of such date under this Plan to (ii) the total Annual Additions allocated to the Participant for the Limitation Year as of such date under this and all the other prototype qualified defined contribution plans. (f) Any Excess Amount attributed to this Plan will be disposed in the manner described in Section 5.0I(d). 5.03 Definitions. For the purposes of this Article, the following definitions shall apply: (a) Annual Additions: The sum of the following amounts credited to a Participant's account for the Limita- tion Year: (1) Employer Contributions; (2) Forfeitures; (3) Employee contributions; and (4) Allocations under a simplified employee pension. Amounts allocated, after March 31, 1984, to an individual medical account, as defined in section 415(1)(2) of the Code, which is part of a pension or annuity plan maintained by the Employer, are treated as Annual Additions to a defined contribution plan. For this purpose, any Excess Amount applied under Sections 5.0 I (d) or 5.02(f) in the Limitation Year to reduce Employer Contriburions will be considered Annual Additions for such Limitation Year. (b) Compensation: A Participant's wages, salaries, and fees for professional services and other amounts received (without regard to whether an amount is paid in cash) for personal services actually rendered in the course of employment with the Employer maintaining the Plan to the extent that the amounts are includible in gross income {including, but not limited to, bonuses, fringe benefits, and reimbursements or other expense allowances under a non accountable plan (as described in Treas. Reg. section 1.62-2(c))), and excluding the following: (1) Employer Contributions to a plan of deferred compensation which are not includible in the Employee's gross income for the taxable year in which contributed, or Employer Contributions 8 under a simplified employee pension plan to the extent such contributions are deductible by the Employee, or any distributions from a plan of deferred compensation; and (2) Other amounts which received special tax benefits, or contributions made by the Employer (whether or not under a salary reduction agreement) towards rhe purchase of an annuity contracr described in section 403(b) of the Code (whether or not the amounts are actually excludable from the gross income of the Employee). (3) Notwithstanding the above, Compensation shall include: (i) any elective deferrals (as defined in section 402(g)(3) of the Code), and (ii) any amount which is contributed or deferred by the Employer at the election of the Employee and which is not includible in the gross income of the Employee by reason of sections 125, 132(f)(4) or 457 of the Code. For purposes of applying the limitations of this Article, Compensation for a Limitation Year is the Compensation actually paid or made available during such year. (c) Defined Contribution Dollar Limitation: $40,000, as adjusted for increases in the cost-of-living in accordance with section 415 (d) of the Code. (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. Any Excess Amount shall include allocable income. The income allocable to an Excess Amount is equal to the sum of allocable gain or loss for the Plan Year and the allocable gain or loss for the period between the end of the Plan Year and the date of distribution (the gap period). The Plan may use any reasonable method for computing the income allocable to an Excess Amount, provided that the method is used consistently for all Participants and for all corrective distributions under the Plan for the Plan Year, and is used by the Plan for allocating income to Participants' Accounts. (f) Limitation Year: A calendar year, or the twelve (12) consecutive month period elected by the Employer in the Adoption Agreement. All qualified plans maintained by the Employer must use the same Limitation Year. If the Limitation Year is amended to a different twelve (12) consecutive month period, the new Limitation Year must begin on a date within the Limitation Year in which the amend- ment is made. (g) Maximum Permissible Amount: The maximum Annual Addition that may be contributed or allocated to a Participant's Account under the Plan for any Limitation Year shall not exceed the lesser of: (1) The Defined Contribution Dollar Limitation, or (2) One hundred percent (100%) (25% for Limitation Years before January 1, 2002) of the Participant's Compensation for the Limitation Year. The compensation limit referred to in (2) 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. 9 If a shon Limitation Year is created because of an amendment changing the Limitation Year to a differ- ent twelve (12) consecutive month period, the Maximum Permissible Amount will not exceed the Defined Contribution Dollar Limitation multiplied by the following fraction: Number of months in the short Limitation Year / 12 VI. TRUST AND INVESTMENT OF ACCOUNTS 6.01 Trust. A Trust is hereby created to hold all of the assets of the Plan for the exclusive benefit of Participants and Beneficiaries, except that expenses and taxes may be paid from the Trust as provided in Section 6.03. The trustee shall be the Employer or such other person which agrees to act in that capacity hereunder. 6.02 Investment Powers. The trustee or the Plan Administrator, acting as agent for the trustee, shall have the powers listed in this Section with respect to investment of Trust assets, except to the extent that the investment of Trust assets is controlled by Participants, pursuant to Section 13.03. (a) To invest and reinvest the Trust without distinction between principal and income in common or preferred stocks, shares of regulated investment companies and other mutual funds, bonds, notes, debentures, mortgages, certificates of deposit, contracts with insurance companies including bur not limited to insurance, individual or group annuity, deposit administration, guaranteed interest contracts, and deposits at reasonable rates of interest at banking institutions including but not limited to savings accounts and certificates of deposit. Assets of the Trust may be invested in securities that involve a higher degree of risk than investments that have demonstrated their investment performance over an extended period of time. (b) To invest and reinvest all or any part of the assets of the Trust in any common, collective or com- mingled trust fund that is maintained by a bank or other institution and that is available to Employee plans qualified under section 401 of the Code, or any successor provisions thereto, and during the period of time that an investment through any such medium shall exist, to the extent of participation of the Plan, the declaration of trust of such common, collective, or commingled trust fund shall constitute a part of this Plan. (c) To invest and reinvest all or any part of the assets of the Trust in any group annuity, deposit administration or guaranteed interest contract issued by an insurance company or other financial institution on a commingled or collective basis with the assets of any other plan or trust qualified under section 40 I (a) of the Code or any other plan described in section 40 I (a)(24) of the Code, and such contract may be held or issued in the name of the Plan Administrator, or such custodian as the Plan Administrator may appoint, as agent and nominee for the Employer. During the period that an investment through any such contract shall exist, to the extent of participation of the Plan, the terms and conditions of such contract shall constitute a part of the Plan. (d) To hold cash awaiting investment and to keep such portion of the Trust in cash or cash balances, without liability for interest, in such amounts as may from time to time be deemed to be reasonable and necessary to meet obligations under the Plan or otherwise to be in the best interests of the Plan. (e) To hold, to authorize the holding of, and to register any investment to the Trust in the name of the Plan, the Employer, or any nominee or agent of any of the foregoing, including the Plan Administrator, or in bearer form, to deposit or arrange for the deposit of securities in a qualified central depository even though, when so deposited, such securities may be merged and held in bulk in the name of the nominee of such depository with other securities deposited therein by any other person, and to organize corporations or trusts under the laws of any jurisdiction for the purpose of acquiring or holding title to any property for the Trust, all with or without the addition of words or other action to indicate that property is held in a fiduciary or representative capacity but the books and records of the Plan shall at all times show rhat all such investments are part of the Trust. 10 (f) Upon such terms as may be deemed advisable by the Employer or the Plan Administrator, as the case may be, for the protection of the interests of the Plan or for the preservation of the value of an invest- ment, to exercise and enforce by suit for legal or equitable remedies or by other action, or to waive any right or claim on behalf of the Plan or any default in any obligation owing to the Plan, to renew, extend the time for payment of, agree to a reduction in the rate of interest on, or agree to any other modification or change in the terms of any obligation owing to the Plan, to settle, compromise, adjust, or submit to arbitration any claim or right in favor of or against the Plan, to exercise and enforce any and all rights of foreclosure, bid for property in foreclosure, and take a deed in lieu of foreclosure with or without paying consideration therefor, to commence or defend suits or other legal proceedings whenever any interest of the Plan requires it, and to represent the Plan in all suits or legal proceedings in any court oflaw or equity or before any body or tribunal. (g) To employ suitable consultants, depositories, agents, and legal counsel on behalf of the Plan. (h) To open and maintain any bank account or accounts in the name of the Plan, the Employer, or any nominee or agent of the foregoing, including the Plan Administrator, in any bank or banks. (i) To do any and all other acts that may be deemed necessary to carry out any of the powers set forth herein. 6.03 Taxes and Expenses. All taxes of any and all kinds whatsoever that may be levied or assessed under existing or future laws upon, or in respect to the Trust, or the income thereof, and all commissions or acquisitions or dispositions of securities and similar expenses of investment and reinvestment of the Trust, shall be paid from the Trust. Such reasonable compensation of the Plan Administrator, as may be agreed upon from time to time by the Employer and the Plan Administrator, and reimbursement for reasonable expenses incurred by the Plan Administrator in performance of its duties hereunder (including but not limited to fees for legal, accounting, investment and custodial services) shall also be paid from the Trust. However, no person who is a fiduciary within the meaning of section 3(21)(A) ofERlSA and regulations promulgated thereunder, and who receives full-time pay from the Employer may receive compensation from the Trust, except for expenses properly and actually incurred. 6.04 Payment of Benefits. The payment of benefits from the Trust in accordance with the terms of the Plan may be made by the Plan Administrator, or by any custodian or other person so authorized by the Employer to make such disbursement. Benefits under this Plan shall be paid only if the Plan Administrator, custodian or other person decides in his/her discretion that the applicant is entitled to them. The Plan Administrator, custodian or other person shall not be liable with respect to any distribution of Trust assets made at the direction of the Employer. 6.05 Investment Funds. In accordance with uniform and nondiscriminatory rules established by the Employer and the Plan Administrator, the Participant may direct his/her Accounts to be invested in one (1) or more investment funds available under the Plan; provided, however, that the Participant's investment directions shall not violate any investment restrictions established by the Employer and shall not include any investment in collectibles, as defined in section 408(m) of the Code. 6.06 Valuation of Accounts. As of each Accounting Date, the Plan assets held in each investment fund offered shall be valued at fair market value and the investment income and gains or losses for each fund shall be determined. Such investment income and gains or losses shall be allocated proportionately among all Account balances on a fund-by-fund basis. The allocation shall be in the proportion that each such Account balance as of the immediately preceding Accounting Date bears to the total of all such Account balances as of that Accounting Date. For purposes of this Article, all Account balances include the Account balances of all Participants and Beneficiaries. 6.07 Participant Loan Accounts. Participant Loan Accounts shall be invested in accordance with Section 13.03 of the Plan. Such Accounts shall not share in any investment income and gains or losses of the investment funds described in Section 6.05. 11 VII. VESTING 7.01 Vesting Schedule. The portion of a Participant's Account attributable to Mandatory Participant Contribu- tions and Voluntary Participant Contributions, and the earnings thereon, shall be at all times nonforfeitable by the Participant. A Participant shall have a Nonforfeitable Interest in the percentage ofhis/her Employer Contribution Account established under Section 4.01 and 4.04 determined pursuant to the schedule elected by the Employer in the Adoption Agreement. 7.02 Crediting Periods of Service. Except as provided in Section 7.03, all of an Employee's Periods of Service with the Employer are counted to determine the nonforfeitable percentage in the Employee's Account balance derived from Employer Contributions. If the Employer maintains the plan of a predecessor employer, service with such employer will be treated as service for the Employer. For purposes of determining years of service and Breaks in Service for the purposes of computing a Participant's nonforfeitable right to the Account balance derived from Employer Contributions, the twelve (12) consecutive month period will commence on the date the Employee first performs an hour of service and each subsequent twelve (12) consecutive month period will commence on the anniversary of such date. 7.03 Service After Break in Service. In the case of a Participant who has a Break in Service of at least five (5) years, all Periods of Service after such Breaks in Service will be disregarded for the purpose of determining the nonforfeitable percentage of the Employer-derived Account balance that accrued before such Break, but both pre-Break and post-Break service will count for the purposes of vesting the Employer-derived Account balance that accrues after such Break. Both Accounts will share in the earnings and losses of the fund. In the case of a Participant who does not have a Break in Service of at least five (5) years, both the pre-Break and post-Break service will count in vesting both the pre-Break and post-Break Employer-derived Account balance, In the case of a Participant who does not have any nonforfeitable right to the Account balance derived from Employer Contributions, years of service before a period of consecutive one (1) year Breaks in Service will not be taken into account in computing eligibility service if the number of consecutive one (1) year Breaks in Service in such period equals or exceeds the greater of five (5) or the aggregate number of years of service. Such aggregate number of years of service will not include any years of service disregarded under the preceding sentence by reason of prior Breaks in Service. If a Participant's years of service are disregarded pursuant to the preceding paragraph, such Participant will be treated as i1 new Employee for eligibility purposes. If a Participant's years of service may not be disregarded pursuant to the preceding paragraph, such Participant shall continue to participate in the Plan, or, if terminated, shall participate immediately upon reemployment. 7.04 Vesting Upon Normal Retirement Age. Notwithstanding Section 7.01 of the Plan, a Participant shall have a Nonforfeitable Interest in his/her entire Employer Contribution Account, to the extent that the balance of such Account has not previously been forfeited pursuant to Section 7.06 of the Plan, if he/she is employed on or after his/her Normal Retirement Age. 7.05 Vesting Upon Death or Disability. Notwithstanding Section 7.01 of the Plan, in the event of Disability or death, a Participant or his/her Beneficiary shall have a Nonforfeitable Interest in his/her entire Employer Contribution Account, to the extent that the balance of such Account has not previously been forfeited pursuant to Section 7.06 of the Plan. 7.06 Forfeitures. Except as provided in Sections 7.04 and 7.05 of the Plan or as otherwise provided in this Section 7.06, a Participant who separates from service prior to obtaining full vesting shall forfeit that percentage of his/her Employer Contribution Account balance which has not vested as of the date such Participant incurs a Break in Service of five (5) consecutive years or, if earlier, the date such Participant receives, or is deemed under 12 the provisions of Section 9.04 to have received, distribution of the entire Nonforfeitable Interest in his/her Employer Contribution Account. No forfeiture will occur solely as a result of a Participant's withdrawal of Employee Contributions. Forfeitures shall be allocated in the manner described in Section 4.02. 7.07 Reinstatement of Forfeitures. If the Participant returns to the employment of the Employer before incurring a Break in Service of five (5) consecutive years, any amounts forfeited pursuant to Section 7.06 shall be reinstated to the Participant's Employer Contribution Account on the date of repayment by the Participant of the amount distributed to such Participant from his/her Employer Contribution Account; provided, however, that if such Participant forfeited his/her Account balance by reason of a deemed distribution, pursuant to Section 9.04, such amounts shall be automatically restored upon the reemployment of such Participant. Such repayment must be made before the earlier of five (5) years after the first date on which the Participant is subsequently reemployed by the Employer, or the date the Participant incurs a Break in Service of five (5) consecutive years. VIII. BENEFITS CLAIM 8.01 Claim of Benefits. A Participant or Beneficiary shall notifY the Plan Administrator in writing of a claim of benefits under the Plan. The Plan Administrator shall take such steps as may be necessary to facilitate the payment of such benefits to the Participant or Beneficiary. 8.02 Appeal Procedure. If any claim for benefits is initially denied by the Plan Administrator, the claimant shall file the appeal with the Employer, whose decision shall be final, to the extent provided by Section 15.07. IX. COMMENCEMENT OF BENEFITS 9.01 Nonnal and Elective Commencement of Benefits. A Participant who retires, becomes Disabled or incurs a severance from employment (separation from service for Plan Years beginning before 2002) for any other reason may elect by written notice to the Plan Administrator to have his or her vested Account balance benefits commence on any date, provided that such distribution complies with Section 9.02. Such election must be made in writing during the ninety (90) day period ending on the date as of which benefit payments are to commence. A Participant's election shall be revocable and may be amended by the Participant. The failure of a Participant to consent to a distribution while a benefit is immediately distributable, within the meaning of section 9.02 of the Plan, shall be deemed to be an election to defer commencement of payment of any benefit. 9.02 Restrictions on Immediate Distributions. Notwithstanding anything to the contrary in Section 9.01 of the Plan, if the value of a Participant's vested Account balance is at least $1,000, and the Account balance is immediately distributable, the Participant must consent to any distribution of such Account balance. The Participant's consent shall be obtained in writing during the ninety (90) day period ending on the date as of which benefit payments are to commence. No consent shall be required, however, to the extent that a distribution is required to satisfY section 401 (a)(9) or 415 of the Code. The Plan Administrator shall notifY the Participant of the right to defer any distribution until the Participant's Account balance is no longer immediately distributable. Such notification shall include a general description of the material features, and an explanation of the relative values of, the optional forms of benefit available under the Plan in a manner that would satisfY section 417(a)(3) of the Code, and shall be provided no less than thirty (30) and no more than ninety (90) days before the date as of which benefit payments are to commence. However, distribution may commence less than thirty (30) days after the notice described in the preceding sentence is given, provided (i) the distribution is one to which sections 401 (a) (1 1) and 417 of the Code do not apply or, if the Q]SA Election is made by the Employer in the Adoption Agreement, the waiver requirements of Section 17.04(a) are metj (ij) the Plan Administrator clearly informs the Participant that the Participant 13 has a right to a period of at least thirty (30) days after receiving the notice to consider the decision of whether or not to elect a distribution (and, if applicable, a particular distribution option); and (iii) the Participant, after receiving the notice, affirmatively elects a distribution. In addition, upon termination of this Plan if the Plan does not offer an annuity option (purchased from a commercial provider) and if the Employer does not maintain another 401 (a) defined contribution plan, the Participant's Account balance will, without the Participant's consent, be distributed to the Participant in a lump sum. However, if the Employer maintains another 401 (a) defined contribution plan, the Participant's Account balance will be transferred, without the Participant's consent, to the other plan if the Participant does not consent to an immediate distribution. An Account balance is immediately distributable if any part of the Account balance could be distributed to the Participant (or surviving spouse) before the Participant attains or would have attained (if not deceased) the later of Normal Retirement Age or age sixty-two (62). For purposes of determining the applicability of the foregoing consent requirements to distributions made before the first day of the first plan year beginning after December 31, 1988, the Participant's vested Account balance shall not include amounts attributable to accumulated deductible employee contributions within the meaning of section 72(0)(5)(B) of the Code. 9.03 Transfer to Another Plan. (a) If a Participant becomes eligible to participate in another plan maintained by the Employer that is qualified under section 401 (a) of the Code, the Plan Administrator shall, at the written election of such Participant, transfer all or part of such Participant's Account to such plan, provided the plan administrator for such plan certifies to the Plan Administrator that its plan provides for the acceptance of such a transfer. Such transfers shall include those transfers of the nonforfeitable interest of a Participant's Account made for the purchase of service credit in defined benefit plans maintained by the Employer. For purposes of this Plan, any such transfer shall not be considered a distribution to the Participant subject to spousal consent as described in Section 9.10. (b) Notwithstanding any provision of the Plan to the contrary that would otherwise limit a Distributee's election under this Section, a Distributee may elect, at the time and in the manner prescribed by the Plan Administrator, to have any portion of an Eligible Rollover Distribution paid directly to an Eligible Retirement Plan specified by the Distributee in a Direct Rollover. (c) Definitions. For the purposes of Subsection (b), the following definitions shall apply: (1) Eligible Rollover Distribution. 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 period of ten years or more; (ii) any distribution to the extent such distribution is required under section 401 (a)(9) of the Code; and (iii) the portion of any other distribution(s) that is not includible in gross income. A portion of a distribution shall not fail to be an eligible rollover distribution merely because the portion consists of after-tax employee contributions which are not includible in gross income. However, such portion may be transferred only to an individual retirement account or annuity described in section 408(a) or (b) of the Code, or to a 14 qualified defined contribution plan described in section 401 (a) or 403(a) of the Code that agrees to separately account for amounts so transferred, including separately accounting for the portion of such distribution which is includible in gross income and the portion of such distribution which is not so includible. (2) Eligible Retirement Plan. (i) an individual retirement account described in section 408(a) of the Code or an individual retirement annuity described in section 408(b) of the Code (collectively, an "IRA"); (ii) an annuity plan described in section 403(a) of the Code; (iii) an annuity contract described in section 403(b) of the Code, (iv) an eligible plan under section 457(b) of the Code which is maintained by a state, political subdivision of a state, or any agency or instrumentality of a state or political subdivision of a state and which agrees to separately account for amounts transferred into such plan from this Plan; or (v) a qualified plan described in section 401 (a) of the Code, that accepts the Distributee's Eligible Rollover Distribution. 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 relations order, as defined in section 414(p) of the Code. (3) Distributee. Participant; in addition, the Participant's surviving spouse and the spouse or former spouse who is the alternate payee under a qualified domestic relations order, as defined in section 414(p) of the Code, are Distributees with regard to the interest of the spouse or former spouse. (4) Direct Rollover. A payment by the Plan to the Eligible Retirement Plan specified by the Distributee. 9.04 De Minimis Accounts. Notwithstanding the foregoing provisions of this Article, prior to January 1, 2002, if a Participant terminates service, and the value of his/her Nonforfeitable Interest in his/her Account is not greater than the dollar limit under section 411 (a)(11)(A) of the Code, the Participant's benefit shall be paid (to the extent it constitutes an Eligible Rollover Distribution) in the form of a direct rollover to the Plan Administrator's designated IRA, unless he/she affirmatively elects to receive a cash payment or a Direct Rollover in accordance with procedures established by the Plan Administrator. On or after January 1, 2002, if a Participant terminates service, and the value of his/her Nonforfeitable Interest in his/her Account is less than $1,000, the Participant's benefit shall be paid as soon as practicable to the Participant in a single lump sum distribution. If the value of the Participant's Account is at least $1,000 but not more than the dollar limit under section 411 (a)(11)(A) of the Code, the Participant may elect to receive his/her Nonforfeitable Interest in his/her Account. Such distribution shall be made as soon as practicable following the request, in a lump sum. For purposes of this Section, if a Participant's Nonforfeitable Interest in his/her Account is zero, the Participant shall be deemed to have received a distribution of such Nonforfeitable Interest in his/her Account. 9.05 Withdrawal of Voluntary Contributions. A Participant may upon written request withdraw a part of or the full amount of his/her Voluntary Contribution Account. Such withdrawals may be made at any time, provided that no more than two (2) such withdrawals may be made during any calendar year. No forfeiture will occur solely as the result of any such withdrawal. 15 9.06 Withdrawal of Deductible Employee Contributions. A Participant may upon written request withdraw a part of or the full amount ofhislher Deductible Employee Contribution Account. Such withdrawals may be made at any time, provided that no more than two (2) such withdrawals may be made during any calendar year. No forfeiture will occur solely as the result of any such withdrawal. 9.07 In-Service Distribution from Rollover Account. Where elected by the Employer in the Adoption Agreement, a Participant that has a separate account attributable to rollover contributions to the Plan, may at any time elect to receive a distribution of all or any portion of the amount held in the Rollover Account, provided that no more than two (2) such distributions may be made during any calendar year. 9.08 In-Service Distributions. Unless otherwise elected by the Employer in the Adoption Agreement, a Participant who has reached age 70-1/2 regardless of his Nonforfeitable Interest in his/her entire Employer Contribution Account, shall, upon written request, receive a distribution of a part of or the full amount of the balance in any or all of his vested Accounts. Such distributions may be requested at any time, provided that no more than two (2) such distributions may be made during any calendar year. 9.09 Latest Commencement of Benefits. Notwithstanding anything to the contrary in this Article, benefits shall begin no later than the Participant's Required Beginning Date, as defined under Section 10.05, or as otherwise provided in Section 10.04. 9.10 Spousal Consent. Notwithstanding the foregoing, if the Employer elected the Q]SA Election in the Adoption Agteement, a married Participant must first obtain his or her spouse's notarized consent to request a distribution (other than a Qualified Joint and Survivor Annuity), withdrawal, or rollover under this Article IX. X. DISTRIBUTION REQUIREMENTS 10.01 General Rules. (a) Subject to the provisions of Article XII or XVII if so elected by the Employer in the Adoption Agreement, the requirements of this Article shall apply to any distribution of a Participant's interest and will take precedence over any inconsistent provisions of this Plan. Unless otherwise specified, the provisions of this Article X apply to calendar years beginning after December 31, 2002. With respect to distributions under the Plan made in or for Plan Years beginning on or after January 1,2002 and prior to January I, 2003, the Plan will apply the minimum distribution requirements of section 401 (a) (9) of the Code in accordance with the regulations under section 401 (a)(9) that were proposed on January 17,2001, notwithstanding any provision of the Plan to the contrary. (b) All distributions required under this Article shall be determined and made in accordance with the regulations under section 401 (a)(9) of the Code, and the minimum distribution incidental benefit requirement of section 401 (a)(9)(G) of the Code. (c) Limits on Distribution Periods. As of the first Distribution Calendar Year, distributions to a Participant, if not made in a single-sum, may only be made over one of the following periods: (1) The life of the Participant; or (2) The joint lives of the Participant and a designated Beneficiary; or (3) A period certain not extending beyond the life expectancy of the Participant; or (4) A period certain not extending beyond the joint and last survivor expectancy of the Participant and a designared Beneficiary. 16 (d) TEFRA Section 242(b)(2) Elections. Notwithstanding the other provisions of this Article XVII, 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. 10.02 Time and Manner of Distribution (a) 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. (b) Death of Participant Beftre 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: (1) If the Participant's surviving spouse is the Participant's sole designated Beneficiary, then, 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 70 1/2, if later. (2) If the Participant's surviving spouse is not the Participant's sole designated Beneficiary, then distributions to the designated Beneficiary will begin by December 31 of the calendar year immediately following the calendar year in which the Participant died. (3) If there 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. (4) If the Participant's surviving spouse is the Participant's sole designated Beneficiary and the surviving spouse dies after the Participant but before distributions to the surviving spouse begin, this Section 1O.02(b), other than Section 1 0.02(b)(1), will apply as if the surviving spouse were the Participant. For purposes of this Section 10.02(b) and Section 10.04, unless Section 10.02(b)(4) applies, distributions are considered to begin on the Participant's required beginning date. If Section 10.02(b)(4) applies, distributions are considered to begin on the date distributions are required to begin to the surviving spouse under Section 10.02(b)(1). 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 surviving spouse before the date distributions are required to begin to the surviving spouse under Section 10.02(b)(1)), the date distributions are considered to begin is the date distributions actually commence. (c) 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 Sections 10.03 and 10.04. 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 Code Section 401 (a)(9) and the Treasury Regulations. 10.03 Required Minimum Distributions During Participant's Lifetime (a) Amount of Required Minimum Distribution For Each Distribution Calendar Year. During the Participant's lifetime, the minimum amount that will be distributed for each distribution calendar year is the lesser of: (1) The quotient obtained by dividing the Participant's Account Balance by the distribution 17 period set forth in the Uniform Lifetime Table found in Section 1.40 I (a)(9)-9, Q&A-2, of the Final Income Tax Regulations using the Participant's age as of the Participant's birthday in the distribution calendar year; or (2) If the Participant's sole designated Beneficiary 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, Q&A-3. of the regulations using the Participant's and spouse's attained ages as of the Participant's and spouse's birthdays in the distribution calendar year. (b) Lifetime Required Minimum Distributions Continue Through Year of Participants Death. Required minimum distributions will be determined under this Section 10.03 beginning with the first distribution calendar year and continuing up to, and including, the distribution calendar year that includes the Participant's date of death. 10.04 Required Minimum Distributions After Participant's Death (a) Death On or After Date Distributions Begin. (1) 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 dividing 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, determined as follows: (i) 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. Oi) If the Participant's surviving 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 spouse as of the spouse's birthday in the calendar year of the spouse's death, reduced by one for each subsequent calendar year. Oii) 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. (2) 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. (b) Death Before Date Required Distributions Begin. (1) Participant Survived by Designated Beneficiary. If the Participant dies before the date required 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 18 the quotient obtained by dividing the Participant's Account Balance by the remaining life expectancy of the Participant's designated Beneficiary, determined as provided in Section 10.04(a). (2) 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. (3) Death o/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 surviving spouse dies before distributions are required to begin to the surviving spouse under Section 10.02(b)(1), this Section 10.04(b) will apply as if the surviving spouse were the Participant. 10.05 Definitions (a) Designated Beneficiary. The individual who is designated by the Participant (or the Participant's surviving spouse) as the Beneficiary of the Participant's interest under the Plan and who is the designated Beneficiary under Code Section 401 (a)(9) and Section 1.401 (a)(9)-4 of the regulations. (b) Distribution Calendar Year. A calendar year for which a minimum distribution is required. For distributions beginning before the Participant's death, the first distribution calendar year is the calendar year immediately preceding the calendar year which contains the Participant's required beginning date. For distributions beginning after the Participant's death, the first distribution calendar year is the calendar year in which distributions are required to begin under Section 10.02(b). 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 beginning date occurs, will be made on or before December 31 of that distribution calendar year. (c) Life Expectancy. Life expectancy as computed by use of the Single Life Table in Section 1.401 (a) (9)- 9, Q&A-l, of the regulations. (d) Participants Account Balance. The Account Balance as of the last Accounting 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 Accounting Date and decreased by distributions made in the valuation calendar year after the Accounting Date. The Account Balance for the valuation calendar year includes any amounts rolled over or transferred to the Plan either in the valuation calendar year or in the distribution calendar year if distributed or transferred in the valuation calendar year. (e) Required Beginning Date. The Required Beginning Date of a Participant is April 1 of the calendar year following the later of the calendar year in which the Participant attains age seventy and one-half (70-1/2), or the calendar year in which the Participant retires. XI. MODES OF DISTRIBUTION OF BENEFITS 11.01 Normal Mode of Distribution. Unless an elective mode of distribution is elected as provided in Section 11.02, benefits shall be paid to the Participant in the form of a lump sum payment. Notwithstanding the foregoing, where the Employer made the "QJSA Election" in the Adoption Agreement, unless an elective mode of distribution is elected in accordance with Article XVII, benefits shall be paid to the Participant in the form provided for in Article XVII. 19 11.02 Elective Mode of Distribution. Subject to the requirements of Articles X, XII and XVII, a Participant may revocably elect to have his/her Account distributed in anyone (1) of the following modes in lieu of the mode described in Section 11.01: (a) Equal Payments. Equal monthly, quarterly, semi-annual, or annual payments in an amount chosen by the Participant continuing until the Account is exhausted. (b) Period Certain. Approximately equal monthly, quarterly, semi-annual, or annual payments, calculated to continue for a period certain chosen by the Participant. (c) Other. Any other sequence of payments requested by the Participant. (d) Lump Sum. Where the Employer did make the Q]SA Election in the Adoption Agreement, a Participant may also elect a lump sum payment. 11.03 Election of Mode. A Participant's election of a payment option must be made in writing between thirty (30) and ninety (90) days before the payment of benefits is to commence. 11.04 Death Benefits. Subject to Article X (and Article XII or XVII if so elected by the Employer in the Adoption Agreement), (a) In the case of a Participant who dies before he/she has begun receiving benefit payments, the Participant's entire Nonforfeitable Interest shall then be payable to his/her Beneficiary within ninety (90) days of the Participant's death. A Beneficiary who is entitled to receive benefits under this Sec- tion may elect to have benefits commence at a later date, subject to the provisions of Article X. The Beneficiary may elect to receive the death benefit in any of the forms available to the Participant under Sections 11.01 and 11.02. If the Beneficiary is the Participant's surviving spouse, and such surviving spouse dies before payment commences, then this Section shall apply to the beneficiary of the surviving spouse as though such surviving spouse were the Participant. (b) Should the Participant die after he/she has begun receiving benefit payments, the Beneficiary shall receive the remaining benefits, if any, that are payable, under the payment schedule elected by the Participant. Notwithstanding the foregoing, the Beneficiary may elect to accelerate payments of the remaining balances, including but not limited to, a lump sum distribution. XII. SPOUSAL DEATH BENEFIT REQUIREMENTS 12.01 Application. Unless otherwise elected by the Employer in the Adoption Agreement, on or after January 1, 2006, the provisions of this Article shall take precedence over any conflicting provision in this Plan. The provisions of this Article, known as the "Beneficiary Spousal Consent Election," shall apply to any Participant who is credited with any Period of Service with the Employer on or after August 23, 1984, and such other Participants as provided in Section 12.04. 12.02 Spousal Death Benefit. (a) On the death of a Participant, the Participant's Vested Account Balance will be paid to the Participant's Surviving Spouse. If there is no Surviving Spouse, or if the Participant has waived the spousal death benefit, as provided in Section 12.03, such Vested Account Balance will be paid to the Participant's designated Beneficiary. (b) The Surviving Spouse may elect to have distribution of the Vested Account Balance commence within the ninety (90) day period following the date of the Participant's death, or as otherwise provided under Section 11.04. The Account balance shall be adjusted for gains or losses occurring after the Participant's death in accordance with the provisions of the Plan governing the adjustment of Account balances for other types of distributions. 20 12.03 Waiver of Spousal Death Benefit. The Participant may waive the spousal death benefit described in Section 12.02 at any time; provided that no such waiver shall be effective unless: (a) the Participant's Spouse consents in writing to the election; (b) the election designates a specific Beneficiary, including any class of Beneficiaries or any contingent Beneficiaries, which may not be changed without spousal consent (or the Spouse expressly permits designations by the Participant without any further spousal consent); (c) the Spouse's consent acknowledges the effect of the election; and (d) the Spouse's consent is witnessed by a Plan representative or notary public. If it is established to the satisfaction of a Plan representative that there is no Spouse or that the Spouse cannot be located, a waiver will be deemed to meet the requirements of this Section. Any consent by a Spouse obtained under this provision (or establishment that the consent of a Spouse may not be obtained) shall be effective only with respect to such Spouse. A consent that permits designations by the Participant without any requirement of further consent by such Spouse must acknowledge that the Spouse has the right to limit consent to a specific Beneficiary, and a specific form of benefit where applicable, and that the Spouse voluntarily elects to relinquish either or both of such rights. A revocation of a prior waiver may be made by a Participant without the consent of the Spouse at any time before the commencement of benefits. The number of revocations shall not be limited. 12.04 Definitions. For the purposes of this Section, the following definitions shall apply: (a) Spouse (Surviving Spouse): The Spouse or Surviving Spouse of the Participant, provided that a former . Spouse will be treated as the Spouse or Surviving Spouse and a current Spouse will not be treated as the Spouse or Surviving Spouse to the extent provided under a qualified domestic relations order as described in section 414(p) of the Code; and (b) Vested Account Balance: The aggregate value of the Participant's vested Account balances derived from Employer and Employee contributions (including rollovers), whether vested before or upon death, including the proceeds of insurance contracts, if any, on the Participant's life. The provisions of this Article shall apply to a Participant who is vested in amounts attributable to Employer Contributions, Employee contributions (or both) at the time of death or distribution. XIII. WANS TO PARTICIPANTS 13.01 Availability of Loans to Participants. (a) If the Employer has elected in the Adoption Agreement to make loans available to Participants, a Participant may apply for a loan from the Plan subject to the limitations and othet provisions of this Article. (b) The Employer shall establish written guidelines governing the granting of loans, provided that such guidelines are approved by the Plan Administrator and are not inconsistent with the provisions of this Article, and that loans are made available to all Participants on a reasonably equivalent basis. 13.02 Terms and Conditions of Loans to Participants. Any loan by the Plan to a Participant under Section 13.01 of the Plan shall satisfy the following requirements: (a) Availability. Loans shall be made available to all Participants on a reasonably equivalent basis. 21 (b) Nondiscrimination. Loans shall not be made to highly compensated Employees in an amount greater than the amount made available to other Employees. (c) Interest Rate. Loans must be adequately secured and bear a reasonable interest rate. (d) Loan Limit. No Participant loan shall exceed the present value of the Participant's Nonfotfeitable Interest in his/her Account. (e) Foreclosure. In the event of default, foreclosure on the note and attachment of security will not occur until a distributable event occurs in the Plan. (f) Reduction of Account. Notwithstanding any other provision of this Plan, the portion of the Participant's vested Account balance used as a security interest held by the Plan by reason of a loan outstanding to the Participant shall be taken into account for purposes of determining the amount of the Account balance payable at the time of death or distribution, but only if the reduction is used as repayment of the loan. Ifless than one hundred percent (100%) of the Participant's nonforfeitable Account balance (determined without regard to the preceding sentence) is payable to the surviving spouse, then the Account balance shall be adjusted by first reducing the nonforfeitable Account bal- ance by the amount of the security used as repayment of the loan, and then determining the benefit payable to the surviving spouse. (g) Amount of Loan. At the time the loan is made, the principal amount of the loan plus the outstanding balance (principal plus accrued interest) due on any other outstanding loans to the Participant or Beneficiary from the Plan and from all other plans of the Employer that are qualified employer plans under section 72(p)(4) of the Code shall not exceed the lesser of: (1) $50,000, reduced by the excess (if any) of (i) The highest outstanding balance ofloans from the Plan during the one (1) year period ending on the day before the date on which the loan is made, over (ii) The outstanding balance of loans from the Plan on the date on which such loan is made; or (2) One-half (1/2) of the value of the Participant's Nonforfeitable Interest in all of his/her Accounts under this Plan (or $10,000, if greater, for loans prior to January I, 2006). For the purpose of the above limitation, all loans from all qualified employer plans, including 457(b) plans, under Code section 72(p)(4) of the Code are aggregated. (h) Application fOr Loan. The Participant must give the Employer adequate written notice, as determined by the Employer, of the amount and desired time for receiving a loan. No more than one (1) loan may be made by the Plan to a Participant in any calendar year. No loan shall be approved if an existing loan from the Plan to the Participant is in default to any extent. (i) Length of Loan. The terms of any loan issued or renegotiated after December 31, 1993, shall require the Participant to repay the loan in substantially equal installments of principal and interest, at least quarterly (except as otherwise provided in Treasury Regulation section l.72(p)-I, Q&A-9 for certain leave of absence and military leave), over a period that does not exceed five (5) years from the date of the loan; provided, however, that if the proceeds of the loan are applied by the Participant to acquire any dwelling unit that is to be used within a reasonable time after the loan is made as the princi- pal residence of the Participant, the five (5) year limit shall not apply. In this event, the period of repayment shall not exceed a reasonable period determined by the Employer. Principal installments 22 and interest payments otherwise due may be suspended during an authorized leave of absence, if the promissory note so provides, but not beyond the original term permitted under this Subsection (i), with a revised payment schedule (within such term) instituted at the end of such period of suspension. If the Participant fails to make any installment payment, the Plan Administrator may, according to Treasury Regulation 1. 72(p )-1, allow a cure period, which cure period cannot continue beyond the last day of the calendar quarter following the calendar quarter in which the required installment payment was due. (j) Prepayment. The Participant shall be permitted to repay the loan in whole or in part at any time prior to maturity, without penalty. (k) Note. The loan shall be evidenced by a promissory note executed by the Participant and delivered to the Employer, and shall bear interest at a reasonable rate determined by the Employer. Unless waived by a Participant, any plan loan that is outstanding on the date that active duty military service begins will accrue interest at a rate of no more than 6% during the period of military service in accordance with the provisions of the Servicemembers Civil Relief Act (SCRA) , 50 USC App. ~ 526 and subject to the notice requirements contained therein. This limitation applies even if loan payments are suspended during the period of military service as permitted under the Plan and Treasury regulations. (I) Security. The loan shall be secured by an assignment of that portion the Participant's right, title and interest in and to his/her Employer Contribution Account (to the extent vested), Participant Contribution Account, and Rollover Account that is equal to fifty percent (50%) of the Participant's Account (to the extent vested). (m) Assignment or Pledge. For the purposes of paragraphs (h) and (i), assignment or pledge of any portion of the Participant's interest in the Plan and a loan, pledge, or assignment with respect to any insurance contract purchased under the Plan, will be treated as a loan. (n) Spousal Consent. If the Employer elected the Q]SA Election in the Adoption Agreement, the Participant must first obtain his or her spouse's notarized consent to the loan. (0) Other limns and Conditions. The Employer shall fix such other terms and conditions of the loan as it deems necessary to comply with legal requirements, to maintain the qualification of the Plan and Trust under section 401 (a) of the Code, or to prevent the treatment of the loan for tax purposes as a distribution to the Participant. The Employer, in its discretion for any reason, may fix other terms and conditions of the loan, not inconsistent with the provisions of this Article. 13.03 Participant Loan Accounts. (a) Upon approval of a loan to a Participant by the Employer, an amount not in excess of the loan shall be transferred from the Participant's other investment fund(s), described in Section 6.05 of the Plan, to the Participant's Loan Account as of the Accounting Date immediately preceding the agreed upon date on which the loan is to be made. (b) The assets of a Participant's Loan Account may be invested and reinvested only in promissory notes received by the Plan from the Participant as consideration for a loan permitted by Section 13.01 of the Plan or in cash. Uninvested cash balances in a Participant's Loan Account shall not bear interest. No person who is otherwise a fiduciary of the Plan shall be liable for any loss, or by reason of any breach, that results from the Participant's exercise of such control. (c) Repayment of principal and payment of interest shall be made by payroll deduction or, where repay- ment cannot be made by payroll deduction, by check, and shall be invested in one (1) or more other 23 investment funds, in accordance with Section 6.05 of the Plan, as of the next Accounting Date after payment thereof to the Trust. The amount so invested shall be deducted from the Participant's Loan Account. (d) The Employer shall have the authority to establish other reasonable rules, not inconsistent with the provisions of the Plan, governing the establishment and maintenance of Participant Loan Accounts. ~ PLAN AMENDMENT, TERMINATION AND OPTIONAL PROVISIONS 14.01 Amendment by Employer. The Employer reserves the right, subject to Section 14.02 of the Plan, to amend the Plan from time to time by either: (a) Filing an amended Adoption Agreement to change, delete, or add any optional provision; or (b) Continuing the Plan in the form of an amended and restated Plan and Trust. No amendment to the Plan shall be effective to the extent that it has the effect of decreasing a Participant's accrued benefit. Notwithstanding the preceding sentence, a Participant's Account balance may be reduced to the extent permitted under section 412(c)(8) of the Code. For purposes of this paragraph, a Plan amendment which has the effect of decreasing a Participant's Account balance or eliminating an optional form of benefit, with respect to benefits attributable to service before the amendment shall be treated as reducing an accrued benefit. Furthermore, if the vesting schedule of the Plan is amended, in the case of an Employee who is a Participant as of the later of the date such amendment is adopted or the date it becomes effective, the nonforfeitable percentage (determined as of such date) of such Employee's right to his/her Employer-derived accrued benefit will not be less than his percentage computed under the plan without regard to such amendment. No amendment to the Plan shall be effective to eliminate or restrict an optional form of benefit. The preceding sentence shall not apply to a Plan amendment that eliminates or restricts the ability of a Participant to receive payment of his or her Account balance under a particular optional form of benefit if the amendment provides a single-sum distribution form that is otherwise identical to the optional form of benefit being eliminated or restricted. For this purpose, a single-sum distribution form is otherwise identical only if the single-sum distribution form is identical in all respects to the eliminated or restricted optional form of benefit (or would be identical except that it provides greater rights to the Participant) except with respect to the timing of payments after commencement. The Employer may (1) change the choice of options in the Adoption Agreement, (2) add overriding language in the Adoption Agreement when such language is necessary to satisfy sections 415 or 416 of the Code because of the required aggregation of multiple plans, (3) amend administrative provisions of the trust or custodial document in the case of a nonstandardized plan and make more limited amendments in the case of a standardized plan such as the name of the plan, employer, trustee or custodian, plan administrator and other fiduciaries, the trust year, and the name of any pooled trust in which the Plan's trust will participate, (4) add certain sample or model amendments published by the Internal Revenue Service or other required good faith amendments which specifically provide that their adoption will not cause the plan to be treated as individually designed, and (5) add or change provisions permitted under the Plan and/or specify or change the effective date of a provision as permitted under the Plan and correct obvious and unambiguous typographical errors and/or cross-references that merely correct a reference but that do not in any way change the original intended meaning of the provisions. 14.02 Amendment of Vesting Schedule. If the Plan's vesting schedule is amended, or the Plan is amended in any way that directly or indirectly affects the computation of the Participant's nonforfeitable percentage, each Participant may elect, within a reasonable period after the adoption of the amendment or change, to have the nonforfeitable percentage computed under the Plan without regard to such amendment or change. 24 The period during which the election may be made shall commence with the date the amendment is adopted or deemed to be made and shall end on the latest of: (a) Sixty (60) days after the amendment is adopted; (b) Sixty (60) days after the amendment becomes effective; or (c) Sixty (60) days after the Participant is issued written notice of the amendment by the Employer or Plan Administrator. 14.03 Tennination by Employer. The Employer reserves the right to terminate this Plan. However, in the event of such termination no part of the Trust shall be used or diverted to any purpose other than for the exclusive benefit of the Participants or their Beneficiaries, except as provided in this Section. Upon Plan termination or partial termination, all Account balances shall be valued at their fair market value and the Participant's right to his/her Employer Contribution Account shall be one hundred percent (100%) vested and nonforfeitable. Such amount and any other amounts held in the Participant's other Accounts shall be maintained for the Participant until paid pursuant to the terms of the Plan. Any amounts held in a suspense account, after all liabilities of the Plan to Participants and Beneficiaries have been satisfied Ot provided for, shall be paid to the Employer in accordance with the Code and regulations thereunder. In the event that the Commissioner of Internal Revenue determines that the Plan is not initially qualified under the Internal Revenue Code, any contribution made by the Employer incident to that initial qualification must be returned to the Employer within one year after the date the initial qualification is denied, but only if the application for the qualification is made by the time prescribed by law for filing the Employer's return for the year in which the Plan is adopted, or such later date as the Secretary of the Treasury may prescribe. 14.04 Discontinuance of Contributions. A permanent discontinuance of contributions to the Plan by the Employer, unless an amended and restated Plan is established, shall constitute a Plan termination. In the event of a complete discontinuance of contributions under the Plan, the Account balance of each affected Participant shall be nonforfeitable. 14.05 Amendment by Plan Administrator. The Plan Administrator may amend this Plan upon thirty (30) days written notification to the Employer; provided, however, that any such amendment must be for the express purpose of maintaining compliance with applicable federal laws and regulations of the Internal Revenue Service. Such amendment shall become effective unless, within such 30-day period, the Employer notifies the Administrator, in writing, that it disapproves such amendment, in which case such amendment shall not become effective. In the event of such disapproval, the Administrator shall be under no obligation to continue acting as Administrator hereunder. 14.06 Optional Provisions. Any provision which is optional under this Plan shall become effective if and only if elected by the Employer and agreed to by the Plan Administrator. xv. ADMINISTRATION 15.01 Powers of the Employer. The Employer shall have the following powers and duties: (a) To appoint and remove, with or without cause, the Plan Administrator; (b) To amend or terminate the Plan pursuant to the provisions of Article XIV; (c) To appoint a committee to facilitate administration of the Plan and communications to Participants; 25 (d) To decide all questions of eligibility (1) for Plan participation, and (2) upon appeal by any Participant, Employee or Beneficiary, fot the payment of benefits; (e) To engage an independent qualified public accountant, when required to do so by law, to prepare an- nually the audited financial statements of the Plan's operation; (f) To take all actions and to communicate to the Plan Administrator in writing all necessary information to carry out the terms of the Plan and Trust; and (g) To notifY the Plan Administrator in writing of the termination of the Plan. 15.02 Duties of the Plan Administrator. The Plan Administrator shall have the following powers and duties: (a) To construe and interpret rhe provisions of the Plan; (b) To maintain and provide such returns, reports, schedules, descriptions, and individual Account statements, as are required by law within the times prescribed by law; and to furnish to the Employer, upon request, copies of any or all such materials, and further, to make copies of such instruments, reports, descriptions, and statements as are required by law available for examination by Participants and such of their Beneficiaries who are or may be entitled to benefits under the Plan in such places and in such manner as required by law; (c) To obtain from the Employer such information as shall be necessary for the proper administration of the Plan; (d) To determine the amount, manner, and time of payment of benefits hereunder; (e) To appoint and retain such agents, counsel, and accountants for the purpose of properly administer- ing the Plan; (f) To distribute assets of the Trust to each Participant and Beneficiary in accordance with Article X of the Plan; (g) To pay expenses from the Trust pursuant to Section 6.03 of the Plan; and (h) To do such other acts reasonably required to administer the Plan in accordance with its provisions or as may be provided for or required by law. 15.03 Protection of the Employer. The Employer shall not be liable for the acts or omissions of the Plan Administrator, but only to the extent that such acts or omissions do not result from the Employer's failure to provide accurate or timely information as required or necessary for proper administration of the Plan. 15.04 Protection of the Plan Administrator. The Plan Administrator may rely upon any certificate, notice or direction purporting to have been signed on behalf of the Employer which the Plan Administrator believes to have been signed by a duly designated official of the Employer. 15.05 Resignation or Removal of Plan Administrator. The Plan Administrator may resign at any time effective upon sixty (60) days priot written notice to the Employer. The Plan Administrator may be removed by the Employer at any time upon sixty (60) days prior written notice to the Plan Administrator. Upon the 26 resignation or removal of the Plan Administrator, the Employer may appoint a successor Plan Administrator; failing such appointment, the Employer shall assume the powers and duties of Plan Administrator. Upon the resignation or removal of the Plan Administrator, any Trust assets invested by or held in the name of the Plan Administrator shall be transferred to the trustee in cash or property, at fair market value, except that the return of Trust assets invested in a contract issued by an insurance company shall be governed by the terms of that contract. 15.06 No Termination Penalty. The Plan Administrator shall have no authority or discretion to impose any termination penalty upon its removal. 15.07 Decisions of the Plan Administrator. All constructions, determinations, and interpretations made by the Plan Administrator pursuant to Section 15.02(a) or (d) or by the Employer pursuant to Section 15.01(d) shall be final and binding on all persons participating in the Plan, given deference in all courts of law to the greatest extent allowed by applicable law, and shall not be overturned or set aside by any court oflaw unless found to be arbitrary or capricious, or made in bad faith. XVI. MISCELLANEOUS 16.01 Nonguarantee of Employment. Nothing contained in this Plan shall be construed as a contract of employment between the Employer and any Employee, or as a right of an Employee to be continued in the employment of the Employer, as a limitation of the right of the Employer to discharge any of its Employees, with or without cause. 16.02 Rights to Trust Assets. No Employee or Beneficiary shall have any right to, or interest in, any assets of the Trust upon termination of his/her employment or otherwise, except as provided from time to time under this Plan, and then only to the extent of the benefits payable under the Plan to such Employee or Beneficiary out of the assets of the Trust. All payments of benefirs as provided for in this Plan shall be made solely out of the assets of the Trust and none of the fiduciaries shall be liable therefor in any manner. 16.03 Nonalienation of Benefits. Except as provided in Section 16.04 of the Plan, benefits payable under this Plan shall not be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, charge, garnishment, execution, or levy of any kind, either voluntary or involuntary, prior to actually being received by the person entitled to the benefit under the terms of the Plan; and any attempt to anticipate, alienate, sell, transfer, assign, pledge, encumber, charge or otherwise dispose of any right to benefits payable hereunder, shall be void. The Trust shall not in any manner be liable for, or subject to, the debts, contracts, liabilities, engagements or torts of any person entitled to benefits hereunder. 16.04 Qualified Domestic Relations Order. Notwithstanding Section 16.03 of the Plan, amounts may be paid with respect to a Participant pursuant to a domestic relations order, but if and only if the order is determined to be a qualified domestic relations order within the meaning of section 414(p) of the Code or any domestic relations order entered before January 1, 1985. 16.05 Nonforfeitability of Benefits. Subject only to the specific provisions of this Plan, nothing shall be deemed to deprive a Participant of his/her right to the Nonforfeitable Interest to which he/she becomes entitled in accord- ance with the provisions of the Plan. 16.06 Incompetency of Payee. In the event any benefit is payable to a minor or incompetent, to a person otherwise under legal disability, or to a person who, in the sole judgment of the Employer, is by reason of advanced age, illness, or other physical or mental incapacity incapable of handling the disposition of his/her property, the Employer may apply the whole or any part of such benefit directly to the care, comfort, maintenance, sup- port, education, or use of such person or payor distribute the whole or any part of such benefit to: (a) The parent of such person; 27 (b) The guardian, committee, or other legal representative, wherever appointed, of such person; (c) The person with whom such person resides; (d) Any person having the care and control of such person; or (e) Such person personally. The receipt of the person to whom any such payment or distribution is so made shall be full and complete dis- charge therefor. 16.07 Inability to Locate Payee. Anything to the contrary herein notwithstanding, if the Employer is unable, after reasonable effort, to locate any Participant or Beneficiary to whom an amount is payable hereunder, such amount shall be forfeited and held in the Trust for application against the next succeeding Employer Contribution or contributions required to be made hereunder. Notwithstanding the foregoing, however, such amount shall be reinstated, by means of an additional Employer contribution, if and when a claim for the forfeited amount is subsequently made by the Participant or Beneficiary or if the Employer receives proof of death of such person, satisfactory to the Employer. To the extent not inconsistent with applicable law, any benefits lost by reason of escheat under applicable state law shall be considered forfeited and shall not be reinstated. 16.08 Mergers, Consolidations, and Transfer of Assets. The Plan shall not be merged into or consolidated wirh any other plan, nor shall any of its assets or liabilities be transferred into any such other plan, unless each Par- ticipant in the Plan would (if the Plan then terminated) receive a benefit immediately after the merger, con- solidation, or transfer that is equal to or greater than the benefit he/she would have been entitled to receive immediately before the merger, consolidation, or transfer (if the Plan had then terminated). 16.09 Employer Records. Records of the Employer as to an Employee's or Participant's Period of Service, termina- tion of service and the reason therefor, leaves of absence, reemployment, Earnings, and Compensation will be conclusive on all persons, unless determined to be incorrect. 16.10 Gender and Number. The masculine pronoun, whenever used herein, shall include the feminine pronoun, and the singular shall include the plural, except where the context requires otherwise. 16.11 Applicable Law. The Plan shall be construed under the laws of the State where the Employer is located, except to the extent superseded by federal law. The Plan is established with the intent that it meets the requirements under the Code. The provisions of this Plan shall be interpreted in conformity with these requirements. In the event of any conflict between the Plan and a policy or contract issued hereunder, the Plan provisions shall control; provided, however, no Plan amendment shall supersede an existing policy or contract unless such amendment is required to maintain qualification under section 401 (a) and 414(d) of the Code. XVII. SPOUSAL BENEFIT REQUIREMENTS 17.01 Application. Effective as of]anuary 1,2006, where elected by the Employer in the Adoption Agreement (the "QJSA Election"), the provisions of this Article shall take precedence over any conflicting provision in this Plan. If elecred, the provisions of this Article shall apply to any Participant who is credited with any Period of Service with the Employer on or after August 23, 1984, and such other Participants as provided in Section 17.05. 17.02 Qualified Joint and Survivor Annuity. Unless an optional form of benefit is selected pursuant to a Qualified Election within the ninety (90) day period ending on the Annuity Starting Date, a married Participant's Vested Account Balance will be paid in the form of a Qualified Joint and Survivor Annuity and an unmarried 28 Participant's Vested Account Balance will be paid in the form of a Straight Life Annuity. The Participant may elect to have such annuity distributed upon the attainment of the Earliest Retirement Age under the Plan. 17.03 Qualified Preretirement Survivor Annuity. If a Participant dies before the Annuity Starting Date, then fifty percent (50%) of the Participant's Vested Account Balance shall be applied toward the purchase of an annuity for the life of the Surviving Spouse; the remaining portion shall be paid to such Beneficiaries (which may include such Spouse) designated by the Participant. Notwithstanding the foregoing, the Participant may waive the spousal annuity by designating a different Beneficiary within the Election Period pursuant to a Qualified Election. To the extent that less than one hundred percent (100%) of the vested Account balance is paid to the Surviving Spouse, the amount of the Participant's Account derived from Employee contributions will be allocated to the Surviving Spouse in the same proportion as the amount of the Participant's Account derived from Employee contributions is to the Participant's total Vested Account Balance. The Surviving Spouse may elect to have such annuity distributed within a reasonable period after the Participant's death. Further, such Spouse may elect to receive any death benefit payable to him/her hereunder in any of the forms available to the Participant under Section 11.02. 17.04 Notice Requirements. (a) In the case of a Qualified Joint and Survivor Annuity as described in Section 17.02, the Plan Admin- istrator shall, no less than thirty (30) days and no more than ninety (90) days prior to the Annuity Starting Date, provide each Participant a written explanation of: (i) the terms and conditions of a Qualified Joint and Survivor Annuity; (ii) the Participant's right to make and the effect of an election to waive the Qualified Joint and Survivor Annuity form of benefit; (iii) the rights of a Participant's Spouse; and (iv) the right to make, and the effect of, a revocation of a previous election to waive the Qualified Joint and Survivor Annuity. However, if the Participant, after having received the written explanation, affirmatively elects a form of distribution and the Spouse consents to that form of distribution (if necessary), benefit payments may commence less than 30 days after the written explanation was provided to the Participant, provided that the following requirements are met: (1) The Plan Administrator provides information to the Participant clearly indicating that the Participant has a right to at least 30 days to consider whether to waive the Qualified Joint and Survivor Annuity and consent to a form of distribution other than a Qualified Joint and Survivor Annuity; (2) The Participant is permitted to revoke an affirmative distribution election at least until the Annuity Starting Date, or if later, at any time prior to the expiration of the 7 -day period that begins the day after the explanation of the Qualified Joint and Survivor Annuity is provided to the Participant; (3) The Annuity Starting Date is after the date that the explanation of the Qualified Joint and Survivor Annuity is provided to the Participant; and (4) Distribution in accordance with the affirmative election does not commence before the expiration of the 7 -day period that begins after the day after the explanation of the Qualified Joint and Survivor Annuity is provided to the Participant. (b) In the case of a Qualified Preretirement Survivor Annuity as described in Section 17.03, the Plan Administrator shall provide each Participant within the applicable period for such Participant a writ- ten explanation of the Qualified Preretirement Survivor Annuity in such terms and in such manner as would be comparable to the explanation provided for meeting the requirements of Subsection (a) applicable to a Qualified Joint and Survivor Annuity. The applicable period for a Participant is whichever of the following periods ends last: (i) the period beginning with the first day of the Plan Year in which the Participant attains age thirty-two (32) 29 and ending with the dose of the Plan Year preceding the Plan Year in which the Participant attains age thirty-five (35); Oi) a reasonable period ending after the individual becomes a Participant; (Hi) a reasonable period ending after Subsection (c) ceases to apply to the Participant; (iv) a reasonable period ending after this Article first applies to the Participant. Notwithstanding the foregoing, notice must be provided within a reasonable period ending after separation from service in the case of a Participant who separates from service before attaining age thirty-five (35). For purposes of applying the preceding paragraph, a reasonable period ending after the enumerated events described in (ii), (iii) and (iv) is the end of the two (2) year period beginning one (1) year prior to the date the applicable event occurs, and ending one (I) year after that date. In the case of a Participant who separates from service before the Plan Year in which age thirty-five (35) is attained, notice shall be provided within the two (2) year period beginning one (1) year prior to separation and ending one (1) year after separation. If such a Participant thereafter returns to employment with the Employer, the applicable period for such Participant shall be redetermined. (c) Notwithstanding the other requirements of this Section, the respective notices prescribed by this Section need not be given to a Participant if (1) the Plan "fully subsidizes" the costs of a Qualified Joint and Survivor Annuity or Qualified Preretirement Survivor Annuity, and (2) the Plan does not allow the Participant to waive the Qualified Joint and Survivor Annuity or Qualified Preretirement Survivor Annuity and does not allow a married Participant to designate a non-Spouse Beneficiary. For purposes of this Subsection (c), a plan fully subsidizes the costs of a benefit if no increase in cost or decrease in benefits to the Participant may result from the Participant's failure to elect another benefit. 17.05 Definitions. For the purposes of this Section, the following definitions shall apply: (a) Annuity Starting Date: The first day of the first period for which an amount is paid as an annuity or any other form. (b) Election Period: The period which begins on the first day of the Plan Year in which the Participant attains age thirty-five (35) and ends on the date of the Participant's death. If a Participant separates from service prior to the first day of the Plan Year in which age thirty-five (35) is attained, with respect to the Account balance as of the date of separation, the Election Period shall begin on the date of separation. Pre-age thirty-five (35) waiver: A Participant who will not yet attain age thirty-five (35) as of the end of any current Plan Year may make a special Qualified Election to waive the Qualified Preretirement Survivor Annuity for the period beginning on the date of such election and ending on the first day of the Plan Year in which the Participant will attain age thirty-five (35). Such election shall not be valid unless the Participant receives a written explanation of the Qualified Preretirement Survivor Annuity in such terms as are comparable to the explanation required under Section 17.04(a). Qualified Preretirement Survivor Annuity coverage will be automatically reinstated as of the first day of the Plan Year in which the Participant attains age thirty-five (35). Any new waiver on or after such date shall be subject to the full requirements of this Article. (c) Earliest Retirement Age: The earliest date on which, under the Plan, the Participant could elect to receive retirement benefits. (d) Qualified Election: A waiver of a Qualified Joint and Survivor Annuity or a Qualified Preretirement Survivor Annuity. Any waiver of a Qualified Joint and Survivor Annuity or a Qualified Preretirement Survivor Annuity shall not be effective unless: (a) the Participant's Spouse consents in writing to the election; (b) the election designates a specific Beneficiary, including any class of Beneficiaries or any contingent Beneficiaries, which may not be changed without spousal consent (or the Spouse 30 expressly permits designations by the Participant without any further spousal consent); (c) the Spouse's consent acknowledges the effect of the election; and (d) the Spouse's consent is witnessed by a Plan representative or notary public. Additionally, a Participant's waiver of the Qualified Joint and Survivor Annuity shall not be effective unless the election designates a form of benefit payment which may not be changed without spousal consent (or the Spouse expressly permits designations by the Participant without any further Spousal consent). If it is established to the satisfaction of a Plan representative that there is no Spouse or that the Spouse cannot be located, a waiver will be deemed a Qualified Election. Any consent by a Spouse obtained under this provision (or establishment that the consent of a Spouse may not be obtained) shall be effective only with respect to such Spouse. A consent that permits designations by the Participant without any requirement of further consent by such Spouse must acknowledge that the Spouse has the right to limit consent to a specific Beneficiary, and a specific form of benefit where applicable, and that the Spouse voluntarily elects to relinquish either or both of such rights. A revocation of a prior waiver may be made by a Participant without the consent of the Spouse at any time before the commencement of benefits. The number of revocations shall not be limited. No consent obtained under this provision shall be valid unless the Participant has received notice as provided in Section 17.04. (e) Qualified Joint and Survivor Annuity: An immediate annuity for the life of the Participant with a survivor annuity for the life of the Spouse which is fifty percent (50%) of the amount of the annuity which is payable during the joint lives of the Participant and the Spouse and which is the amount of benefit which can be purchased with the Participant's Vested Account Balance, (f) Spouse (Surviving Spouse): The Spouse or Surviving Spouse of the Participant, provided that a former Spouse will be treated as the Spouse or Surviving Spouse and a current Spouse will not be treated as the Spouse or Surviving Spouse to the extent provided under a qualified domestic relations order as described in section 414(p) of the Code. (g) Straight Life Annuity: An annuity payable in equal installments for the life of the Participant that terminates upon the Participant's death. (h) Vested Account Balance: The aggregate value of the Participant's vested Account balances derived from Employer and Employee contributions (including rollovers), whether vested before or upon death, including the proceeds of insurance contracts, if any, on the Participant's life. The provisions of this Article shall apply to a Participant who is vested in amounts attributable to Employer Contributions, Employee contributions (or both) at the time of death or distribution. 17.06 Annuity Contracts. Where benefits are to be paid in the form of a life annuity pursuant to the terms of this Article, a nontransferable annuity contract shall be purchased from a life insurance company and distributed to the Participant or Surviving Spouse, as applicable. The terms of any annuity contract purchased and distributed by the Plan shall comply with the requirements of this Plan and section 417 of the Code. 31 DECLARATION OF TRUST This Declaration ofT rust (the "Group Trust Agreement") is made as of the 19th day of May, 2001, by VantageTrust Company, which declares itself to be the sole Trustee of the trust hereby created. WHEREAS, the ICMA Retirement Trust was created as a vehicle for the commingling of the assets of governmental plans and governmental units described in Section 818(a)(6) of the Internal Revenue Code of 1986, as amended, pursuant to a Declaration ofT rust dated October 4, 1982, as subsequently amended, a copy of which is attached hereto and incorporated by reference as set out below (the "ICMA Declaration"); and WHEREAS, the trust created hereunder (the "Group Trust") is intended to meet the requirements of Revenue Ruling 81- 1 00, 1981-1 C.B. 326, and is established as a common trust fund within the meaning of Section 391: I of Title 35 of the New Hampshire Revised Statutes Annotated, to accept and hold for investment purposes the assets of the Deferred Compensation and Qualified Plans held by and through the ICMA Retirement Trust. NOW; THEREFORE, the Group Trust is created by the execution of this Declaration of Trust by the Trustee and is established with respect to each Deferred Compensation and Qualified Plan by the transfer to the Trustee of such Plan's assets in the ICMA Retirement Trust, by the Trustees thereof, in accord with the following provisions: 1. Incorporation of ICMA Declaration by Reference; ICMA By-Laws. Except as otherwise provided in this Group Trust Agreement, and to the extent not inconsistent herewith, all provisions of the ICMA Declaration are incorporated herein by reference and made a part hereof, to be read by substituting the Group Trust for the Retirement Trust and the Trustee for the Board of Trustees referenced therein. In this respect, unless the context clearly indicates otherwise, all capitalized terms used herein and defined in the ICMA Declaration have the meanings assigned to them in the ICMA Declaration. In addition, the By-Laws of the ICMA Retirement Trust, as the same may be amended from time-to-time, are adopted as the By-Laws of the Group Trust to the extent not inconsistent with the terms of this Group Trust Agreement. Notwithstanding the foregoing, the terms of the lCMA Declaration and By-Laws are further modified with respect to the Group Trust created hereunder, as follows: (a) any reporting, distribution, or other obligation of the Group Trust vis-a-vis any Deferred Compensation Plan, Qualified Plan, Public Employer, Public Employer Trustee, or Employer Trust shall be deemed satisfied to the extent that such obligation is undertaken by the ICMA Retirement Trust (in which case the obligation of the Group Trust shall run to the lCMA Retirement Trust); and (b) all provisions dealing with the number, qualification, election, term and nomination of Trustees shall not apply, and all other provisions relating to trustees (including, but not limited to, resignation and removal) shall be interpreted in a manner consistent with the appointment of a single corporate trustee. 2. Compliance with Revenue Procedure 81-100. The requirements of Revenue Procedure 81-100 are applicable to the Group Trust as follows: (a) Pursuant to the terms of this Group Trust Agreement and Article X of the By-Laws, investment in the Group Trust is limited to assets of Deferred Compensation and Qualified Plans, investing through the ICMA Retirement Trust. (b) Pursuant to the By-Laws, the Group Trust is adopted as a parr of each Qualified Plan that invests herein through the ICMA Retirement Trust. (c) In accord with the By-Laws, that part of the Group Trust's corpus or income which equitably belongs to any Deferred Compensation and Qualified Plan may not be used for or diverted to any purposes other than for the exclusive benefit of the Plan's employees or their beneficiaries who are entitled to benefits under such Plan.e 1 (d) In accord with the By-Laws, no Deferred Compensation Plan or Qualified Plan may assign any or part of its equity or interest in the Group Trust, and any purported assignment of such equity or interest shall be void. 3. Governing Law. Except as otherwise required by federal, state or locallaw, this Declaration of Trust (including the ICMA Declaration to the extent incorporated herein) and the Group Trust created hereunder shall be construed and determined in accordance with applicable laws of the State of New Hampshire. 4. Judicial Proceedings. The Trustee may at any time initiate an action or proceeding in the appropriate state or federal courts within or outside the state of New Hampshire for the settlement of its accounts or for the determination of any question of construction which may arise or for instructions. IN WITNESS WHEREOF, the Trustee has executed this Declaration of Trust as of the day and year first above written. VANTAGETRUST COMPANY By: et l,l~ Name: Paul F. Gallagher Title: Assistant Secretary 2 THIS PAGE INTENTIONALLY LEFT BLANK 3 December 22, 2006 Joseph E. Cas sa Pension Board President City of Wheat Ridge 7500 W. 29th Avenue Wheat Ridge, CO 80033 RE: City of Wheat Ridge - ICMA-RC Plan Number 106104 Thank you for your letter of intent to adopt the ICMA-RC 401 Governmental Money Purchase Plan & Trust. Upon official notification, ICMA-RC will administer the plan in accordance with the current beneficiary designation provision provided in sections 8.01 & 8.02 of the City of Wheat Ridge Police Department Money Purchase Pension Plan. Please forward the final board resolution or affirmative statement to the ICMA-RC New Business Unit. Please contact me directly at (800) 735-7103 ext. 8098 should you have further questions regarding this matter. Sincerely, Kecia Kelley New Business Unit Sepervisor ATTACHMENT 3 The City of Wheat Ridge Money Purchase Plan for Designated Police Department Employees 7500 West 29th Avenue Wheat Ridge, CO 80033 November 14, 2006 Emily Knox ICMA - RC 1120 Lincoln Street, Suite 709 Denver, CO 80203 Re: Adoption of ICMA-RC Prototype Dear Emily: Subject to the below modification, it is the intention ofthe City of Wheat Ridge Police Department to adopt the ICMA-RC 401 Governmental Money Purchase Plan & Trust Basic Document, provided 65% of the plan's current plan participants approve such adoption. The'ICMA prototype document at Section 2.04 provides that if no "designated Beneficiary survives the Participant or no Beneficiary is otherwise designated by the Participant, the Participant's Beneficiary shall be hislher surviving spouse or, if none, his/her estate." The City of Wheat Ridge Police Department's current plan at Section 8.02, provides: 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 surviving parents, in equal shares; or (d) The Participant's estate. If the Beneficiary does not predecease the Participant, but dies prior to distribution of the Participant's entire Nonforfeitable Benefit, the Trustees will pay the remaining Nonforfeitable Accrued Benefit to the Beneficiary's estate unless the Participant's Beneficiary designation provides othetwise. The Board shall direct the Trustees as to the method and to whom the Trustees shall make payment under this Section 8.02. We understand that ICMA-RC is willing to administer the City of Wheat Ridge Police Department 401 Governmental Money Purchase Plan in accordance with the plan's current beneficiary designation provision, and further understand this change will not remove the plan from prototype status. If there is anything else you need regarding this matter, please do not hesitate to call. Best Regards, Joseph E. Cassa Pension Board President cc: Rebecca L. Hudson, Esq. Sheldon H. Smith, Esq. RESOLUTION 01 - SERIES OF 2007 TITLE: A RESOLUTION APPROVING THE ADOPTION OF THE AMENDED AND RESTATED CITY OF WHEAT RIDGE MONEY PURCHASE PENSION PLAN FOR DESIGNATED POLICE DEPARTMENT EMPLOYEES FOR THE PURPOSE OF STREAMLINING THE PLAN DOCUMENT, REMOVING INCONSISTENCIES AND PLAN PROVISIONS NOT APPLICABLE TO GOVERNMENTAL PENSION PLANS, PERMITTING ADDITIONAL FLEXIBILITY IN PLAN OPERATION AND REDUCING FUTURE COSTS TO MAINTAIN THE PLAN'S TAX-QUALIFIED STATUS. WHEREAS, the City of Wheat Ridge Police Department (the "City of Wheat Ridge") originally established the Pension Plan for Designated Police Department Employees of the City (the "Plan") effective as of October 1, 1981; and WHEREAS, the City of Wheat Ridge amended and restated the Plan effective as of January 1, 1987, and subsequently amended and restated the Plan effective as of January 1,2006 as the City of Wheat Ridge Money Purchase Pension Plan for Designated Police Department Employees (the "Amended Plan"); and WHEREAS, the Plan's Pension Board (the "Board") has determined that it is in the best interest of the City of Wheat Ridge and the City of Wheat Ridge employees to amend the Plan to take into account certain necessary and desirable design changes, to remove Plan provisions inapplicable to governmental pension plans, to remove inconsistencies and clarify various Plan provisions, to adopt a prototype plan document to add flexibility in Plan operation and decrease costs associated with keeping the Plan current for necessary and desirable tax-qualification changes, and to restate the Plan to incorporate these changes; and WHEREAS, the City of Wheat Ridge is authorized to amend the Plan pursuant to Section 13.02 ofthe Amended Plan. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WHEAT RIDGE THAT: 1. Effective as of January 1, 2007 the City of Wheat Ridge Money Purchase Pension Plan for Designated Police Department Employees (Amended and Restated Effective January 1, 2007) (the "Amended and Restated Plan") is hereby approved and adopted. ATTACHMENT 4 2. The City Manager is hereby authorized to execute the Amended and Restated Plan and that the proper officer or officers of the City of Wheat Ridge be and they hereby are authorized to do all other acts and things necessary and proper to keep the Amended and Restated Plan and its Trust in full force and effect and to make such further amendments and changes, if any, as may be necessary to maintain the qualification of the Plan and its Trust under the applicable sections of the Internal Revenue Code of 1986 (the "Code"), as amended from time to time. 3. The proper officer or officers ofthe Board are hereby authorized to submit the Amended and Restated Plan and this resolution to the appropriate District Director of the Internal Revenue Service in support of a request for a favorable determination letter that the Plan and the Trust continue to qualify under Sections 401(a) and 501(a) of the Code. 4. An announcement shall be made to all employees covered by the Plan concerning the adoption of the Amended and Restated Plan. No further actions are hereby consented to or taken. DONE AND RESOLVED at a meeting of the City Council of the City of Wheat Ridge, Colorado on the 8th day of January, 2007. \ Jerry DiTullio, Mayor ATTEST: Christa Jones, Acting City Clerk 2 ITEM NO: 3, REQUEST FOR CITY COUNCIL ACTION COUNCIL MEETING DATE: January 8,2007 TITLE: RESOLUTION 02-2007 - A RESOLUTION APPROVING AN INTERGOVERNMENTAL AGREEMENT (IGA) BETWEEN THE CITY OF WHEAT RIDGE AND THE JEFFERSON COUNTY EMERGENCY TELEPHONE SERVICE AUTHORITY (JCETSA) FOR THE IMPLEMENTATION AND MAINTENANCE OF A GEOGRAPHIC INFORMATION SYSTEM (GIS) REGIONAL MAPPING PROJECT D PUBLIC HEARING D BIDS/MOTIONS [gI RESOLUTIONS D ORDINANCES FOR 1 ST READING (Date: D ORDINANCES FOR 2ND READING ) Quasi-Judicial: D Yes [gI No ~11Jt;;:;::e ~CQ. '\rq. Randy Y our4" City MaI1fger EXECUTIVE SUMMARY: In 2006, the Jefferson County Emergency Telephone Service Authority (JCETSA) approved funding for the implementation and maintenance of a Geographic Information System (GIS) Regional Mapping Project for utilization by the ten (10) E-9ll Public Safety Answering Points (PSAP's) within Jefferson and Broomfield counties. Each PSAP possesses the data that will be utilized in the development and maintenance of the Regional Map and Map Database. The attached Intergovernmental Agreement (IGA) between the JCETSA and Member PSAP's governs the sharing of data utilized in the Regional Map and Map Database. COMMISSION/BOARD RECOMMENDATION:. N/A STATEMENT OF THE ISSUES:, JCETSA has contracted with GeoComm Inc., through an RFP process to develop, implement and maintain a Jefferson/Broomfield County Regional Map and Map Database to be utilized for E-911 response by Public Safety Agencies. Each of the participating agencies that staff public safety communications centers will have the regional map available to them in their dispatch centers, and all police and fire response vehicles will have the option of utilizing the regional map in a mobile application. The map data is being developed based on current data existing within each jurisdiction in the county. Since Wheat Ridge does not currently staff a GIS component, data was provided for us by Jefferson County and will be updated as needed once our GIS component becomes operational. The integrity of the map data is very important to E-911; therefore, each member PSAP will have to insure the data is correct and new data upgraded with GeoComm on a regular basis. For this reason, a schedule has been implemented for the PSAPs to submit data to GeoComm on a montWy basis. Once the data is incorporated into the regional map by GeoComm, it will be sent back to all the PSAPs to download into their regional maps. ALTERNATIVES CONSIDERED: 1. Do not participate in the JCETSA process to develop and implement a GIS regional map. 2. Participate in the JCETSA process to develop and implement a GIS regional map for use by all E- 911 Public Safety Answering Points. FINANCIAL IMPACT: JCETSA assumes financial responsibility for developing and maintaining the Jefferson/Broomfield County GIS Regional Map, training for PSAP personnel by GeoComm and equipment hardware required by GeoComm, authorized and approved by the Jefferson County Emergency Telephone Authority Board (JCETSAB). RECOMMENDED MOTION: "I move to approve Resolution 02-2007 - A Resolution Approving an Intergovernmental Agreement (IGA) Between the City of Wheat Ridge and the Jefferson County Emergency Telephone Service Authority (JCETSA) for the Implementation and Maintenance of a Geographic Information System (GIS) Regional Mapping Project. "I further move to authorize the City Attorney to work directly with the 911 Authority Board to approve any necessary revisions agreed upon by all parties involved." or, "I move to table indefinitely Resolution 02-2007 - A Resolution Approving an Intergovernmental Agreement (lGA) Between the City of Wheat Ridge and the Jefferson County Emergency Telephone Service Authority (JCETSA) for the Implementation and Maintenance of a Geographic Information System (GIS) Regional Mapping Project, for the following reason(s) " Report Prepared by: Larry Stodden, Communications Center Reviewed by: Daniel Brennan, Chief of Police Attachments: 1. Intergovernmental Agreement 2. Resolution 02-2007 070108 CAF E911 GIS IGA.doc INTERGOVERNMENT AL AGREEMENT CONCERNING THE IMPLEMENT A nON OF A GEOGRAPHIC INFORMATION SYSTEM REGIONAL MAP FOR JEFFERSON AND BROOMFIELD COUNTIES THIS INTERGOVERNMENTAL AGREEMENT CONCERNING THE IMPLEMENTATION OF A GEOGRAPHIC INFORMATION SYSTEM REGIONAL MAP FOR JEFFERSON AND BROOMFIELD COUNTIES (this "Agreement") is entered into this _ day of , 200_ (the "Effective Date") by Jefferson County Emergency Telephone Service Authority ("JCETSA"), a governmental entity established pursuant to C.R.S. S 29-1-204, and the following members of JCETSA: the City of Arvada, the City of Golden, the City of Lakewood, the City of Wheat Ridge, the City and County of Broomfield, and the City of Westminster, each of which is a Colorado municipal corporation; the Arvada Fire Protection District, Evergreen Fire Protection District, West Metro Fire Protection District, each of which is a Colorado special district organized pursuant to Title 32, C.R.S.; and Jefferson County, a political subdivision of the State of Colorado. Hereinafter the JCETSA members listed above may be referred to collectively as the "Members" or "Parties" or individually as "Member". REelT ALS A. Pursuant to c.R.S. S 29-11-100.5 et seq. the Members have the authority to spend funds collected from the 9-1-1 emergency telephone charge (the "Funds") on costs directly related to the continued operation of the emergency telephone service and the emergency notification service ("911 Services"). The Members, along with other municipalities and special districts which are not yet Party's to this Agreement, formed JCETSA by intergovernmental agreement dated (the "JCETSA IGA"), and delegated their authority concerning the collection of the Funds and their expenditure on 9-1-1 Services to JCETSA; and B. JCETSA has determined that there is a need for implementing within Jefferson and Broomfield Counties a Geographic Information System Regional Map ("Jefferson County GIS Regional Map") and database (the "Jefferson County GIS Regional Map Database"); and C. JCETSA has contracted with GeoComm, Inc. ("GeoComm") to develop, provide, and maintain the Jefferson County GIS Regional Map and the Jefferson County GIS Regional Map Database; and D. Each Member possesses the data ("Member Data") and will possess the updates to Member Data ("Update Member Data") necessary for the successful development and maintenance of the Jefferson County GIS Regional Map Database and the Jefferson County GIS Regional Map; and E. Each Member is desirous of providing such Member Data and Update Member Data for integration and incorporation of such data into the Jefferson County GIS ATTACHMENT 1 Regional Map Database and for use in the Jefferson County GIS Regional Map; and F. JCETSA is desirous of receiving such Member Data and Update Member Data for the Jefferson County GIS Regional Map Database and the Jefferson County GIS Regional Map in accordance with the terms and conditions set forth herein; NOW THEREFORE, IN CONSIDERATION OF THE PROMISES AND COVENANTS CONTAINED HEREIN, THE PARTIES AGREE AS FOLLOWS: DEFINITIONS A. "J efferson County 9-1-1 Advisory Cormnittee" means the cormnittee which manages the technical development and maintenance for all the Members within JCETSA. B. "Services" means the contractual responsibilities GeoCormn has to Jefferson County Emergency Telephone Service Authority as set forth in the "AGREEMENT CONCERNING THE IMPLEMENTATION OF A GEOGRAPHIC INFORMATION SYSTEM REGIONAL MAP FOR JEFFERSON AND BROOMFIELD COUNTY," dated June 5, 2006, as the same may be amended from time to time (the "GeoCormn Agreement"). TERM This Agreement shall remain in effect from the Effective Date until termination by JCETSA or by a Member, as set forth below. JCETSA'S RESPONSIBILITIES JCETSA agrees that it is responsible for~ A. Paying GeoCormn, or other authorized vendor, for developing, providing and maintaining the Jefferson County GIS Regional Map per the GeoCormn Agreement and for all training by GeoCormn. B. Furnishing to the Members equipment and hardware approved and authorized by JCETSAB and required by GeoComm. C. Gathering information from all other sources used to create the Jefferson County GIS Regional Map and Jefferson County GIS Regional Map Database. MEMBER RESPONSIBILITIES Each Member agrees that it is responsible for: A. Furnishing such Member Data and Update Member Data as the Member wishes to include in the Jefferson County GIS Regional Database and Jefferson County GIS 2 Regional Map of such quality so as to allow for the professional and timely performance of the Services by GeoComm; B. Providing Update Member Data to GeoComm via Internet or on CD via mail and in the format agreed to in the GeoComm Agreement; C. Making its employees available to receive training by GeoComm pursuant to the GeoComm Agreement and to, in turn, provide training to other appropriate Member employees for the Member's use of Jefferson County GIS Regional Map. Each Member will choose representatives to receive the training provided by the GeoComm. These representatives will, in turn, train the appropriate staff of such Member and the designated staff of Jefferson County fire protection districts regarding the Jefferson County GIS Regional Map software. OWNERSHIP OF PREPARED INFORMATION A. Ownership and License Grant of the Jefferson Countv GIS Regional Map Database and Jefferson Countv GIS Regional Map 1. Each Member is the exclusive owner of the Member Data and Update Member Data it provides for incorporation into the Jefferson County GIS Regional Map Database and Jefferson County GIS Regional Map. Each Member hereby grants to JCETSA the right to incorporate the data provided by the Member into the Jefferson County GIS Regional Map Database and Jefferson County GIS Regional Map. 2.. JCETSA is the exclusive owner of all right, title and interest in and to the Jefferson County GIS Regional Map Database and Jefferson County GIS Regional Map and in and to all updates, modifications and enhancements thereof for JCETSA's governmental purposes. 3. Each Member is hereby granted by JCETSA a non-exclusive, royalty-free, perpetual (except as provided otherwise herein), non-assignable and non- sublicensable license to use the Jefferson County GIS Regional Map solely for the Member's governmental purposes. 4. Each Member is hereby granted by JCETSA a non-exclusive, royalty free, perpetual (except as provided otherwise herein), non-assignable and non- sublicensable license to use the Jefferson County GIS Regional Map Database solely in conjunction with the Jefferson County GIS Regional Map and solely for the Member's governmental purposes, provided however, that the database layer comprised of the digital orthophotography product ("Product') licensed to JCETSA by the Denver Regional Council of Governments ("DRCOG") may only be used (i) as part of the GIS Regional Map or (ii) for the maintenance of the GIS Regional Map for 9-1-1 purposes. 5. JCETSA will pay for a software license from GeoComm for the software necessary to operate the GIS Regional Map for 9-1-1 purposes. However, each 3 Member who wants to use the Jefferson County GIS Regional Map or the Jefferson County GIS Regional Map Database (except for the DRCOG Product which may only be used as set forth in 3, above) for governmental non-9-1-1 purposes, must itself acquire and pay for the software and hardware necessary to operate the Jefferson County GIS Regional Map and must thereafter apply to JCETSA for the right to use the Jefferson County GIS Regional Map and Jefferson County GIS Regional Map Database for such purposes. Upon receiving such application, JCETSA will thereafter authorize and grant a non-exclusive, royalty- free, perpetual (except as provided otherwise herein), non-assignable and non-sublicensable license to Member for each such non-9-1-1 use. JCETSA will determine the version of the GIS Regional Map and the GIS Regional Map Database that may be used for such non-9-1-1 use, and Member agrees to use only such designated version for such non-9-1-1 use. 6. Members may not sell, license, sub-license or otherwise distribute or disclose Jefferson County GIS Regional Map or the Jefferson County GIS Regional Map Database to any third party (including any non-Member governmental entity), unless otherwise authorized in writing by the JCETSA Board of Directors. Any requests for a copy of or access to the Jefferson County GIS Regional Map or Jefferson County GIS Regional Map Database from a third party should be referred to the Jefferson County 9-1-1 representative B. Limited Use of Member Data and Update Member Data Subject to the terms of the confidentiality provisions, below, Eeach Member hereby grants JCETSA a non-exclusive, royalty-free, perpetual (except as provided herein), non-assignable and non-sub licensable license to use the Member Data and Update Member Data provided by the Member solely to integrate and incorporate such data into the Jefferson County GIS Regional Map and the Jefferson County GIS Regional Map Database. EOUIPMENT/HARDW ARE A. JCETSA will pay for equipment and hardware required by each Member to operate and maintain the Jefferson County GIS Regional Map B. Each Member will allow GeoComm access to its facilities to assess the equipment and hardware needed to install, operate and maintain the Jefferson County GIS Regional Map. C. Each Member will provide space for the equipment and hardware needed to install, operate and maintain the Jefferson County GIS Regional Map. CONFIDENTIALITY A. All Parties will keep confidential the Member Data and Update Member Data, and any information relating to the Jefferson County GIS Regional Map Database and Jefferson County GIS Regional Map that is marked "confidential" or 4 "proprietary" or with some other similar legend, and will instruct its employees, agents and representatives who require access to such information, to keep such information confidential, and will further instruct its employees, agents and representatives to use the same degree of care and discretion that they use with respect to their own information of like sensitivity. Upon prior written notice to the affected Party, the Parties may make such disclosures as required by the Colorado Open Records Act, C.R.S. S 24-72-101, et seq., and as otherwise required by law, including an order of a court of competent jurisdiction. No violation of this provision shall be found to have occurred if such disclosure was made in good faith by an employee of a Party. B. The Members shall not decompile or reverse engineer the software containing the Jefferson County GIS Regional Map Database. TERMINATION A. JCETSA reserves the right to terminate this Agreement with a Member at any time (1) upon termination of the Agreement with GeoComm or other authorized vendor; or (2) for material breach of this Agreement by a Member, which breach is not cured within fifteen (15) days after such Member receives notification of such breach by JCETSA. Each Member has the right to terminate this Agreement as it relates to such Member upon the Member's withdrawal as a Member of JCETSA pursuant to the terms of the JCETSA IGA. Upon termination and request of JCETSA, each affected Member will immediately cease to use the Jefferson County GIS Regional Map Database and Jefferson County GIS Regional Map and will return to the Jefferson County 9-1-1 Advisory Committee all copies and/or versions of the Jefferson County GIS Regional Map Database and Jefferson County GIS Regional Map in its possession, custody or control [NOTE: While it's unlikely that any Member will actually want to withdraw from the Agreement, it's possible - especially for Broomfield, I would guess.] GENERAL TERMS AND CONDITIONS A. AssiQl11llent. No assignment is permitted unless authorized in writing by the JCETSA Board of Directors. All successors in interest of a Party shall be bound by this Agreement. B. No Use bv Non-Members. Any member of JCETSA not identified in this Agreement as a Member must execute this Agreement before such member will be licensed and authorized to use the Jefferson County GIS Regional Map Database or the Jefferson County GIS Regional Map. C. Dispute Resolution. In the event of a dispute, all effected parties will meet in good faith to solve the dispute. In the event this process is not successful, all avenues provided by law or equity will be available. 5 D. Amendments. This Agreement may be amended or modified only by a written instrument signed by authorized representatives of all Parties. E. No Third Partv Beneficiarv. This Agreement is for the benefit of the Parties and their successors and permitted assigns, and nothing in this Agreement gives or should be construed to give any legal or equitable rights under this Agreement to any person or entity, other than (i) the successors and assigns ofthe Parties F. No Waiver. The failure of a party in anyone or more instances to insist upon strict performance of any of the terms and provisions of this Agreement, or to exercise any option herein conferred shall not be construed as a waiver or relinquishment, to any extent, of the right to assert or rely upon any such terms, provisions or options on any future occasion. No provision of the Agreement shall be deemed waived, unless such waiver is made in writing and signed by a majority of the parties. G. Severability. If any of the provisions of this Agreement shall be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable the entire Agreement but rather the entire Agreement shall be construed as if not containing the particular invalid or unenforceable provision or provisions, and the rights and obligations of the party shall be construed and enforced accordingly to effectuate the essential intent and purposes of this Agreement. H. Governing Law and Venue. This Agreement shall be construed in accordance with, and its performance governed by, the laws of the State of Colorado. Any legal action concerning the provisions hereof shall be brought in Jefferson County, Colorado. 1. Survival. The provisions of this Agreement that, by their sense and context, are intended to survive performance by the Parties shall also survive the completion, expiration, termination or cancellation of this Agreement. J. Indemnification. To the extent permitted by law, including the Colorado Revised Statutes and the Constitution of the State of Colorado, each Member agrees to indemnify and hold JCETSA, and its officers, agents, partners and employees harmless from any claim or demand of any third party, including reasonable attorneys' fees, arising out of such Member's access to or use of the Jefferson County GIS Regional Map Database and/or the Jefferson County GIS Regional Map. K. Execution in Counterparts. This Agreement may be executed in one or more counterparts, including by facsimile, which will be effective as original agreements of the Parties executing the counterpart. L. Governmental Immunitv. The Members, their officers, and their employees, are relying on, and do not waive or intend to waive by any provision of this Agreement, the monetary limitations (presently one hundred fifty thousand dollars 6 ($150,000) per person and six hundred thousand dollars ($600,000) per occurrence) or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, C.R.S. S 24-10-101, et seq., as amended, or otherwise available to the Members and their officers or employees. M. No Multinle Fiscal Year Obligation. Because the Members have no obligation to make financial contributions to JCETSA or any other third party under the terms of this Agreement, nothing herein shall constitute a multiple fiscal year obligation pursuant to Colorado Constitution, Article X, Section 20. IN WITNESS WHEREOF, the parties have authorized and caused their duly authorized representatives to sign this AGREEMENT CONCERNING THE IMPLEMENTATION OF A GEOGRAPHIC INFORMATION SYSTEM REGIONAL MAP FOR JEFFERSON AND BROOMFIELD COUNTIES as of the date first stated above. Jefferson County Emergency Telephone Service Authority By: Its: City of Arvada By: Its: City of Golden By: Its: City of Lakewood By: Its: City of Wheat Ridge By: Its: City of Westminster By: Its: City and County of Broomfield By: Its: Jefferson County By: Its: Arvada Fire Protection District By: Its: Evergreen Fire Protection District By: Its: West Metro Fire Protection District By: Its: 7 RESOLUTION 02 Series of 2007 TITLE: A RESOLUTION APPROVING AN INTERGOVERNMENTAL AGREEMENT (IGA) BETWEEN THE CITY OF WHEAT RIDGE AND THE JEFFERSON COUNTY EMERGENCY TELEPHONE SERVICE AUTHORITY (JCETSA) FOR THE IMPLEMENTATION AND MAINTENANCE OF A GEOGRAPHIC INFORMATION SYSTEM (GIS) REGIONAL MAPPING PROJECT. WHEREAS, in 2006 the Jefferson County Emergency Telephone Service Authority (JCETSA) approved funding for the implementation and maintenance of a Geographic Information System (GIS) Regional Mapping Project for utilization by the ten E-911 Public Safety Answering Points (PSAP's) within Jefferson and Broomfield counties. WHEREAS, each PSAP possesses the data that will be utilized in the development and maintenance of the regional map and map database. WHEREAS, JCETSA assumes financial responsibility for developing and maintaining the Jefferson/Broomfield County GIS Regional Map, training for PSAP personnel by GeoComm and equipment hardware required by GeoComm, authorized and approved by the Jefferson County Emergency Telephone Authority Board (JCETSAB). WHEREAS, the Jefferson/Broomfield County Regional Map and Map Database will be utilized for E-911 response by Public Safety Agencies, including the City of Wheat Ridge, providing an efficient response for the protection of the community. NOW THEREFORE BE IT RESOLVED by the City Council of the City of Wheat Ridge, Colorado, as follows: The Mayor and City Clerk are hereby authorized and empowered to execute the Intergovernmental Agreement between the City of Wheat Ridge and the Jefferson County Emergency Telephone Service Authority concerning the implementation and maintenance of a Geographic Information System Regional Map for Jefferson and Broomfield County. DONE AND RESOLVED THIS 8th day of January 2007. Jerry DiTullio, Mayor ATTEST: Christa Jones, Acting City Clerk ATTACHMENT 2 ITEM NO: Lr, REQUEST FOR CITY COUNCIL ACTION COUNCIL MEETING DATE: January 8,2007 TITLE: RESOLUTION 03-2007 - A RESOLUTION APPROVING A FREQUENCY RECONFIGURATION AGREEMENT BETWEEN THE CITY OF WHEAT RIDGE, THE CITY OF LAKEWOOD AND NEXTEL WEST CORPORATION TO RECONFIGURE THE 800 MHZ BAND TO MINIMIZE HARMFUL INTERFERENCE TO PUBLIC SAFETY RADIO COMMUNICATIONS SYSTEMS IN THE BAND ("RECONFIGURATION") D PUBLIC HEARING D BIDS/MOTIONS [g] RESOLUTIONS D ORDINANCES FOR 1 ST READING (Date: D ORDINANCES FOR 2ND READING ) Quasi-Judicial: D Yes [g] No yvJ~ aniel B/erufan, Chief of Police Randy Yo g, Cit~ger EXECUTIVE SUMMARY: On August 6,2004, the Federal Communications Commission ("FCC") issued a Report and Order that modified its rules governing the 800 MHz band. The purpose of the Order was to reconfigure the 800 MHz band to minimize harmful interference to public safety radio communications systems in the band ("Reconfiguration"). On December 22, 2004, the FCC issued a Supplemental Order and Order on Reconsideration. The August 6, 2004 and December 22, 2004 FCC orders, and any supplemental FCC Orders in the Reconfiguration proceeding or subsequent actions after the date of this Agreement, are collectively referred to as the "Order." Pursuant to the Order, Incumbents and Nextel are licensed on frequency allocations subject to Reconfiguration. Pursuant to the Order, Nextel will pay Incumbents an amount to effect a Reconfiguration of Incumbents' affected frequency allocations ("Reconfiguration Cost"). Incumbents will certify to the Transition Administrator appointed pursuant to the Order (the "Transition Administrator") that the Reconfiguration Cost is the minimum amount necessary to provide comparable facilities. This IGA is required to meet the legal obligations of the order and allow for reimbursement for the cost of rebanding. This agreement requires relinquislunent of current frequencies in order to receive replacement frequencies. Any costs incurred will be reimbursed by Nextel West Corporation. COMMISSION/BOARD RECOMMENDATION: N/A STATEMENT OF THE ISSUES: Nextel and Law Enforcement Agencies are both currently operating cellular phones and emergency public radios in the 800 MHz band. This has caused continual interference between the systems. The Federal Communications Commission issued a report and order in 2006 amending its rules for the 800 MHz band. The result was that Nextel Corporation would reimburse governmental entities for the cost of moving radio systems to the 400 MHz band and thereby eliminating the interference. A Frequency Reconfiguration Agreement between the City of Wheat Ridge, the City of Lake wood and Nextel West Corporation to reconfigure the 800 MHz band, to minimize harmful interference, is required to meet the legal obligations of the order and to allow the City of Lakewood to receive reimbursement for the cost of rebanding. This agreement requires the City of Wheat Ridge and the City of Lakewood to relinquish their frequencies and who will in turn receive replacement frequencies. Any costs incurred by the City of Wheat Ridge and the City of Lakewood will be reimbursed by Nextel West Corporation. ALTERNATIVES CONSIDERED: 1. Do not participate in the Frequency Reconfiguration Agreement. This alternative is not recommended due to the issues posed by frequency interference and the federal process to resolve these issues. 2. Approve the Frequency Reconfiguration Agreement. City staff recommends this alternative. FINANCIAL IMPACT: Currently, the City of Wheat Ridge and Lakewood have an intergovernmental agreement in which they share the same radio system and that Lakewood Police Department services that system. The costs for rebanding will be primarily incurred by the City of Lakewood and any reimbursements will be paid to Lakewood. There is no expected cost to the City of Wheat Ridge. RECOMMENDED MOTION: "I move to approved Resolution 03-2007 - A Resolution Approving a Frequency Reconfiguration Agreement Between the City of Wheat Ridge, the City of Lakewood and N extel West Corporation to Reconfigure the 800 MHz Band to Minimize Harmful Interference to Public Safety Radio Communications Systems in the Band ("Reconfiguration")." or, "I move to table indefinitely Resolution 03-2007 ~ A Resolution Approving a Frequency Reconfiguration Agreement Between the City of Wheat Ridge, the City of Lake wood and Nextel West Corporation to Reconfigure the 800 MHz Band to Minimize Harmful Interference to Public Safety Radio Communications Systems in the Band ("Reconfiguration"), for the following reason( s) " Report Prepared by: Wade Hammond, Commander Reviewed by: Daniel Brennan, Chief of Police WH Attachments: 1. Frequency Reconfiguration Agreement 2. Resolution 03-2007 cc: Steve Kabelis, Lakewood Police Department 070108 Frequency Reconfiguration Agreement CAF,doc FREQUENCY RECONFIGURATION AGREEMENT TIllS FREQUENCY RECONFIGURATION AGREEMENT (this "Agreement") is made as of this day of , 2007 ("Effective Date"), by and between the Cities of Lakewood and Wheat Ridge, Colorado, each a political subdivision of the State of Colorado (each is referred to in this Agreement as an "Incumbent" and together as "Incumbents"), and Nextel West Corp. ("Nextel"), a wholly owned indirect subsidiary of Nextel Communications, Inc" a Delaware corporation (each is referred to in this Agreement as a "Party" and collectively as the "Parties"). RECITALS A. On August 6, 2004, the Federal Communications Conunission ("FCC") issued a Report and Order that modified its rules governing the 800 MHz band. The purpose of the Order was to reconfigure the 800 MHz band to minimize harmful interference to public safety radio communications systems in the band ("Reconfiguration"). B. On December 22,2004, the FCC issued a Supplemental Order and Order on Reconsideration. The August 6, 2004 and December 22, 2004 FCC orders, and any supplemental FCC Orders in the Reconfiguration proceeding or subsequent actions after the date of this Agreement, are collectively referred to as the "Order." C. Pursuant to the Order, Incumbents and Nextel are licensed on frequency allocations subject to Reconfiguration. D. Pursuant to the Order, Nextel will pay Incumbents an amount to effect a Reconfiguration of Incumbents' affected frequency allocations ("Reconfiguration Cost"). Incumbents will certify to the Transition Administrator appointed pursuant to the Order (the "Transition Administrator") that the Reconfiguration Cost is the minimum amount necessary to provide comparable facilities. FOR GOOD AND VALUABLE CONSIDERATION, THE RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED, THE PARTIES AGREE AS FOLLOWS: AGREEMENT 1. Freauencies to be Reconfi~ured: Incumbents are the licensees under the licensees) granted by the FCC identified in Schedule A (the "Incumbent Licenses") for the operation of certain 800 MHz frequencies at the locations identified on Schedule A (the "Incumbent Frequencies"). Nextel, including its subsidiaries or affiliates, is the licensee under licensees) granted by the FCC (the "Nextel Licenses") for the operation of Specialized Mobile Radio ("SMR") systems on the frequencies and at the locations identified in Schedule B (the "Replacement Frequencies"). Pursuant to the Order, Incumbents must relinquish the Incumbent Frequencies and relocate their system to the Replacement Frequencies. 2. Freauencv Reconfit!Uration Process: (a) On or before the Closing Date (as defmed below) (i) Nextel or either Incumbent will cause the modification of the Incumbent Licenses to add the Replacement Frequencies or Nextel will cause the creation of a new FCC licenses for Incumbents that include the Replacement Frequencies; (ii) Incumbents will cause the assignment of the Incumbent Frequencies to Nextel or will cause the deletion of the Incumbent Frequencies from the Incumbent Licenses following Reconfiguration of Incumbents' system; and (iii) Nextel will cause the modification and/or cancellation of the FCC licenses it holds for the operation of 800 MHz frequencies that are co-channels of the Replacement Frequencies, to the extent required to meet A TT AcRMENT 1 the technical short-spacing requirements of Section 90.621 (b) of the FCC's Rules, 47 C.F.R. ~ 90.621(b), as such rule may be amended from time to time by the FCC. (b) The parties agree that Nextel and the Licensee (as appropriate) will make the FCC assignment filings for the Replacement Frequencies on a future date to be determined by the parties through mutual agreement. The Parties agree to notify Nextel and the Licensee (as appropriate) of the FCC assignment filings in accordance with the Notice provision of this Agreement. 3. Reconfif!uration Costs: (a) Acknowledgement of Obligations. Incumbents agree that: (i) the cost estimate set forth in Schedule C (the "Cost Estimate") sets forth all of the work required to reconfigure Incumbents' existing facilities to comparable facilities that will operate on the Replacement Frequencies; (ii) all costs incurred for internal labor as identified on the Cost Estimate must be consistent with the Transition Administrator Incumbent Internal Labor Rate Reimbursement Policy as set forth at www.800TA.org; (iii) after all of the work contemplated by the Cost Estimate has been performed in accordance with this Agreement and Nextel has paid all amounts required by this Agreement, the Incumbents' reconfigured system shall be deemed for all purposes of the Order to be "comparable" to Incumbents' existing system prior to Reconfiguration, and Nextel shall be deemed to have satisfied its obligations under the Order to pay the cost of relocating Incumbents' system from the Incumbent Frequencies to the Replacement Frequencies. (b) Pavment Terms. In order to facilitate the Incumbents' transition to the Replacement Frequencies, Nextel will pay the costs incurred to reconfigure Incumbents' system in an amount not to exceed the Cost Estimate, except as modified pursuant to Section 3(b)(iii) and Section 8, of this Agreement, Nextel will pay the amount of the Cost Estimate in accordance with the payment terms identified on Schedule C and as set forth below for both payments made directly to Incumbents and payments made on behalf of Incumbents directly to each third party service vendor identified on the Cost Estimate ("Vendor"). (i) Prior to the Closing Date, Incumbents will submit to Nextel documentation (including without limitation invoices, receipts, and time sheets or equivalent documentation) demonstrating the actual costs that Incumbents reasonably incurred or paid to other entities to reconflgure Incumbents' system ("Actual Costs"). Upon receipt by Nextel of documentation of the Actual Costs, Nextel and Incumbents will reconcile the Actual Costs against the payments made by Nextel to Incumbents and the Parties will agree upon the amount of any additional payments (subject to Section 8) due to Incumbents or any refunds due to Nextel. (The effective date of agreement on reconciliation and signing of the Closing documents is the "Reconciliation Date".) Should the parties be unable to agree upon the amount of the additional payments, the parties shall follow the resolution procedures detailed in the FCC Order. (ii) Any additional payments due to Incumbents from Nextel will be disbursed to Incumbents within thirty (30) days of the Reconciliation Date, provided the additional payments do not result from Actual Costs that exceed the Cost Estimate (in which case the provisions of Section 3(b )(iii) of this Agreement will apply). Any refunds due from the Incumbents to Nextel will be made within thirty (30) days of the Reconciliation Date. (iii) In the event Incumbents' Actual Costs exceed the Cost Estimate, Incumbents must submit a Change Notice pursuant to Section 8 of this Agreement describing the change in scope of work Page 2 of 20 that resulted in Incumbents' Actual Costs exceeding the Cost Estimate. Approval of any Change Notice will not be automatic but will be processed in accordance with Section 8 of this Agreement. Additional payments due to Incumbents, which result from an excess of Actual Costs over the Cost Estimate, as agreed on the Reconciliation Date, will be disbursed to Incumbents within thirty (30) days of the Transition Administrator's approval of a Change Notice. (iv) Prior to the Closing Date, Nextel will pay on behalf of itself and Incumbents, the Parties' applicable sales and transfer taxes, if any, and all FCC fees in connection with the preparation and filing of the necessary FCC applications for the assignment(s) described in Section 2 of this Agreement. 4. Reconfif!uration Eouinment. If needed in order to facilitate the Incumbents' transition to the Replacement Frequencies, Nextel will loan any equipment identified in Schedule D as "Loaned Reconfiguration Equipment". Nexte1 will deliver any Loaned Reconfiguration Equipment to Incumbent in accordance with Schedule D. Any Loaned Reconfiguration Equipment will be returned to Nextel by Incumbent prior to the Closing Date. 5. Retuninf! Cooneration: Nextel will ensure that the Replacement Frequencies will be cleared of all users within thirty (30) days of a date to be determined. Nextel will notifY Incumbents of the decommissioning of the Replacement Frequencies within five (5) days following completion of the decommissioning. Incumbents will then have sixty (60) days following receipt of notice of the decommissioning of the Replacement Frequencies to clear all users from the Incumbent Frequencies. Incumbents will notify NexteI that Incumbents have cleared the Incumbent Frequencies of users within five (5) days following the clearing. 6. Reoresentations and Warranties: Each Party represents and warrants to the other as follows: (a) it is duly organized, validly existing and in good standing under the laws of the state of its incorporation; (b) this Agreement has been duly authorized and approved by all required organizational action of the Party; (c) neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will conflict with, or result in any material violation or default under, any term of its articles of incorporation, by-laws or other organizational documents or any agreement, mortgage, indenture, license, permit, lease, encumbrance or other instrument, judgment, decree, order, law or regulation by which it is bound; (d) it is the lawful and exclusive FCC licensee of its respective licensees) described in this Agreement, such licenses are valid and in good standing with the FCC, and it has the authority to request the FCC to assign, modify or cancel such licenses; (e) there is no pending or threatened action or claim that would have the possible effect of enjoining or preventing the consummation of this Agreement or awarding a third party damages on account of this Agreement; and (f) to the best of its knowledge, all information provided to the other Party concerning the transactions contemplated by this Agreement is true and complete. All representations and warranties made in this Agreement shall survive the Closing (defined below) for two (2) years. Page 3 of 20 7. Covenants: From the Effective Date until the Closing Date (defined below), each Party will promptly notify the other Party upon becoming aware of any pending or threatened action by the FCC or any other governmental entity or third party to suspend, revoke, terminate or challenge any license described in this Agreement or to investigate the construction, operation or loading of any system authorized under such licenses. From the Effective Date until the Closing Date, Incumbents will not enter into any agreement resulting in, or otherwise cause, the encumbrance of any license for the Incumbent Frequencies, and Nextel will not enter into any agreement resulting in, or otherwise cause, the encumbrance of any of the Replacement Frequencies. 8. .Chall{!es: The Parties acknowledge that as the Reconfiguration of Incumbent's facilities proceeds in accordance with the work contemplated by the Cost Estimate, the need for changes to the scope of such work may arise. The Parties agree that their review of any such needed changes must be performed expeditiously to keep the work on schedule and that they will provide sufficient staff to manage changes. If any Party believes that a change to the work contemplated by the Cost Estimate is required (including changes by Vendors), such Party will promptly notify all other Parties in writing. Such written notice (the "Change Notice") shall set forth (i) a description ofthe scope of the change to the work contemplated by the Cost Estimate believed to be necessary and (ii) an estimate of any increase or decrease in the Cost Estimate and in the time required to reconfigure Incumbents' existing facilities to operate on the Replacement Frequencies. A Party receiving a Change Notice shall immediately perform its own analysis of the need for and scope of the change and its impact on the Cost Estimate and schedule and negotiate the change in good faith with the other Party. After the Parties have agreed upon a change to this Agreement, they shall prepare a proposed amendment to this Agreement pursuant to Section 25 and submit to the Transition Administrator a copy of the proposed amendment together with a written request for its approval. Such request shall be accompanied by reasonable documentation supporting the need for and scope of the change and any proposed increase or decrease in the Cost Estimate and in the time required to reconfigure Incumbents' existing facilities to operate on the Replacement Frequencies. Incumbents are responsible for all unauthorized changes necessary as it relates to work performed by a Vendor on behalf of Incumbents. No change to the Cost Estimate, the work contemplated by the Cost Estimate or the time required to reconfigure Incumbents' existing facilities to operate on the Replacement Frequencies shall become effective until the Transition Administrator has approved the change in writing and all Parties have signed an amendment incorporating such approved change into this Agreement pursuant to Section 25. In this regard, in the event that the Transition Administrator is unable to approve the proposed amendment within ten (10) business days, then the deadline by which the Incumbents must clear all users from the Replacement Frequencies, pursuant to Section 5, will be automatically extended by the number of days beyond ten (10) business days in which the Transition Administrator does not take [mal action to approve the proposed amendment. Should the Transition Administrator not approve the proposed amendment, any Party may appeal the decision consistent with the FCC Order, in which event the deadline in Section 5 will be extended by the number of days it takes for such appeal to be resolved. If the Parties are unable to agree on modification of this Agreement consistent with the Change Notice, any Party may request mediation consistent with the FCC Order. Once mediation has been requested, the deadline in Section 5 will be extended by the number of days it takes for all appeals to be resolved. 9. Closing: The closing ("Closing") of the transactions contemplated by this Agreement will take place within thirty (30) days after (i) FCC approval of the assignment of the Incumbent Frequencies to Nextel and/or deletion of the Incumbent Frequencies from the Incumbent Licenses, (ii) FCC approval of the modification to add the Replacement Frequencies to the Incumbent Licenses with no material conditions or the creation of a new license for Incumbents with no material conditions that includes the Replacement Frequencies, (iii) the earlier of notification by Incumbents to Nextel that the Incumbent Licenses have been decommissioned and sixty (60) days following the date Nextel notifies Incumbent that the Replacement Frequencies have been decommissioned, (iv) delivery by Incumbent of all receipts, invoices and other documentation required to substantiate the Actual Cost, (v) FCC approval of the Page 4 of 20 modification and/or cancellation of the FCC licenses Nextel holds for the operation of 800 MHz frequencies that are co-channels of the Replacement Frequencies, to the extent required to meet the technical short-spacing requirements of Section 90.621(b) of the FCC's Rules, 47 C.F.R. ~ 90.621(b), as such rule may be amended from time to time by the FCC, (vi) the refund to Nextel or payment to Incumbents as described in Section 3(b)(ii), (if applicable) and (vii) the satisfaction of all other conditions specified in this Agreement (the "Closing Date"). 10. Closinf! Conditions: Performance of each Party's Closing obligations is subject to satisfaction of the following conditions (except to the extent expressly waived in writing by the other Party): (a) the continued truth and accuracy of the other Parties' representations and warranties set forth in this Agreement; (b) all of the covenants of the other Parties described in this Agreement are performed in all material respects; and (c) execution and delivery by the other Parties of Closing documents as well as any other Closing instruments and documents any Party or its counsel may reasonably request. Incumbent will execute and deliver to Nextel a closing certification required by the Transition Administrator. (d) The Parties will cooperate in good faith and exercise their reasonable best efforts to finalize and execute these instruments and documents on or prior to the Closing Date in order to effect the Reconfiguration contemplated. II. Review Ri2hts: Incumbents agree to maintain records and other supporting evidence related to the costs that Incumbents have expended in connection with the Reconfiguration contemplated by this Agreement and that Nextel has paid or will pay to Incumbent pursuant to this Agreement. Incumbents agree to maintain such records and make them reasonably available to the Transition Administrator for review or reproduction until eighteen (18) months after the date of Incumbents' executed Completion Certification required by this Agreement or for a longer period if Incumbents, for their own purposes, retain such records for a longer period of time. As used in this provision, "records" includes books, documents, accounting procedures and practices and other data regardless of type and regardless of whether such items are in written form, in the form of computer data or in any other form. Nextel shall be responsible for all post-Closing audit expenses of the Incumbents, except those expenses resulting from fraudulent activity on behalf of the Incumbents. To the extent that any post-Closing audit determines that Nextel paid a third-party vendor more than provided for under the FCC Order, Nextel's sole remedy is to seek reimbursement directly from the third-party vendor, unless such overpayment was the result of fraud or negligence of either of the Incumbents. 12. Excluded Assets: No Assumotion of Liabilities: Nothing in this Agreement should be construed as a transfer or assignment from any Party to another Party of any assets (including FCC licenses) except as expressly set forth in this Agreement. Other than as expressly provided in this Agreement, no Party is obligated to assign and transfer to the other Party any asset, tangible or intangible, nor is any Party entitled to assume any asset, tangible or intangible. No Party is assuming, nor is any Party responsible for, any liabilities or obligations of any other Party arising out of or in connection with the other Party's licenses (or related systems and facilities) that are the subject of this Agreement. 13. Confidentiality: To the extent permitted by law, the terms of this Agreement and any proprietary, non-public information regarding the Incumbent Frequencies, Replacement Frequencies, and Nextel's business must be kept confidential by the Parties and their employees, agents, attorneys and accountants (collectively, "Agents"), which confidentiality will survive the Closing or termination of this Page 5 of 20 Agreement for a period of two (2) years. The Incumbents may make such disclosures as required by the Colorado Open Records Act, C.R.S. S 24-72-101, et seq. and the Parties may make disclosures as required by law, including an order of a court of competent jurisdiction, and to the Transition Administrator as required to perform obligations under this Agreement, provided, however, that each Party will cause all of its Agents to honor the provisions of this Section. 14. Cooperation: The Parties will cooperate with each other and the Transition Administrator with respect to the Reconfiguration work contemplated by this Agreement. Without limiting the foregoing obligations, the Parties agree to cooperate in the preparation of any applications required to be filed with the FCC, and Incumbents agree to provide reasonable access to their facilities so that the Transition Administrator may comply with any audit obligations and so any Reconfiguration work contemplated by this Agreement may be performed in accordance with the Cost Estimate and performance schedule. If a Party is subject to a denial of FCC benefits for delinquent non-tax debts owed to the FCC that would prevent or delay the timely processing of any FCC applications, such Party shall cure such delinquency in an expeditious manner and at its sole expense. 15. Indemnification: To the extent permitted by law, from and after the Closing Date, each Party (the "Indemnifying Party") will indemnify and defend the other Party, its officers, directors, employees and agents (collectively, the "Indemnified Party"), from and against all third party demands, claims, actions, losses, damages, liabilities, costs and expenses, including, without limitation, reasonable attorneys' fees and expenses (collectively, "Costs"), asserted against, imposed upon or incurred by the Indemnified Party arising from or related to: (i) any breach of any covenant, agreement, representation or warranty of the Indemnifying Party contained in, or made pursuant to, this Agreement; or (ii) any and all liabilities (including successor liabilities) or obligations relating to periods prior to the Closing Date resulting from the Indemnifying Party's operation of the system operated pursuant to the Incumbent Licenses or the Nextel Licenses, as applicable, or the ownership or use of those licenses. The obligations under this Section survive the Closing for a period of three (3) years. 16. Disputes: The Parties agree that any dispute related to the Replacement Frequencies, Nextel's obligation to pay any cost of the Reconfiguration of Incumbent's system contemplated by this Agreement, or the comparability of Incumbent's reconfigured system to Incumbent's existing system prior to Reconfiguration, which is not resolved by mutual agreement, shall be resolved in accordance with the dispute resolution provisions of the Order, including the dispute resolution procedures adopted by the Transition Administrator, as they may be amended from time to time. 17. No Gratuities: No gift, gratuity, credit, thing of value or compensation of any kind shall be offered or provided by Incumbent, directly or indirectly, to any officer, employee or official of any Party for the purpose of improperly obtaining or rewarding favorable treatment under this Agreement. 18. Liens: If any liens or security interests attach to any of Incumbent's facilities in favor of any vendor or service provider that is performing any Reconfiguration work contemplated by this Agreement as a result of Nextel's breach of any obligation to make direct payment (not in dispute) to such vendor or services provider, Nextel upon receipt of Notice from Incumbent will cooperate to remove any Liens. 19. Vendor Performance Issues: Incumbents will select and contract directly with any vendor or service provider performing work required to reconfigure the Incumbent's existing facilities to operate on the Replacement Frequencies. Neither the Transition Administrator nor Nextel will be responsible for, or assume the risk of any failure of that Vendor to perform its obligations under any contract entered into between Incumbents and such Vendor in connection with the Reconfiguration contemplated by this Agreement. 20. Reserved. Page 6 of 20 21. Termination: This Agreement may be terminated and the transactions contemplated by this Agreement abandoned: (i) by unanimous consent of the Parties provided in writing; (ii) for cause by either Nextel or Incumbents upon material breach of the other, following a thirty (30) day period for cure by the breaching Party following written notice of the breach; (iii) by Incumbents, in the event that a proposed amendment is not approved, pursuant to Section 8; or (iv) by Nextel prior to Closing in the event of any Adverse Decision affecting the Order by any governmental entity of competent jurisdiction. For purposes of this Agreement, an "Adverse Decision affecting the Order" means an order, decree, opinion, report or any other form of decision by a governmental entity of competent jurisdiction that results, in whole or part, in a stay, remand, or reversal of the Order, or otherwise in any revision to the Order that Nextel determines, in its sole discretion, to be adverse to its interests. In the event of termination, the Parties shall take all necessary action (including preparing and filing FCC documents) to return the status quo ante on the date of this Agreement. In the event of termination, Nextel shall pay all costs associated with the return to the status quo ante, as well as all Incumbents costs expended in the Agreement negotiations and implementation, except if such termination was due to an uncured material breach by either Incumbent. Should Incumbents terminate this Agreement pursuant to subsection (iii), Incumbents shall not be released of their obligations under the Order. 22. Attornev's Fees: In any legal proceeding by a Party to enforce its rights under this Agreement against any other Party or Parties, the Party prevailing in such proceeding will be entitled to recover its reasonable attorney's fees and costs from the other Party, or Parties, as applicable. 23. Notices: All notices and other communications under this Agreement must be in writing and will be deemed given (i) the same day if delivered personally or sent by facsimile; (ii) the next business day if sent by overnight delivery via a reliable express delivery service; or (iii) after five (5) business days if sent by certified mail, return receipt requested, postage prepaid. All notices are to be delivered to the Parties at the following addresses: With a copy that shall not constitute Notice: . If to Nextel, to: Nextel West Corp. c/o Nextel Communications, Inc. 2000 Edmund Halley Drive Reston, VA 20191 Attn: Heather P. Brown, Esq. Phone: (703) 433-4000 Fax: (703) 433-4483 With a copy that shall not constitute Notice: If to Incumbents, to: Steven Kabelis City of Lakewood, CO 455 South Allison Parkway Lakewood, CO 80226 Alan S. Tilles, Esquire Shulman Rogers Gandal Pordy & Ecker, P.A. 11921 Rockville Pike, Third Floor Rockville, Maryland 20852 Phone: (301) 231-0930 Fax: (301) 230-2891 Nextel Communications, Inc. 6575 The Corners Parkway Norcross, GA 30092 Attn: Julian H. Edwards, VP Spectrum Resources Phone: (678) 405-8442 Fax: (678) 405-8252 Page 7 of 20 24. Assilmment: This Agreement is binding upon and inures to the benefit of the Parties and their respective successors and permitted assigns. Any Party may assign this Agreement to any direct or indirect subsidiary or affiliate of the Party, upon delivery of written notice to the other Parties. 25. Amendments: This Agreement, including without limitation the scope of work contemplated hereby and the Estimated Cost thereof to be paid by Nextel, may be amended or modified only by a written instrument signed by authorized representatives of all Parties, orovided. however. no amendment or modification to this Agreement shall become effective until approved by the Transition Administrator, or the FCC after an adverse decision by the Transition Administrator. 26. Benefits: This Agreement is for the benefit of the Parties and their successors and permitted assigns, and nothing in this Agreement gives or should be construed to give any legal or equitable rights under this Agreement to any person or entity, other than (i) the successors and assigns of the Parties, and (ii) the Transition Administrator as specifically provided in Sections 3(b), 8,11,14,19, and 25. 27. Miscellaneous: If any provision(s) of this Agreement is held in whole or part, to be invalid, void or unlawful by any administrative agency or court of competent jurisdiction, then such provision(s) will be deemed severable from the remainder of this Agreement, will in no way affect, impair or invalidate any other provision contained in the Agreement and the Parties will use their commercially reasonable efforts to amend this Agreement to make the unlawful provision compliant with applicable law so as to preserve the rights and obligations of the Parties. No action taken pursuant to this Agreement should be deemed to constitute a waiver of compliance with any representation, warranty, covenant or agreement contained in this Agreement and will not operate or be construed as a waiver of any subsequent breach, whether of a similar or dissimilar nature. This Agreement, together with the Schedules, constitutes the entire understanding and agreement between the Parties concerning the subject matter of this Agreement, and supersedes all prior oral or written agreements or understandings. This Agreement may be executed in one or more counterparts, including by facsimile, which will be effective as original agreements of the Parties executing the counterpart. 28. Incumbent Al!encv: Incumbents agree that the City of Lakewood, CO is authorized on behalf of the City of Wheat Ridge, CO to receive all payments due to Incumbents under this Agreement. 30. Governmental Immunitv. The Incumbents, their officers, and their employees, are relying on, and do not waive or intend to waive by any provision of this Agreement, the monetary limitations (presently one hundred fifty thousand dollars ($150,000) per person and six hundred thousand dollars ($600,000) per occurrence) or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, C.R.S. S 24-10-101, et seq., as amended, or otherwise available to the Incumbents and their officers or employees. 31. No Multiole Fiscal Year Oblil!ation. Pursuant to the terms of this Agreement, Nextel will pay the costs incurred to reconfigure Incumbents' system. Thus, nothing herein shall constitute a multiple fiscal year obligation pursuant to Colorado Constitution, Article X, Section 20. 32. No Waiver. Delays in enforcement or the waiver of anyone or more defaults or breaches of this Agreement by any Party shall not constitute a waiver of any of the other terms or obligation of this Agreement. [signatures appear on following page] Page 8 of 20 In consideration of the mutual consideration set forth herein, this Agreement is effective as a legally binding agreement between the Parties upon execution by the Parties. INCUMBENTS: City of Wheat Ridge, CO NEXTEL: Nextel West Corp. By: Name: Title: By: Name: Title: CITY OF LAKEWOOD, COLORADO ATTEST: Signed: Name: Ron Bums, Chief of Police Date: APPROVED AS TO FORM: Signed: Name: Paul Kennebeck, Deputy City Attorney Date: Page 9 of 20 SCHEDULE A Incumbent Frequencies Citv of Wheat Ridge, CO Incumbent Assigns to N extel: Call Sign Licensee Lat(N) Long( City State Issue Date Frequencies W) WPIF699 CITY OF 39' 40' 105' 13' IDLE CO 07/19/2005 866.0875 WHEAT 17 A' N 8'W DALE RIDGE WPIF699 CITY OF 39' 40' 105' 13' IDLE CO 7/19/2005 866.3375 WHEAT 17A'N 8'W DALE RIDGE WPIF699 CITY OF 39' 40' 105' 13' IDLE CO 7/19/2005 86704375 WHEAT 1704' N 8'W DALE RIDGE WPIF699 CITY OF 39' 40' 105' 13' IDLE CO 7/19/2005 867.7500 WHEAT 1704' N 8'W DALE RIDGE WPIF699 CITY OF 39' 40' 105' 13' IDLE CO 7/19/2005 868.2125 WHEAT 1704' N 8'W DALE RIDGE Citv of Lakewood, CO Incumbent Assigns to Nextel: Call Sign Licensee Lat(N) Long( City State Issue Frequencies W) Date WPKl253 LAKEWOOD, 39' 41' 46' 105' 9' LAKE CO 02/28/2002 866.2500 CITY N 56'W WOOD OF WPKl253 LAKEWOOD, 39' 41' 46' 105' 9' LAKE CO 02/28/2002 866.7125 CITY N 56'W WOOD OF WPKI253 LAKEWOOD, 39' 41' 46' 105' 9' LAKE CO 02/28/2002 866.9125 CITY N 56'W WOOD OF WPKI253 LAKEWOOD, 39' 41' 46' 105' 9' LAKE CO 02/28/2002 867.2250 CITY N 56'W WOOD OF WPKl253 LAKEWOOD, 39' 41' 46' 105' 9' LAKE CO 02/28/2002 867.6875 CITY N 56'W WOOD OF Page 10 of20 WPKl253 LAKEWOOD, 39' 41' 46' 105' 9' LAKE CO 02/28/2002 867.9125 CITY N 56'W WOOD OF WPKl253 LAKEWOOD, 39' 41' 46' 105' 9' LAKE CO 02/28/2002 868.0125 CITY N 56'W WOOD OF WPKI253 LAKEWOOD, 39'41'46' 105' 9' LAKE CO 02/28/2002 868.3000 CITY N 56'W WOOD OF WPKI253 LAKEWOOD, 39' 41' 46' 105' 9' LAKE CO 02/28/2002 868.5375 CITY N 56'W WOOD OF WPKl253 LAKEWOOD, 39' 41' 46' 105' 9' LAKE CO 02/28/2002 868.7500 CITY N 56'W WOOD OF ~ SCHEDULE B Replacement Frequencies Citv of Wheat Ridge. CO Nextel Assigns to Incumbent: Replacement Lat (N) Long (W) ERP Grnd Ant Channels (w) Elev. Hgt. (MHz) (ft) (ft) 851.0875 39' 40' 17.4 105'13'8 250 7686 ft. 215 N W ft. 851.3375 39' 40' 17.4 105' 13' 8 250 7686 ft. 215 N W ft. 852.4375 39' 40' 17.4 105' 13' 8 250 7686 ft. 215 N W ft. 852.7500 39' 40' 17.4 105' 13' 8 250 7686 ft. 215 N W ft. 853.2125 39' 40' 17.4 105'13'8 250 7686 ft. 215 N W ft. Citv of Lakewood. CO Nextel Assigns to Incumbent: Replacement Channels (MHz) 851.2500 , , , Lat (N) Long (W) ERP (w) Grnd Ant Elev. Hgt. (ft) (ft) 6680 ft. 79 ft. 6680 ft. 79 ft. 120 105'9' 56 W 105'9' 56 W 39' 41' 46 N 39' 41' 46 N 120 851.7125 Page 11 of 20 New Licensee City of Wheat Ridge, CO City of Wheat Ridge, CO City of Wheat Ridge, CO City of Wheat Ridge, CO City of Wheat Ridge, CO New Licensee City of Lakewood, CO City of Lakewood, CO Comments Frequencies to call sign WPIF699 WPIF699 WPIF699 WPIF699 WPIF699 Comments Frequencies to call sign WPKl253 WPKl253 J 851.9125 39'41'46 105'9'56 120 6680 ft. 79 ft. City of WPKl253 N W Lakewood, CO 852.2250 39' 41' 46 105'9'56 120 6680 ft. 79 ft. City of WPKl253 N W Lakewood, CO 852.6875 39'41' 46 105'9'56 120 6680 ft. 79 ft. City of WPKl253 N W Lakewood, CO 852.9125 39'41'46 105'9' 56 120 6680 ft. 79 ft. City of WPKl253 N W Lakewood, CO 853.0125 39' 41' 46 105'9'56 120 6680 ft. 79 ft. City of WPKl253 N W Lakewood, CO 853.3000 39'41' 46 105'9'56 120 6680 ft. 79 ft. City of WPKl253 N W Lakewood, CO 853.5375 39'41'46 105'9' 56 120 6680 ft. 79 ft. City of WPKI253 N W Lakewood, CO 853.7500 39' 41' 46 105'9'56 120 6680 ft. 79 ft. City of WPKl253 N W Lakewood, CO Page 120[20 SCHEDULE C 800 MHZ RECONFIGURATION COST ESTIMATE - CERTIFIED REQUEST Incumbent Names: Citv of Lakewood. Colorado Citv of Wheat Rid2:e. Colorado Reauest for Reconfif!uration Fundin~ Pursuant to the Order, Incumbent is required to reconfigure its existing facilities and requests Nextel to fund the following estimated reconfiguration costs: Incumbent Payment Terms: Nextel will pay Incumbent an amount not to exceed the Estimated Cost(s) for Incumbent with respect to each category of work, as set forth below. Nextel will pay Incumbent $94,052.00 within 15 days (30 days if Incumbent elects to be paid by check rather than electronic funds transfer) after receipt by Nextel of the fully executed Agreement and fully completed Incumbent Information Form (as set forth on ]:<:xhibit A). Nextel will pay any outstanding balance of the Actual Costs due to Incumbent within 30 days after the Reconciliation Date (as "Actual Costs" and "Reconciliation Date" are defined in Section 3(b)(i)). Vendor Payment Terms: Nexte1 will pay each Vendor an amount not to exceed the Estimated Cost(s) for that Vendor with respect to each category of work, as set forth below. Nexte1 will pay each Vendor within 30 days after receipt by Nextel of (A) an invoice from the Vendor and (B) Incumbent's approval of receipt of goods and services and approval of associated costs included on the Vendor invoice. Description of Work To Be Performed Payee (separately identify Incumbent and each Vendor being paid for work performed) Estimated Cost(s) for Incumbent and each Vendor (Not to exceed listed amount) Equipment Retune Costs 4 (QTY) Fixed and Mobile Repeaters retuned ($319 per unit) (Incumbent) City Of Lakewood, Colorado 480 South Allison Parkway Lakewood, CO 80226 Steven Kabelis 303-987 -7354 $157,720 3943 (QTY) PortablelMobile Radios retuned ($40 per unit) $1,276 14 (QTY) Combiner Cavities retuned ($508 per unit) $7,112 3 (QTY) Tower Top Amplifier Pres electors retuned ($575 per unit) $1,725 Install 25 (QTY) Siren Radios ($75 per unit) $1,875 Page 13 of20 Pre & Post Reband Coverage Test ($750 per test) $1,500 II (QTY) Bi-Directional Amplifiers (Vendor) retuned. Per location breakdown Managed Communications below. Services (MCS) $31,886 3842 New Vision Drive, Fort Wayne, IN. 46845 CDOT location has 2 BDAs Contact person is Paul Prestia at needing replacement. (cannot 260-480-7885 xlii retune) 2 ISR-20-NPSPAC @ $2,312.50 ea. + 5 hrs. x $88/hr = $5,065 The Belmar and Budweiser sites both require the replacement of 1 BDA. lISR-30-NPSPAC @$3,562.50 + 3 hrs. x $88/hr = $3,826.50 x 2 locations = $7,653 Lutheran Hospital, Stevenson Toyota, West Metro Fire Station 14, Southwest Plaza Mall locations all require filter changes to retune. 89-89A-96390-03 filter kit @ $2,335 + 3hrs. X $88/hr = $2,599 x 4 locations = $10,396 West Metro Fire Admin. Bldg., Walmart and Lowes locations require a filter change to retune. 89-89A-05041-03 filter kit @ $2,660 + 3hrs. X $88/hr = $2,924 X 3 locations = $8,772 Install 1 02 (QTY) Mobile Radios ($222 per unit) $22,644 Engineering/Consulting Fees (list description of work being performed) Inventory 15BDA Sites and quote (Incumbent) $4,224 retuning of each. City Of Lakewood, Colorado ($281.60 per site) 480 South Allison Parkway Lakewood, CO 80226 Project management Steven Kabelis $12,672 Coordination of personnel, 303-987-7354 equipment inventory, Page 14 of20 . interoperability and retune planning. Scheduling vehicle installs and BDA and Transmitter site work. (264 Hours @ $48 per Hour) Legal Fees Contract negotiations Review of contract and Closing documents (35 hours @ not to exceed $400/hr) . Other Costs (provide detailed description of nature of cost) FCC Regulatory Filings 2 sets of applications Consummation Notices Rebanding deadline notices and deadline coordination (8 hours @ $175 per hr) Review Of Closing Documents Total Estimated Costs (Vendor) Shulman Rogers Gandal Pordy & Ecker, P.A 11921 Rockville Pike, Third Floor Rockville, Maryland 20852 301-231-0930 (Vendor) Shulman Rogers Gandal Pordy & Ecker, P.A 11921 Rockville Pike, Third Floor Rockville, Maryland 20852 301-231-0930 Certification $14,000 $1,400 $500 $258,534.00 Pursuant to the Order, Incumbents hereby certify to the Transition Administrator appointed pursuant to the Order that the funds requested above are the minimum necessary to provide Incumbents reconfigured facilities comparable to those presently in use. Incumbents further certify, to the best of Incumbents' knowledge, that any vendor costs listed on Schedule C are comparable to costs that vendor previously charged Incumbents for similar work. Citv of Lakewood, Colorado Signature: Print Name: Title: Phone Number: E-mail Date: Page 15 of20 Citv of Wheat Rid\!e. Colorado Signature: Print Name: Title: Phone Number: E-mail Date: Page 16 of20 City of Lakewood, CO City of Wheat Ridge, CO I) Loaned Reconfiguration Equipment Quantity Description Model Number NewlUsed 1 Combiner DB8062F5-B Used 1 Combiner DB8062F9-B Used 2) Replacement Equipment Quantity Description Model Number New/Used 248 MAlCOM M7100P MAHG-S8MXX Used mobile radios 248 Feature Package EDACS MAHG-ED Used Trunking 248 Control unit. Front MAHG-CP7U Used mount, scan 248 Microphone, mobile MAHG-MC7T Used 248 Kit, accessory, front MAHG-ZN5W Used mount 248 Feature, EDACS data MAHG-PL3X New 3) Replaced Equipment (to be delivered to Nextel prior to Closing) Quantity I 1 248 248 248 Description Combiner Combiner MAlCOM mobile radios Front mount control units Microphones Model Number DB8062F5-B DB8062F9-B MDX Scan mobile Exhibit A Incumbent Information The following questions are required for processing Electronic Funds Transfers and if Incumbent wants Nextel to complete the FCC filings on its behalf. All information contained herein shall be kept strictly confidential and will be used only in completion of the Frequency Reconfiguration transaction. I. INCUMBENT INFORMATION Please provide the following information: Company/Name: Contact: Title: Address: City/State/Zip: Phone: Fax: If not identified in the contract, please provide the following: If Incumbent is a Partnership, please provide name, address and phone numbers of all other partners: Name: Address: Name: Address: City/State/Zip: Phone: City/State/Zip: Phone: II. BANK ACCOUNT INFORMATION (Required for payment via electronic funds transfer.) Name of Bank: Address of Bank: City/State/Zip: Bank Phone #: ABA (Routing #): Account #: Name on Account: Federal, State or Individual SS #: Name of Brokerage Firm (if applicable): Brokerage Account # (if applicable): In the event Incumbent will not provide information for electronic funds transfer, Incumbent acknowledges that all payments made by check will be mailed within thirty (30) days of the date of performance required by Incumbent ( for each payment) as stipulated in the Agreement. ~ Acknowledged by Incumbent: required only if Incumbent does not want an electronic funds transfer) (signature .I Page 18 of20 III. TAX INFORMATION The Internal Revenue Service and state tax authorities require N extel to report all transactions, even if the transaction is exempt from taxation (if so, it will be reported to the IRS as a like-kind exchange). Therefore, it is necessary for Nextel to collect the information below. If you have specific questions about your tax implications in this transaction, you should consult your own accountant or financial advisor. Incumbent's Federal, State or Individual Tax ill #, FEIN (Federal) or SSN (individuals): State(s) - sales tax license, resale permit, employment, etc.): Local (if applicable): Current State and County location for your principal executive office: If there has been more than one location for the principal executive office within the past five (5) years, list each such City/County/State location: IV. REGULA TORY INFORMATION Would you like Nextel's Regulatory department to prepare and file all necessary FCC paperwork on your behalf? Yes / No If yes, please provide the following Universal Licensing System ("ULS") information for your licenses: j If no, please provide the following information : regarding who will take care of the preparation and i filing of all necessary FCC paperwork on your behalf: FRN (FCC Registration Number): : Contact Name: ULS PASSWORD: , , , , : Organization: , Contact Representative for any FCC related issues: : Address: , , , , Name: : City: Phone Number: : State/Zip: , : Phone Number: , , , : Email Address: Page 19 of20 I hereby acknowledge that all of the information provided herein is true and correct as of the date signed below. Incumbent Signature: Print Name: Title: Date: Page 20 of 20 RESOLUTION 03 Series of 2007 TITLE: A RESOLUTION APPROVING A FREQUENCY RECONFIGURATION AGREEMENT BETWEEN THE CITY OF WHEAT RIDGE, THE CITY OF LAKEWOOD AND NEXTEL WEST CORPORATION TO RECONFIGURE THE 800 MHZ BAND TO MINIMIZE HARMFUL INTERFERENCE TO PUBLIC SAFETY RADIO COMMUNICATIONS SYSTEMS IN THE BAND ("RECONFIGURA TION"). WHEREAS, on August 6, 2004, the Federal Communications Commission ("FCC") issued a Report and Order that modified its rules governing the 800 MHz band. The purpose of the Order was to reconfigure the 800 MHz band to minimize harmful interference to public safety radio communications systems in the band ("Reconfiguration"). WHEREAS, on December 22, 2004, the FCC issued a Supplemental Order and Order on Reconsideration. The August 6, 2004 and December 22, 2004 FCC orders, and any supplemental FCC Orders in the Reconfiguration proceeding or subsequent actions after the date ofthis Agreement, are collectively referred to as the "Order." WHEREAS, pursuant to the Order, Incumbents and Nextel are licensed on frequency allocations subject to Reconfiguration. WHEREAS, pursuant to the Order, Nextel will pay Incumbents an amount to effect a Reconfiguration of Incumbents' affected frequency allocations ("Reconfiguration Cost"). NOW THEREFORE BE IT RESOLVED by the City Council of the City of Wheat ridge, Colorado, as follows: Duly authorizes and approves a Frequency Reconfiguration Agreement between the City of Wheat Ridge, the City of Lakewood and Nextel West Corporation to reconfigure the 800 MHz band to minimize harmful interference to public safety radio communications systems in the band ("reconfiguration"). This agreement requires the City of Wheat Ridge and the City of Lakewood to relinquish their frequencies and who will in turn receive replacement frequencies. Any costs incurred by the City of Wheat Ridge and the City of Lakewood will be reimbursed by Nextel West Corporation. DONE AND RESOLVED THIS 8th day of January 2007. Jerry DiTullio, Mayor ATTEST: Christa Jones, Acting City Clerk ATTACHMENT 2 ITEM NO: 51 REQUEST FOR CITY COUNCIL ACTION COUNCIL MEETING DATE: January 8, 2007 TITLE: MOTION TO APPROVE FINDINGS AND DECISION. AS PREPARED BY THE CITY ATTORNEY FOR APPLEWOOD BAPTIST CHURCH (SUP-06-04) D PUBLIC HEARING rgJ BIDS/MOTIONS D RESOLUTIONS D ORDINANCES FOR 1 ST READING (Date: D ORDINANCES FOR 2ND READING ) Quasi-Judicial: rgJ Yes D No <S,~ 0-" r c..t_ City Manags;V7 cr City Attorney EXECUTIVE SUMMARY: On December 11, 2006 the Council heard the application of the Applewood Baptist Church for a special use permit to build an additional education building on the north parcel of the church campus. Following the hearing the Council voted to deny the application and to direct the City Attorney to prepare written findings and decision for its consideration at the next Council meeting. The requested findings and decision is attached. STATEMENT OF THE ISSUES: The primary consideration for the Council is whether the application satisfies the requirements of Code Section 26-114 for approval of a special use permit. Those requirements, and the information presented at the public hearing bearing upon them, are detailed in the attached findings and decision. COMMISSION/BOARD RECOMMENDATION: N/A ALTERNATIVES CONSIDERED: (1) Do not approve the findings and decision; (2) Reconsider the decision to deny the permit; (3) Continue the matter for action to a future Council meeting. FINANCIAL IMPACT: None. RECOMMENDED MOTION: "I move to approve the written findings and decision in Case No. SUP-06-04, denying the application of Applewood Baptist Church for a special use permit." or, "I move to deny approval of the written findings and decision in Case No. SUP-06-04, denying the application of Applewood Baptist Church for a special use permit for the following reason(s) " Report Prepared by: Gerald Dahl, City Attorney (303) 493-6670 Reviewed by: Randy Young, City Manager Attachments: 1. Findings and Decision COUNCIL CITY OF WHEAT RIDGE, COLORADO In Re: Application of Applewood Baptist Church for a Special Use Permit Case No. SUP - 06-04 FINDINGS AND DECISION THIS MATTER COMES before the Wheat Ridge City Council (the "Council") upon the application of Applewood Baptist Church for a special use permit to allow expansion of an education building as ancillary to a church in an R-1 zone district located at 11225 West 32nd Avenue in Wheat Ridge, Colorado. The Council, having conducted the required public hearing and being fully advised in the matter, enters the following Findings and Decision. FINDINGS 1 . This Application was filed by the Applewood Baptist Church (the "Church") to request approval of a special use permit for the property located at 11225 West 32nd Avenue (the "Subject Property"). 2. The Subject Property is 6.85 acres in size, is currently zoned R-1: Residential-1, and has an existing 24,815 square foot education building, parking and landscaping. 3. The Church wishes to construct a 35,685 square foot addition to the existing education building, with expanded parking and landscaping. 4. The R-1 zone district is a low density zoning category which allows primarily single family residential development. There are also a variety of recognized ancillary uses such as the keeping of household pets and special uses. 5. Wheat Ridge Code of Laws (the "Code"), Section 26-204 permits special uses in the R-1 zone district including government buildings with outside storage, bed and breakfast facilities and churches. 6. As an expansion of a use ancillary to a church, the Application is one for a special use permit in the R-1 zone district. Code Section 26-204. The procedure and criteria for review and action by the City on special use permit applications are contained in Code Section 26-114. ATTACHMENT 1 7. Pursuant to Code Section 26-114-C, a special use permit is first reviewed administratively. A 10-day public notice period runs during which comments may be submitted in favor of or against the proposal. If relevant objections are received during the notice period, the request must be forwarded to the City Council for review. Community Development staff received two letters of objection regarding the request; therefore, it was forwarded to the City Council. 8. As described in the Planning Division staff report introduced into the hearing record, the campus of the Applewood Baptist Church is split between the City of Lakewood and the City of Wheat Ridge, with the main sanctuary building and ancillary parking located on the south side of 32nd Avenue within the City of Lakewood (the "South Parcel"). 9. The portion of the Church campus located on the north side of 32nd Avenue and within the City of Wheat Ridge, (the "North Parcel") is a 6.85-acre site containing a 24,815 square foot, three-story education building, parking for 213 vehicles and a storm water detention area. Three existing curb cuts on 32nd Avenue permit traffic to enter the North Parcel from 32nd Avenue. 10. The Application proposes the construction of a second education building on the North Parcel, connected to the first and located north and west of the existing building. 11. The Application proposes to reconfigure the parking area to reduce the number of curb cuts. The parking lot on the North Parcel currently contains 213 parking spaces. The Application proposes to increase this number to 441 spaces, including 12 handicap spaces. 12. Prior to the hearing, the Church's representative could not provide an accurate number of the current Church membership. However, it was indicated that the attendance on Sunday mornings varies from 629 to 999 persons between the two morning services. The Church presently employs volunteer crossing guards to assist pedestrians crossing 32nd Avenue for Sunday church services on the South Parcel and various functions in the education building on the North Parcel. Attendees at Sunday church services and for other events during the week park both on the South Parcel, which contains approximately 133 parking spaces, and also on the North Parcel. 13. The Application was heard by the City Council in a public hearing on December 11, 2006. Notice of the hearing was properly given as required by Code Section 26-109. 14. A the December 11, 2006 hearing, the City Council accepted the following exhibits into the hearing record: . Planning Staff report . Zoning ordinance 2 . Case file, including application and traffic report . Digital presentation 15. The primary witness on behalf of the Church at the December 11, 2006 public hearing was its architect Stanley Pouw. Mr. Pouw introduced the Church's consultant team, including a traffic engineer, a landscape architect, a civil engineer, and a lighting consultant. Mr. Pouw presented site drawings of the proposed building and described it as being oriented east and west to free up views of the mountains. Mr. Pouw testified that there are presently a total of 213 parking spaces presently on the North Parcel. Mr. Pouw testified that the Application proposes the construction of 228 additional parking spaces on the North Parcel, all dedicated to the new education building use which is the subject of the Application. Mr. Pouw testified that the Church would agree to the construction of a pedestrian crossing signal on West 32nd Avenue. 16. In response to questions from Council Member Adams and staff, Mr. Pouw: . described the proposed education building as containing approximately fourteen classrooms, a multi-purpose room similar to a gymnasium, a kitchen and restrooms. . described the use of the education building as for "church classes" and, potentially, youth group activities. In response to a further series of questions Mr. Pouw testified that the multi-purpose room could be used for other functions, such as weddings and receptions. . testified that the use of the multi-purpose room would not be restricted to church members, and that anyone could rent the multi-purpose room for an event such as a wedding or wedding reception. 17. In further response to questions from Council Member Adams, Mr. Pouw testified: . that the majority of use of the educational building would be on Sunday and on Wednesday night, but he also testified that the building would be available for use on other days. . that he was unable to describe what the number of hours of use of the building would be on an average week, stating that the Church program changes frequently and that the highest use would be on Sundays and Wednesday evenings. . that the parking for the proposed educational building was calculated on the basis of a classroom building. 18. In response to questions from Council Member Stites, Mr. Pouw testified that: . the existing education building does not have a gym or multi-purpose room. . the proposed multi-purpose room in the new education building would be approximately 60' x 90' and that 200 to 300 people could be 3 accommodated in that room. If the multi-purpose room were used for an athletic event, only the players would fit. . the multi-purpose room could be used for a youth meeting. . the disconnected Church campus (between the North and South Parcels) leads to the requirement of a pedestrian crossing signal on 32nd Avenue. 19. In response to questions from Council Member Gokey, Mr. Pouw testified that: . weddings and wedding receptions could take place on Fridays or Saturdays and that there was no restriction on this. 20. Council Member Sang stated that she has observed traffic on 32nd Avenue and that the pedestrians do not obey the crossing guards at the present time. 21. In response to questions from Council Member Schulz, Mr. Pouw stated that it was the Church's commitment that the new education building on the North Parcel would not be used as a sanctuary. Councilmember Schulz stated that he was concerned with the safety of crossing pedestrians even with a pedestrian traffic light. 22. The Church's traffic engineer, Fred Lantz of Lantz & Associates testified with respect to the process used to calculate the traffic and parking requirements associated with the Application: . Present traffic was counted . Did not use the sanctuary seats method . Instead, looked at Sunday services . Took Sunday services and increased by 10% per year . Carried this number out for 20 years 23. Mr. Lantz further testified that on Sundays the proposed increase attributed to the education building would be 18 vehicles into the property and 70 vehicles out between services. 24. In response to questions from Council Member Rotola, Mr. Pouw testified that the additional parking proposed as a part of the Application would help, but would not eliminate, the present problem of parishioners parking on the streets in the neighborhood. 25. The following persons testified in opposition to the Application: Mike Larkin: Mr. Larkin testified that he lives in Lakewood near the Church and that his concern is parking. The Church members do not park in the lot; instead they always park in the streets. The Church does not clear snow from its sidewalks. The Church's newsletter in 2004 stated that it is the Church's mission to grow and break all attendance records. Mr. Larkin testified that neighbors cannot get out of their driveways on Sundays. 4 Tiffanv Barnhart: Ms. Barnhart testified that she lives adjacent to the North Parcel on the east and that the residential neighborhood is not designed to accommodate a church of this size. She testified that she was concerned with congestion, noise and air pollution as well as the safety of pedestrians crossing 32nd Avenue. She testified that the 25-foot access running through the parking area east of the existing education building would negatively impact her. She further testified that the Church maintains a school bus lot and trash bin on the parking lot associated with the North Parcel and that she had never been approached about this. Dan Barnhart: Mr. Barnhart questioned the scope of the Church's proposed use and why it is needed. Mr. Barnhart testified that he felt a mega-church is not appropriate for this location and questioned why the Church had refused to describe its full calendar of proposed events on the Subject Property. Mr. Barnhart questioned what would happen to the building if it were vacated. Pete Klammer: Mr. Klammer testified that the Church's newsletter indicated that 70% of the congregation lives within a 10-mile radius of the Church, which indicated that its impact was regional and not local in nature. Mr. Klammer testified to the present impacts from bus parking, litter and traffic and that with the recent approval of the Cabela's project, traffic on 32nd Avenue would already increase and that approving this Application would make that situation worse. Tom Radiqan: Mr. Radigan testified that there were approximately 3,000 Church members, with 1,000 attending on Sunday. Mr. Radigan testified that 70% of the Church members who would use the new education building live outside of Lakewood and Wheat Ridge and that 90% drive to the Church, resulting in an impact out of proportion to the neighborhood. Mr. Radigan questioned whether the increase in size of the education building would increase use of the worship center. Finally, Mr. Radigan observed that there is no restriction on seven-day per week use of the education building as proposed. Sheila Bardwell: Ms. Bardwell lives adjacent to the Church. She testified that the surrounding area is residential and that the weekend traffic endangers persons using the bike path and trails. Ms. Bardwell testified that presently the parking lot lights produce glare and any increase in parking lot lighting would affect her ability to sell her home. Ralph and Debbie Perri: Mr. and Mrs. Perri testified that they own property adjacent to the North Parcel, and felt that the proposed size of the new education building would be too large. They stated that adding the 47,000 square feet of buildings on both North and South Parcels now, and including the 36,000 square feet of new educational building area, gives a total 83,000 square feet plus a parking lot which is the size of a Wal-Mart parking lot. They testified that this is too great a burden for a small neighborhood, and that the noise and air pollution and congestion existing now would only be made worse. Mr. Perri testified that approval of the application would change 5 his quality of life and stated that it was impossible to be able to buffer an 83,000 square foot complex. Mr. Perri testified that a small neighborhood church would be acceptable, but not this. Christine Tomavitch: Ms. Tomavitch testified that she is a realtor in Lakewood and that individuals in the neighborhood have had a right to quiet enjoyment of their homes. She testified that approval of the application would impact the reasons people move there and would have the potential to affect purchase decisions. Hollv Heaton: Ms. Heaton testified that the proposal was not really for a church use and that it did not fit with the surrounding residential neighborhood. She testified to her concern with the noise which would come from the traffic to a Wal-Mart-sized building and parking lot, including motor vehicle exhaust, and that existing impacts to the neighborhood would be compounded. She further testified that the Church has become a mega-church; a business, and not an appropriate neighbor. Archibald Gibbard: Testified in opposition to the application. Julia Parasian: Ms. Parasian is a neighbor of the Subject Property. She testified to her concern with congestion and lighting and lights, and the view into her bedroom from the proposed educational building. She further testified that it is not clear what the proposed use of the property would be. 26. Standard of Review. Code Section 26-114.0 establishes nine criteria for evaluation of a special use permit application. The Code Section requires that all nine criteria be met: [1.] Will not have a detrimental effect upon the general health, welfare, safety and convenience of persons residing or working in the neighborhood of the proposed use. [2.] Will not create or contribute to blight in the neighborhood by virtue of physical or operational characteristics of the proposed use. [3.] Will not adversely affect the adequate light and air, nor cause significant air, water or noise pollution. [4.] Will not result in undue traffic congestion or traffic hazards, or unsafe parking, loading, service or internal traffic conflicts to the detriment of persons whether on or off the site. [5.] Will be appropriately designed, including setbacks, heights, parking, bulk, buffering, screening and landscaping, so as to be in harmony and compatible with the character of the surrounding areas and neighborhood, especially with adjacent properties. 6 [6.] Will not overburden the capacities of the existing streets, utilities, parks, schools and other public facilities and services. [7.] History of compliance by the applicant with Code requirements and prior conditions, if any, regarding the subject property. [8.] Ability of the applicant or any permitted successor-in-interest to continuously meet the conditions of the proposed permit. [9.] Other factors relevant to the specific application. 27. Based upon the testimony and evidence received at the public hearing, the Council makes the following findings with respect to the application's compliance, or lack thereof, with requirements of Code Section 26-114.0: [1.] Will not have a detrimental effect upon the general health, welfare, safety and convenience of persons residing or working in the neighborhood of the proposed use. The Council finds that this criterion is not met. The general health, welfare, safety and convenience of persons in the neighborhood would be negatively impacted by granting of the application, as a result of the increase in the present unacceptable level of traffic congestion, parking in neighborhood streets, noise and air pollution from idling vehicles. See also testimony of Mark Larkin, Pet~ Klammer, Tom Radigan, Sheila Bardwell and Holly Heaton. [2.] Will not create or contribute to blight in the neighborhood by virtue of physical or operational characteristics of the proposed use. The Council finds that this criterion is not met. The Staff Report describes blight as "a combination of physical, environmental and safety factors." (Staff Report, p. 7). The Council finds that the increased traffic and associated air pollution from the expansion of the Church campus would have a blighting influence on health and safety of residents of the neighborhood. See also testimony of Pete Klammer, Mike Larkin, Sheila Bardwell and Ralph and Debbie Perri. [3.] Will not adversely affect the adequate light and air, nor cause significant air, water or noise pollution. The Council finds that this criterion is not met. The Staff Report notes that given the mass of the proposed structure there may be a negative impact on the light and air to adjacent properties, and that there may be air and noise pollution generated by vehicles entering and exiting the expanded parking area. The public testimony supports this conclusion. In particular, the testimony established that current levels of noise and air pollution from the existing operation are a significant detrimental impact on the surrounding neighborhood. See testimony of Tiffany Barnhart, Ralph and Debbie Perri, and Holly Heaton. 7 [4.] Will not result in undue traffic congestion or traffic hazards, or unsafe parking, loading, service or internal traffic conflicts to the detriment of persons whether on or off the site. The Council finds that this criterion is not met. The Council is particularly concerned with the volume and safety of pedestrian traffic crossing 32nd Avenue. The Council finds that this situation is presently unsafe, with a major educational building north of 32nd Avenue and the sanctuary complex south of 32nd Avenue. The Council finds that pedestrian safety is already at risk as a result of this configuration of the Church's campus. The Council finds that this unsafe situation would be further compounded were the Application to be approved. The proposal would significantly increase pedestrian traffic across 32nd Avenue. The Council finds that the crossing guards which are presently employed to control pedestrian traffic across 32nd Avenue on Sundays are presently not effective. The Council further finds that installation of a traffic light would not sufficiently ameliorate this hazard, as the volume of people needing to cross 32nd Avenue within a short period of time would have the potential to overpower and ignore the traffic light. The Council further finds that 32nd Avenue, as a collector street, is not an appropriate street for the volume of pedestrian crossing which would be increased as a result of the Application. The Council finds that this present unsafe situation would only be exacerbated by approval of the Application. This finding is also supported by the testimony of Mark Larkin, Tiffany Barnhart, Sheila Bardwell and Meredith Reckert. [5.] Will be appropriately designed, including setbacks, heights, parking, bulk, buffering, screening and landscaping, so as to be in harmony and compatible with the character of the surrounding areas and neighborhood, especially with adjacent properties. The Council finds that this criterion is not met. The R-1 single family neighborhoods on the east and west are already impacted by the size and intensity of the present church use. Additional traffic, pedestrians, lighting, and activity throughout the week, including weekends, associated with an additional large educational building is an unacceptable and negative impact to those neighborhoods, out of character and scale to their reasonable expectations The testimony of the Church established that, while it was expected the heaviest use of the new educational building would be on Sunday and on Wednesday evenings, the Church could not guarantee, and in fact admitted, that the building could be used on other days of the week as well. The Church's testimony established that the new education building would contain 14 classrooms. This is equivalent to an elementary school. While elementary schools are often found in residential neighborhoods, the proposal is, in effect, to add an elementary school-level impact to the present impact of a church which draws membership from an area considerably greater than the City of Wheat Ridge. 8 Granting the Application would increase the total square feet of the Church's complex in this neighborhood to approximately 83,000 square feet, combined with a parking lot approximately the size associated with a "big box" retailer. This size and intensity of use, out of scale to that of a neighborhood church, is incompatible with the surrounding residential neighborhood. The Church's testimony established that the multi-purpose gymnasium room could be used on any day of the week, and, significantly, could be rented by non-church members for non-church activities. The Council finds that the Application thus proposes the equivalent of an elementary school and event center, the latter unrelated, on any given day, to the Church function itself. The Council finds that the total impact of all of these proposed uses is out of proportion to and incompatible with the character of the surrounding areas and neighborhood. This finding is also supported by the testimony of Tiffany Barnhart, Dan Barnhart, Julie Parasian, Ralph and Debbie Perri, Holly Heaton, and Stanley Pouw. [6.] Will not overburden the capacities of the existing streets, utilities, parks, schools and other public facilities and services. The Council finds that this criterion is not met. The testimony established that congestion exists on existing streets at present as a result of the present Church activities. The traffic report was completed using the average attendance at Sunday services, with a projected 10% increase per year. Accordingly, the additional traffic impact will double in ten years, and so on. The traffic report states that additional Church members are bussed in from a remote location. This adds to the cumulative impact which would further overburden existing streets and impose an unreasonable, increasing impact upon those facilities. This finding is also supported by the testimony of Pete Klammer, Tom Radigan, Fred Lantz, and Sheila Bardwell. [7.] History of compliance by the applicant with Code requirements and prior conditions, if any, regarding the subject property. The Council finds that this criterion has been met. The Staff Report (page 8) indicates that a search of the City's Code Enforcement Records shows that there was one zoning code violation in 2003 relating to a dumpster enclosure. That violation was abated in a timely manner. [8.] Ability of the applicant or any permitted successor-in-interest to continuously meet the conditions of the proposed permit. The Council finds that this criterion is inapplicable as the Council has denied the Application. 9 [9.] Other factors relevant to the specific application. The Council finds that Code Section 26-114(A) is relevant to the Application. That Section sets forth the purpose governing review of special use applications: Special uses are discretionary uses which, if properly designed, developed, operated and maintained, may be approved for any specific location within a zone district wherein the special use is enumerated. The primary issues to be addressed are those related to justification of need and special design and operational considerations which mitigate potential detrimental impacts of a special use on surrounding land uses, the street system, or public services or facilities. In order to protect the public interest, a special use may be approved, approved with conditions or denied. Under this Code Section, one of the primary issues to be addressed is justification of need for the permit. The Church testified that the use of the existing educational building was heaviest on Sundays and Wednesday evenings, but did not testify as to overcrowding or space need problems on these days or the remaining days of the week. The Church failed to demonstrate a need for the additional building square footage that, without any evidence presented to the contrary, conceivably could be accommodated by, for example, more efficient scheduling of the existing educational building or means other than building a 35,685 square-foot addition. The Church could not readily identify the proposed specific Church or other uses of the proposed building. Questions from Council and staff concerning the use of the building were given vague or broad answers such as "educational programs or youth group meetings." The Church failed to clearly demonstrate why there is a shortage of space at the existing building, failed to clearly identify the use(s) and purpose(s) of the building addition and, therefore, did not justify the need for the new building. 28. The Council finds that the proposed use of the education building, even as described by the Church, is only partially related to the Church's religious function. By admission of the Church's representatives themselves, the proposed education building multi-purpose room would be available for rental by non-church members for non- church activities, whenever that space was available. The Church testified that the primary use of the education building and multi-purpose room would be on Sundays and Wednesday evenings, but could not readily identify programming uses specific to most days of the week. The Council finds and concludes that the building and its multi- purpose room would be available for non-church activities. 29. The Council finds that the fourteen classrooms proposed for the new educational building, with the associated multi-purpose room or gym, bathrooms and a kitchen, as well as the associated parking, effectively create the impact of an elementary school in this neighborhood. The Council finds that while elementary schools can be compatible with residential neighborhoods, the combination of this 10 elementary school equivalent new use and associated large parking lot renders the Application out of harmony and incompatible with the surrounding neighborhood. 30. The Council finds that the safety of pedestrians and motorists in this neighborhood is of prime concern. The Council finds that safety is presently compromised due to the unusual configuration of this large church campus being separated by a busy collector street. It is this physical configuration which creates a significant threat to public health, welfare and safety, which is not sufficiently ameliorated by the proposed street crossing signal. The Council finds, based upon the evidence in the record, that approval of the application would exacerbate the present unsafe situation and thereby further compromise public safety. 31. The Council finds that the Application proposes a non-residential use in a residential area; that traffic and other impacts on the site, combined with poor pedestrian planning and the fact that pedestrians will take the most direct exit from and to the various buildings on the North and South Parcels of the Church campus, rather than the safest route, renders the proposal unsafe. The Council further finds that the growth of this church has already negatively impacted the neighborhood and that approval of the application would not be compatible with the neighborhood. 32. The Council finds that the factors set forth in Code Section 26-114 for review of special use applications are each a compelling governmental interest, and that the Application has failed, for the reasons described above, to protect those interests. DECISION Based upon the foregoing findings and its review of the evidence and testimony, the City Council hereby denies the Application of Applewood Baptist Church for a special use permit to allow expansion of an education building as ancillary to a church in an R-1 zone district located at 11225 West 32nd Avenue in Wheat Ridge, Colorado, Case Number SUP-06-04. APPROVED AND ADOPTED by the Wheat Ridge City Council this 8th day of January, 2007. Jerry DiTullio, Mayor ATTEST: Christa Jones, Acting City Clerk 11 CERTIFICATE OF MAILING I certify that on January , 2007, a true and correct copy of the foregoing FINDINGS AND DECISION was placed in the United States mail, postage prepaid, and addressed to: Applewood Baptist Church 11200 West 32nd Avenue Wheat Ridge, Colorado 80033 Stanley Pouw Pouw & Associates Inc. 190 E. 9th Avenue, #250 Denver, CO 80203 Thomas MacDonald 950 1 yth Street, #160 Denver, CO 80202 12