HomeMy WebLinkAboutRFP - P943 PENSION SERVICESAdministrative Services
Purchasing Divison
REQUEST FOR PROPOSAL
Please submit six (6) written copies to City of Fort Collins' Purchasing Division, 215 North
Mason St., 2nd floor, Fort Collins, Colorado 80524. Proposals will be received before 3:00
p.m. (our clock), June 30, 2004. Proposal No. P943. If delivered, they are to be sent to 215
North Mason Street, 2nd Floor, Fort Collins, Colorado 80524. If mailed, the address is P.O. Box
580, Fort Collins, 80522-0580.
In addition to the copies submitted to the Purchasing Division, please submit one (1) hard copy
and one (1) electronic copy of your proposal by 3:00 pm on June 30, 2004:
Innovest Portfolio Solutions LLC
Wendy Dominguez
8301 E. Prentice Ave., Suite 300
Greenwood Village, CO 80111
wendyd@innovestinc.com
If your firm is planning to submit a proposal, please fill out and return the Vendor
Qualification form, as soon as possible, following the receipt of this invitation.
Poudre Fire Authority does not want to be contacted during the RFP process.
Questions concerning the scope of the project should be directed to Wendy Dominguez via
email to wendyd@innovestinc.com or Brad Brewer bradb@innovestinc.com at Innovest.
Questions regarding proposals submittal or process should be directed to James B. O’Neill, II,
CPPO, FNIGP (970) 221-6775.
A copy of the Proposal may be obtained as follows:
1. Call the Purchasing Fax-line, 970-416-2033 and follow the verbal instruction to
request document #30943.
2. Download the Proposal/Bid from the BuySpeed Webpage,
https://secure2.fcgov.com/bso/login.jsp.
3. Come by Purchasing at 215 North Mason St., 2nd floor, Fort Collins, and request
a copy of the Bid.
Sales Prohibited/Conflict of Interest: No officer, employee, or member of City Council, shall
have a financial interest in the sale to the City of any real or personal property, equipment,
material, supplies or services where such officer or employee exercises directly or indirectly
any decision-making authority concerning such sale or any supervisory authority over the
services to be rendered. This rule also applies to subcontracts with the City. Soliciting or
accepting any gift, gratuity favor, entertainment, kickback or any items of monetary value from
any person who has or is seeking to do business with the City of Fort Collins is prohibited.
Collusive or sham proposals: Any proposal deemed to be collusive or a sham proposal will be
rejected and reported to authorities as such. Your authorized signature of this proposal
assures that such proposal is genuine and is not a collusive or sham proposal.
The City of Fort Collins reserves the right to reject any and all proposals and to waive any
irregularities or informalities.
Sincerely,
James B. O'Neill II, CPPO, FNIGP
Director of Purchasing & Risk Management
Poudre Fire Authority Vendor Qualifications
Experience
• Vendor must have public plan experience. Vendors with Colorado public plan experience are preferred.
• Vendors must have experience with plans with similar asset and participant levels. The majority of
vendor plans must be in the $20 million to $200 million range.
Investments
• Open universe of fund offerings. At least 50% of the funds offered must be non-proprietary funds.
• All investments will be offered on a share basis, not a unit basis and will be purchased at NAV.
• A stable value fund may be offered as part of the investment menu, however, no market value
adjustment on either participant or plan level withdrawals will be allowed.
Costs
• The Fire District realizes their plan is very attractive for vendors due to the high average account
balances in the plan. A preferred vendor will refund to the plan revenue sharing in excess of their fee to
pay for additional plan costs (legal, consulting, audit, etc.).
Education
• Investment advice must be offered. The preferred provider will have the ability to offer advice from both
in-person, salaried representatives and computer based systems.
• Vendors will be required to offer quarterly participant meetings on site at the various fire houses in Fort
Collins for two days each quarter in order to have access to all shifts. In addition, general education
meetings will be provided for new hires as requested, but shall not be more than 2 per year. Also,
retirement planning seminars by CFP or similarly accredited professionals will be provided at least once
per quarter. Participants should also have phone access to CFP’s for routine questions.
Contract Provisions
• Service standards with monetary damages paid back to the plan for non-compliance will be included in
the contract. Vendors must have the flexibility to include these negotiated service standards in their
contract, as well as other reasonable requests of the City of Fort Collins Purchasing department.
• The term of the contract will be no longer than 3 years and after the initial term, termination can be
made by either party, with or without cause with 60 days notice. No contract termination fees will be
allowed.
Any questions about these qualifications should be directed to Wendy Dominguez at Innovest Portfolio
Solutions. She can be reached at wendyd@innovestinc.com or 303-694-1900 extension 301.
If you believe your firm meets the vendor qualification requirements as stated above, please complete and
sign the bottom of this form and return it to Jim O’Neill in the Purchasing Department at the City of Fort
Collins. His fax number is 970-221-6707.
I certify that our firm meets the vendor requirements as stated above and we plan on submitting a proposal,
when an RFP is issued.
Vendor Name
Vendor Representative
Vendor Representative Signature
P943 Pension Services Poudre Fire Authority
Poudre Fire Authority Money Purchase Pension Plan
(Old Hire & New Hire)
Statement of Work
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Background Information
The City of Fort Collins is seeking proposals on behalf of the Poudre Fire Authority from retirement plan vendors that meet
the attached Vendor Qualifications. Poudre Fire Authority has $31.6 million in assets, 3.4% is held by inactive or retired
participants. They have 141 participating employees (18 under the Old Hire Plan and 123 under the New Hire Plan). Gross
contributions for the year are approximately $1.6 million (26 pay periods). The formula for determining the mandatory
contribution amount is 8% employer contribution and 8% employee contribution. The plan allows for voluntary employee
contributions up to 7% per year. Forfeitures are allocated and credited as an additional employer contribution in the plan
year in which they occurr. The plan allows three loans per participant, and currently has 46 outstanding. The amount of
outstanding loans is $737,000.
Statement of Plan Services
The selected plan vendor must meet the following service requirements.
General Services
1. Significant experience with public plans.
2. Demonstrated ability to complete an organized, effective plan conversion minimizing the blackout period.
Participant Customer Services
1. The selected vendor must be able to provide a toll-free voice response system as well as an interactive,
fully transactional web site for participant account access, both with the following capabilities:
Enrollment
Changes to asset allocation
Loan modeling and initiation
Participant statement requests – available to view online
Prospectus orders – available to view online
Plan information – available to view online
Investment option performance history – available to view online
On line investment advice
In person investment advice
2. An adequate number of participant service representatives must be available to provide service over the
telephone during reasonable hours.
3. Ability to offer fee concessions (service guarantees) for failure to meet service standards for routine plan
sponsor and participant services.
Recordkeeping and Administrative Services
1. Daily valuation is required.
2. Reconcile payroll contributions before money is wired.
3. Investment of payroll contributions must be credited to participant accounts on the day of receipt of the
funds.
4. The plan vendor will be required to mail quarterly participant statements of account directly to participants
at their home address.
5. The plan vendor will be required to provide quarterly administrative reports to the plan sponsor.
6. Comprehensive trust reports and schedules to facilitate the annual reporting and auditing process is a
requirement.
7. The plan vendor must handle benefit distribution processing including required notices, checks, tax
withholding, and tax reporting on Form 1099-R.
8. Complete outsourcing of QDRO validation and processing.
9. Complete outsourcing of loan processing.
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Investments
1. A wide universe of investment securities with the flexibility to change securities daily is required. Share
accounting, not unit accounting is required.
2. Poudre Fire currently offers the following investment options and would like to maintain as many as
possible:
New Hire Balance Old Hire Balance
Jennison Growth Z $3,760,566 $1,164,295
Van Kampen Comstock A $911,267 $435,348
Dryden Stock Index Z $839,665 $923,842
Core Equity Account $695,684 $160,728
American Funds Grwth Fnd Amer A $641,317 $122,911
Janus Fund $425,868 $177,777
PRIDEX Account $182,839 $75,864
MFS Massachusetts Investors A $99,438 $15,374
Franklin Equity Income A $33,686 $0
Davis NY Venture A $5,881 $0
Guaranteed Interest Account $4,167,720 $2,845,706
Money Market Account $249,560 $41,393
MIDCAP Account $1,600,778 $632,779
Nuberger Berman Genesis Tr $1,007,933 $404,477
Franklin Small-Mid Cap Growth A $569,251 $236,682
Jennison US Emerging Growth Z $251,116 $16,167
Dryden Active Allocation Z $1,693,652 $743,703
American Balanced A $958,473 $284,544
PIMCO Total Return A $893,335 $1,367,948
Credit Suisse Global Fixed Income Com $319,301 $42,826
Dryden Government Income Z $183,627 $40,153
Jennison Global Growth Z $0 $0
Strategic Partners Intl Value Z $859,698 $623,564
Templeton Foreign A $232,900 $159,564
Seligman Communication & Info A $138,599 $6,981
MFS Utilities A $124,284 $9,845
3. The plan will be looking at the possibility of adding or deleting investment options, however in order for pricing
to be on more of an “apples to apples” basis, we are asking that the vendors assume the final line up will look
as close to the current lineup as possible.
Costs
1. Poudre Fire realizes their plan is very attractive for vendors due to the high average account balances in the
plan. A preferred vendor will refund to the plan revenue sharing in excess of their fee to pay for additional plan
costs (legal, consulting, audit, etc.)
Communication Services
1. Employee communication should include:
a. Investment advice through both in person, salaried representatives and computer based
systems.
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b. Quarterly participant meetings on site at the various fire houses in Fort Collins for two
days each quarter specific to different sophistication levels on a variety of subjects.
c. General education meetings for new hires as requested, but shall not be more than 2
per year.
d. Retirement planning seminars by CFP or similarly accredited professionals should be
provided at least once per quarter.
e. Prepare communications for Poudre Fire’s specific needs and have ability to
communicate in person and hard copy
Legal Requirements
1. The vendor must have flexibility in their contractual language and have the ability to make changes to the
language based on the reasonable request of the City of Fort Collins Purchasing Department.
2. Service standards with monetary damages paid back to the plan for non-compliance will be included in the
contract. Vendors must have the flexibility to include these negotiated service standards in their contract.
3. The term of the contract will be no longer than 3 years and after the initial term, termination can be made
by either party, with or without cause with 60 days notice. No contract termination fees will be allowed.
Administrative Issues
Timeline for selection:
Due Date for Proposals: June 30, 2004 (by 3:00 pm)
Finalist Interviews: July 27, 2004 (tentative)
Selection of Vendor: August 3, 2004 (tentative)
Proposed Timeline for implementation:
Employee Communication on Transition: December 2004
Plan Conversion Date: January 1, 2005
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P943 Pension Services Poudre Fire Authority
Poudre Fire Authority Money Purchase Pension Plan
Proposal Questionnaire
General
1. Please indicate your company’s legal name, contact person, address, telephone and fax numbers, e-mail address, and
federal tax I.D. number.
2. Confirm that you agree to all requirements in the Statement of Work and Vendor Qualifications Document.
3. Provide the following information about your company:
Type of entity (corporation, partnership, etc.)
State under which laws your company is organized; confirm that your company is licensed to do business in
Colorado.
List of the directors and executive officers and major shareholders
Brief history, including year founded and types of services offered
4. Please provide a brief biographical sketch, including name, position, education, experience and training, other accounts
assigned, and location of the individuals who would be servicing this account. Please explain each person’s
responsibility for this account. Please also comment on the historical turnover rates for this position within your firm.
5. Indicate the total value of assets for which you provide recordkeeping services and the total number of participants in all
defined contribution plans currently being administered by your organization.
6. How many defined contribution plans do you currently administer in the following categories:
Under 100 employees
100-500 employees
500-1,000 employees
1,000-5,000 employees
Over 5,000 employees
7. How many defined contribution plans do you currently administer in the following categories:
Under $20 million in assets
$20 - $50 million in assets
$50 - $100 million in assets
$100 - $500 million in assets
over $500 million in assets
8. What percentage of your contribution plan business represents public retirement plans? How many Colorado Public
Retirement Plan clients do you have?
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9. Will the same team be responsible for conversion and ongoing support? Please distinguish the conversion staff from
the ongoing services staff, include bios on the conversion staff.
10. Explain your conversion process, including time frame. Is a blackout period required? If yes, how long and what is
restricted or not available during that time.
11. From which location will the Poudre Fire account be handled? Please describe the process for servicing the account
from both the plan sponsor and the participant perspective.
12. Within the last ten years, has your firm, any entity owning an interest in your firm, any subsidiaries, or any partners,
professionals, or any other member of your firm:
a) Been the subject of any disciplinary action by any security regulatory agency?
b) Been the party to any litigation directly or indirectly related to the conduct of your business?
c) Been the subject of any ethical inquiries, legal inquiries, or other disciplinary proceedings?
Please describe in detail.
13. What fiduciary responsibility does your firm assume? Does your firm carry fiduciary liability insurance? If so, how much
and with what carrier?
14. Will your firm provide trustee services in addition to recordkeeping services?
15. Does your firm carry Errors & Omissions insurance? If so, how much and with what carrier?
16. Is your firm a registered advisor with the SEC under the Investment Advisor Act of 1940? If so, please include a copy of
the firm’s ADV Parts I and II that are currently on file with the SEC.
17. Is the package of services being quoted provided under a joint venture arrangement? If so, describe the arrangement,
its terms and conditions and whether your company and the other companies have been involved in similar joint
ventures in the past.
18. Indicate whether any services will be subcontracted to another company and fully describe these services and the
stability, background and qualifications of the company that will provide the services.
19. Over the last three years, how many clients have you gained and how many were lost? What was the dollar amount of
the gains and losses? What was the reason for each lost client?
20. Describe any pending agreement to merge or sell the company.
21. Give a brief history of your company’s participation in any similar defined contribution plans. Please include a client list.
Also, please provide five (5) clients of similar participant and asset size who may be contacted. At least 1 of the 5
should have converted within the last year. Include client name, contact person, phone number, number of participants,
plan assets and length of relationship.
22. In the past three years, have you converted any plans from Prudential? If so, please list references.
23. Please confirm that your company is willing to comply with auditing requests. Are there any limitations or restrictions
you would impose on an audit? Would you be willing to provide resources or materials requested through our audit
without imposing additional cost?
24. How do you keep your clients informed of regulatory and legislative changes that impact employee benefit plans?
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25. Do you have the ability to offer Retiree Health Savings Plans to Poudre Fire participants? Please describe your solution
in detail. Are there additional costs for this offering?
Participant Communication Services
1. Fully describe your communications approach and methods used.
2. Based on each of the employee communication areas outlined in the Statement of Work in Item F., please provide a
detailed communication plan, including proposed timetables.
3. Attach samples of the visual and demonstrative aids that your company would use to educate employees about the
plan. (both enrollment and ongoing)
4. Confirm your ability to mail enrollment kits directly to a participant’s home, and handle new hires directly. What
materials would they receive?
5. Do you create the communication and education materials in house or through 3rd parties? Would you create a custom
education campaign for our participants? If so, is the cost included in your cost proposal?
6. Does your organization provide any services (i.e., personal questionnaires, software, one on one meetings with CFP’s
etc) that would help individual participants with financial planning?
7. Describe the policies and practices you employ to prevent the following occurrences:
a) Representatives use of on-site group meetings and individual consultations to solicit outside business(i.e.,
insurance products, mutual funds, IRA’s, other investments)
b) Representatives in person or by mail promoting products or plan features not identified in your proposal.
c) Commissions, incentives or other compensation that encourages your representatives to improperly influence a
participant’s choice of an investment option.
8. Do your Representatives have securities or insurance licenses to sell products?
Recordkeeping Services
1. Describe your company’s recordkeeping system:
a) How long has your system been in existence?
b) Was the system initially purchased from an outside vendor? If so, from whom?
c) If your system was not purchased, when was it first put into place and last updated?
d) Is the system hardware completely dedicated to defined contribution/deferred compensation plan administration?
2. Describe your company’s Technology Plan including backup emergency and disaster recovery systems. How often are
these systems tested? Include the system’s structure (i.e., backbone, Internet Service Provider, router, etc.) What are
your plans for systems enhancements and improvements?
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3. Do you have the ability to accept the current payroll and indicative file layouts from the City of Fort Collins? (see
attached sample file layouts)
4. Do you have the ability to reconcile payroll contributions every two weeks before any funds are wired?
5. How do you control access to the recordkeeping system? Please comment on the system security measures.
6. Describe the quality control procedures you have in place. What types of reconciliation and editing do you perform?
How do you resolve data discrepancies?
7. Does your organization charge clients for system modifications required by legislative changes?
8. Please describe your plan compliance services. Are these services part of your standard package or are they additional
items with separate fees?
9. Describe the type of legal support you provide. Can you assist with plan document design? If so, how?
10. Can you prepare Forms 1099R? If not, how do you propose to complete this process?
11. Describe the reports that are furnished to the plan sponsor and participants.
12. To what extent can these reports be customized? Provide sample reports, including participant statements.
13. Describe Internet access available to plan sponsors and participants.
14. Do you foresee any specific problems incorporating this plan into your recordkeeping system? If so, describe in detail.
Administration
1. Which of these administrative services do you provide? Please describe your services in detail, including the hours the
service is available, the type of transactions that can be initiated using the service, and the number of plans currently
using the service.
a) Voice response system
b) Internet / web site capabilities
c) Dedicated call center operators
2. Toll free telephone and internet / web site access:
a) Do you provide a toll free telephone access number to participants? If so, how long has the toll free number been
operational?
b) Does the toll free number utilize a voice response system or a human operator or both? What is the average wait
time for a human operator?
c) What days/hours is an operator available (Mountain Time)?
d) What days/hours is the voice response system available (Mountain Time)?
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e) Describe the platform supporting your voice, data and Internet systems.
f) How many defined contribution plans use your voice response and internet system capabilities? How many
participants does this represent? How does your firm describe excessive telephone or web volume? Has this
volume ever been reached? If so, what contingency plan was utilized to handle the overload? If not, what is your
contingency plan? Describe your policy, in detail, on restricting or suspending system access due to routine
maintenance and/or telephone and Internet service provider failures.
g) Would the following functions be considered standard or additional add-on features to your voice response and
internet system access service?
(1) Information, e.g., plan provisions
(2) Enrollment
(3) Investment fund information and performance
(4) Account balances
(5) Current participant information
(6) Change of address or status
(7) Reallocation of existing account balances
(8) Withdrawals/disbursements
(9) PIN code change
(10) Beneficiary designation
(11) Statement Requests
(12) Prospectus Orders
(13) Confirmation letter of any change
(14) Asset allocation modeling
(15) Account balance projections
(16) Loan modeling
(17) Retirement planning calculators
(18) Investment advice
3. Please discuss your capabilities in offering investment advice to participants. Who provides it? Explain how it is
delivered (i.e, in person, over the internet, etc.). Explain how Poudre Fire is indemnified by the advice you offer.
4. How are participant and employer complaints handled? Are the complaints and resolutions tracked, monitored and
reported to your clients? How quickly are they reported to clients?
5. How are personal identification numbers (PINs) or passwords handled? What other security measures are taken to
ensure proper access to participant information?
6. Provide representative samples of employee aids for using your voice response system/web site (i.e., brochures, maps,
or other materials).
7. Can participants enroll on-line or through the voice response system?
8. When will participant statements be mailed?
9. Provide your company’s statement accuracy percentage.
10. Is there a limit on the types of distributions an employee can have?
11. Describe your procedures for identifying and calculating age 70½ minimum distributions and substantially equal
payments.
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12. Upon receipt of plan contributions, provide a timeline of contribution processing and the requirements that you will
impose on the plan. Provide the same information for participant elections for transfers of funds between available
investment options, including specifics on switching funds, settlement process and lagtime.
13. Describe your process for handling and administering QDRO’s, plan loans and hardship withdrawals. Describe the
flexibility in your loan repayment processing (i.e., additional payments, multiple loans, missed payments etc.)
14. Check Disbursement Process:
a) Describe, including turnaround time, check preparation, cut-off dates, etc.
Investment Management Services
1. Do you have the ability to offer the plan the mutual funds listed in the Statement of Plan Services in the Statement of
Work?
2. Do you have the ability to offer an open universe of fund offerings, with no more than 50% of the funds on the platform
being proprietary?
3. Do you have the ability to recordkeep custom lifecycle funds created from the underlying mutual funds offered in the
plan? If no, how do you recommend handling? Would there be any additional charges for this service?
4. Please supply a complete list of all of the funds available on your platform. (Please include share class, ticker symbol
and the level of revenue sharing you receive for each mutual fund.)
5. If the plan were to choose to add funds outside of your platform, can they be accommodated? What are the
restrictions?
6. Describe your brokerage account window? Are there any limitations on the types of security or investment vehicle
purchased or sold? What is the additional cost both per participant and per transaction? How are brokerage account
values accounted for on participant statements and on your VRU/Internet systems?
7. Regarding your stable value fund, supply the following information:
a) Your policies for:
(1) Employee-initiated withdrawals
(2) Employer-initiated withdrawals
(3) Inter-fund transfers
b) Asset allocation
c) Can a money market fund be used in lieu of a stable value fund?
8. Provide evidence of your company’s responsiveness to the investment wishes of participants and your responsiveness
to changing market environments.
Cost Proposal
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Identify extraordinary one-time start-up costs expected to be incurred.
1. Please provide fees, if any, for:
a) Plan set-up
b) Implementation of:
(1) Voice response
(2) Internet/web site capabilities
(3) Live operators
(4) Investment advice vendors
2. Customized communications materials
3. Customized statements and reports
4. Employee and plan sponsor meetings
5. Any additional start-up or related fees
6. Loan origination fees
7. On-going loan fees
8. QDRO processing fees
9. Enrollment fees
10. Rollover fees
11. Distribution fees
12. Trustee fees
13. Fees for managing the stable value fund
Participant Communications
1. Fully describe how you will charge for the preparation of materials and training sessions. Provide a fee for the first year
and subsequent years, including licensing fees, if any.
2. Provide the hourly rate that would be assessed for ad hoc communication services that the plan may request.
Administrative, Recordkeeping and Investment Management
1. Fully describe all ongoing fees and charges as requested in the Statement of Plan Services in the Statement of Work.
Information should include, but not be limited to, the following:
a) Do you charge a base fee, a fixed per participant fee or an asset-based fee?
b) List all annual fees for each of the funds the plan intends to offer broken out by type of fee. Include the internal
expense ratio of the fund, administration fees charged by your firm, custody fees charged by your firm, mortality
expense asset charges (M&E) charged by your firm and any other fee that applies. Will any of the investment fees
be rebated to cover administrative costs? If so, please include a separate column for the rebate amount.
c) If the plan were to replace a fund in their current line-up with a non-revenue sharing fund, how much would you
charge on those assets?
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d) What dollar amount or percentage of revenue sharing earned will be rebated back to Poudre Fire to pay additional
plan costs (legal, consulting, audit, etc.).
2. Describe all transaction fees and restrictions:
a) Identify all charges and restrictions associated with processing contributions.
b) Identify every expense for each form of disbursement or benefit payment and the conditions under which the
charge would apply.
3. Are there any additional costs that have not been addressed (e.g., custody, trustee, transfers, trading, online advice,
transactions, etc.)? If so, please outline those costs completely.
4. Identify all fees related to contract termination.
5. How long do you guarantee your pricing?
6. Are your fees negotiable?
Contract Provisions
1. Please provide a copy of a standard contract for a plan similar to Poudre Fire. Please review Poudre Fire’s standard
contract terms (attached) and comment on your ability to incorporate their terms. Please comment on your flexibility in
incorporating client changes or additions, including ability to include service standards with monetary damages paid
back to the plan for non-compliance.
2. Are you able to comply with the term of the contract being no longer than 3 years and after the initial term, termination
can be made by either party, with or without cause with 60 days notice?
3. Describe any conditions or exceptions that your company must impose. Note that it is not expected that any significant
required conditions or exceptions to the services required under the RFP will be accepted.
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REVIEW AND ASSESSMENT
Professional firms will be evaluated on the following criteria. These criteria will be the basis for review
of the written proposals and interview session. Responses to this request will be evaluated by
Innovest Portfolio Solutions LLC, the investment consultant retained by the plan for RFP services and
a staff committee. Summaries will be provided to Poudre Fire Authority and finalists may be asked to
make a presentation to the Board.
The rating scale shall be from 1 to 5, with 1 being a poor rating, 3 being an average rating, and 5
being an outstanding rating. Finalists will be selected based on the following factors as presented in
the bidder’s response to this request:
WEIGHTING
FACTOR
QUALIFICATION
STANDARD
2.0
Scope of Proposal
Does the proposal show an understanding of the project
objective, methodology to be used and results that are desired
for pension services including:
• Participant and plan sponsor customer service
• Universe of investment choices
• Quality of administrative, trustee and plan reporting
services and systems combined with innovative uses of
technology for the administration of the plan
• Success of plan conversions
• Ability to accept current payroll and eligibility file layout and
transmit in the current file layout format (copies are
attached)
• Employee education and communication program
• Ability to offer investment advice to participants
• Fees and cost of the program
• Complete and concise responses to inquiries in the
Statement of Plan Services
The evaluation criteria above are not listed in any specific order of
importance.
2.0
Assigned Personnel
Do the persons who will be working on the project have the
necessary skills? Are sufficient people of the requisite skills
assigned to provide pension services?
1.0
Availability
Can the work be completed in the necessary time? Can the
target start and completion dates be met? Are other qualified
personnel available to assist in meeting the project schedule if
required? Is the project team available to attend meetings as
required by the Scope of Work?
1.0
Motivation
Is the firm interested and are they capable of doing the work in
the required time frame?
2.0
Fees and Costs
How do the fees and costs compare to other proposals? What
is the overall perceived value to the plan?
2.0
Firm Capability
Does the firm have the support capabilities the assigned
personnel require? Has the firm done previous projects of this
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The project Manager will check references using the following criteria. The evaluation rankings will be
labeled Satisfactory/Unsatisfactory.
QUALIFICATION
STANDARD
Overall Performance
Would you hire this Professional again? Did
they show the skills required by this project?
Timetable
Was the original Scope of Work completed
within the specified time? Were interim
deadlines met in a timely manner?
Completeness
Was the Professional responsive to client
needs; did the Professional anticipate
problems? Were problems solved quickly and
effectively?
Budget
Was the original Scope of Work completed
within the project budget?
Job Knowledge
a) If a study, did it meet the Scope of Work?
b) If Professional administered a construction
contract, was the project functional upon
completion and did it operate properly?
Were problems corrected quickly and
effectively?
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SERVICES AGREEMENT
THIS AGREEMENT made and entered into the day and year set forth below by and between
POUDRE FIRE AUTHORITY acting through its agent THE CITY OF FORT COLLINS, COLORADO, a
Municipal Corporation, hereinafter referred to as the “City” and _________________, hereinafter
referred to as “Service Provider”.
WITNESSETH:
In consideration of the mutual covenants and obligations herein expressed, it is agreed by and
between the parties hereto as follows:
1. Scope of Services. The Service Provider agrees to provide services in accordance
with the scope of services attached hereto as Exhibit "A", consisting of ____ (____) page[s], and
incorporated herein by this reference.
2. The Work Schedule. [Optional] The services to be performed pursuant to this
Agreement shall be performed in accordance with the Work Schedule attached hereto as Exhibit "B",
consisting of ____ (____) page[s], and incorporated herein by this reference.
3. Time of Commencement and Completion of Services. The services to be performed
pursuant to this Agreement shall be initiated within ______________ (____) days following execution
of this Agreement. Services shall be completed no later than _______________. Time is of the
essence. Any extensions of the time limit set forth above must be agreed upon in a writing signed by
the parties.
4. Contract Period. [Option 1] This Agreement shall commence upon the date of
execution shown on the signature page of this Agreement and shall continue in full force and effect for
one (1) year, unless sooner terminated as herein provided. In addition, at the option of the City, the
Agreement may be extended for an additional period of one (1) year at the rates provided with written
notice to the Professional mailed no later than ninety (90) days prior to contract end.
4. Contract Period. [Option 2] This Agreement shall commence ________, 200_, and
shall continue in full force and effect until ________, 200_, unless sooner terminated as herein
SA 10/01
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provided. In addition, at the option of the City, the Agreement may be extended for additional one
year periods not to exceed ___ (_) additional one year periods. Pricing changes shall be negotiated
by and agreed to by both parties and may not exceed the Denver - Boulder CPI-U as published by the
Colorado State Planning and Budget Office. Written notice of renewal shall be provided to the
Service Provider and mailed no later than ninety (90) days prior to contract end.
5. Delay. If either party is prevented in whole or in part from performing its obligations by
unforeseeable causes beyond its reasonable control and without its fault or negligence, then the party
so prevented shall be excused from whatever performance is prevented by such cause. To the extent
that the performance is actually prevented, the Service Provider must provide written notice to the City
of such condition within fifteen (15) days from the onset of such condition.
[Early Termination clause here as an option.
6. Early Termination by City/Notice. Notwithstanding the time periods contained herein,
the City may terminate this Agreement at any time without cause by providing written notice of
termination to the Service Provider. Such notice shall be delivered at least fifteen (15) days prior to
the termination date contained in said notice unless otherwise agreed in writing by the parties. All
notices provided under this Agreement shall be effective when mailed, postage prepaid and sent to
the following addresses:
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City: Service Provider:
__________________________ ______________________________
__________________________ ______________________________
__________________________ ______________________________
In the event of early termination by the City, the Service Provider shall be paid for services rendered
to the date of termination, subject only to the satisfactory performance of the Service Provider's
obligations under this Agreement. Such payment shall be the Service Provider's sole right and remedy
for such termination.
7. Contract Sum. The City shall pay the Service provider for the performance of this
Contract, subject to additions and deletions provided herein, the sum of Dollars
($_________) [Option Cost Breakdown is attached Exhibit "C"]
8. City Representative. The City will designate, prior to commencement of the work, its
representative who shall make, within the scope of his or her authority, all necessary and proper
decisions with reference to the services provided under this agreement. All requests concerning this
agreement shall be directed to the City Representative.
9. Independent Service provider. The services to be performed by Service Provider are
those of an independent service provider and not of an employee of the City of Fort Collins. The City
shall not be responsible for withholding any portion of Service Provider's compensation hereunder for
the payment of FICA, Workmen's Compensation or other taxes or benefits or for any other purpose.
10. Personal Services. It is understood that the City enters into the Agreement based on
the special abilities of the Service Provider and that this Agreement shall be considered as an
agreement for personal services. Accordingly, the Service Provider shall neither assign any
responsibilities nor delegate any duties arising under the Agreement without the prior written consent
of the City.
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11. Acceptance Not Waiver. The City's approval or acceptance of, or payment for any of
the services shall not be construed to operate as a waiver of any rights or benefits provided to the City
under this Agreement or cause of action arising out of performance of this Agreement.
12. Warranty.
(a) Service Provider warrants that all work performed hereunder shall be performed
with the highest degree of competence and care in accordance with accepted
standards for work of a similar nature.
(b) Unless otherwise provided in the Agreement, all materials and equipment
incorporated into any work shall be new and, where not specified, of the most
suitable grade of their respective kinds for their intended use, and all
workmanship shall be acceptable to City.
(c) Service Provider warrants all equipment, materials, labor and other work,
provided under this Agreement, except City-furnished materials, equipment and
labor, against defects and nonconformances in design, materials and
workmanship/workwomanship for a period beginning with the start of the work
and ending twelve (12) months from and after final acceptance under the
Agreement, regardless whether the same were furnished or performed by
Service Provider or by any of its subcontractors of any tier. Upon receipt of
written notice from City of any such defect or nonconformances, the affected
item or part thereof shall be redesigned, repaired or replaced by Service
Provider in a manner and at a time acceptable to City.
13. Default. Each and every term and condition hereof shall be deemed to be a material
element of this Agreement. In the event either party should fail or refuse to perform according to the
terms of this agreement, such party may be declared in default thereof.
14. Remedies. In the event a party has been declared in default, such defaulting party
shall be allowed a period of ten (10) days within which to cure said default. In the event the default
remains uncorrected, the party declaring default may elect to (a) terminate the Agreement and seek
damages; (b) treat the Agreement as continuing and require specific performance; or (c) avail himself
of any other remedy at law or equity. If the non-defaulting party commences legal or equitable actions
against the defaulting party, the defaulting party shall be liable to the non-defaulting party for the non-
defaulting party's reasonable attorney fees and costs incurred because of the default.
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15. Binding Effect. This writing, together with the exhibits hereto, constitutes the entire
agreement between the parties and shall be binding upon said parties, their officers, employees,
agents and assigns and shall inure to the benefit of the respective survivors, heirs, personal
representatives, successors and assigns of said parties.
16. Indemnity/Insurance. a. The Service Provider agrees to indemnify and save harmless
the City, its officers, agents and employees against and from any and all actions, suits, claims,
demands or liability of any character whatsoever brought or asserted for injuries to or death of any
person or persons, or damages to property arising out of, result from or occurring in connection with
the performance of any service hereunder.
b. The Service Provider shall take all necessary precautions in performing the work hereunder
to prevent injury to persons and property.
c. Without limiting any of the Service Provider's obligations hereunder, the Service Provider
shall provide and maintain insurance coverage naming the City as an additional insured under this
Agreement of the type and with the limits specified within Exhibit ___, consisting of ______ (___)
pages[s], attached hereto and incorporated herein by this reference. The Service Provider before
commencing services hereunder, shall deliver to the City's Director of Purchasing and Risk
Management, P. O. Box 580 Fort Collins, Colorado 80522 one copy of a certificate evidencing the
insurance coverage required from an insurance company acceptable to the City.
17. Entire Agreement. This Agreement, along with all Exhibits and other documents
incorporated herein, shall constitute the entire Agreement of the parties. Covenants or
representations not contained in this Agreement shall not be binding on the parties.
18. Law/Severability. The laws of the State of Colorado shall govern the construction
interpretation, execution and enforcement of this Agreement. In the event any provision of this
Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding
shall not invalidate or render unenforceable any other provision of this Agreement.
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19. Special Provisions. [Optional] Special provisions or conditions relating to the services
to be performed pursuant to this Agreement are set forth in Exhibit ___, consisting of _____ (____)
page[s], attached hereto and incorporated herein by this reference.
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THE POUDRE FIRE AUTHORITY ACTING
POUDRE FIRE AUTHORITY THROUGH ITS AGENT
BOARD OF DIRECTORS THE CITY OF FORT COLLINS
BY: ________________________ BY: __________________________________
Dick Rayner James B. O'Neill II, CPPO, FNIGP
Chairman Director of Purchasing and Risk Management
Date:_________________________________
ATTEST:
____________________________
City Clerk
APPROVED AS TO FORM:
____________________________
Assistant City Attorney
[Insert Professional's name] or
[Insert Partnership Name] or
[Insert individual's name]
Doing business as ____[insert name of business]
By: _________________________________
______________________________________
PRINT NAME
______________________________________
CORPORATE PRESIDENT OR VICE PRESIDENT
Date:_________________________________
ATTEST: (Corporate Seal)
___________________________
CORPORATE SECRETARY
EXHIBIT B
INSURANCE REQUIREMENTS
1. The Service Provider will provide, from insurance companies acceptable to the City, the insurance
coverage designated hereinafter and pay all costs. Before commencing work under this bid, the Service
Provider shall furnish the City with certificates of insurance showing the type, amount, class of operations
covered, effective dates and date of expiration of policies, and containing substantially the following
statement:
"The insurance evidenced by this Certificate will not be cancelled or materially altered, except after ten (10)
days written notice has been received by the City of Fort Collins."
In case of the breach of any provision of the Insurance Requirements, the City, at its option, may take out and
maintain, at the expense of the Service Provider, such insurance as the City may deem proper and may
deduct the cost of such insurance from any monies which may be due or become due the Service Provider
under this Agreement. The City, its officers, agents and employees shall be named as additional insureds on
the Service Provider's general liability and automobile liability insurance policies for any claims arising out of
work performed under this Agreement.
2. Insurance coverages shall be as follows:
A. Workers' Compensation & Employer's Liability. The Service Provider shall maintain during the
life of this Agreement for all of the Service Provider's employees engaged in work performed under this
agreement:
1. Workers' Compensation insurance with statutory limits as required by Colorado law.
2. Employer's Liability insurance with limits of $100,000 per accident, $500,000 disease
aggregate, and $100,000 disease each employee.
B. Commercial General & Vehicle Liability. The Service Provider shall maintain during the life of
this Agreement such commercial general liability and automobile liability insurance as will provide coverage
for damage claims of personal injury, including accidental death, as well as for claims for property damage,
which may arise directly or indirectly from the performance of work under this Agreement. Coverage for
property damage shall be on a "broad form" basis. The amount of insurance for each coverage, Commercial
General and Vehicle, shall not be less than $500,000 combined single limits for bodily injury and property
damage.
In the event any work is performed by a subcontractor, the Service Provider shall be responsible for any
liability directly or indirectly arising out of the work performed under this Agreement by a subcontractor, which
liability is not covered by the subcontractor's insurance.
P943 Pension Services Poudre Fire Authority
Documents included with this RFP:
I. Investment Policy 08/13/03
II. New Hire 1st Amendment
III. New Hire 2nd Amendment
IV. New Hire 3rd Amendment
V. New Hire Reinstatement 09/2001
VI. Old Hire 1st Amendment
VII. Old Hire 2nd Amendment
VIII. Old Hire 3rd Amendment
IX. Old Hire Reinstatement 09/2001
I.
Investment Policy
08/13/03
INVESTMENT POLICY
FOR
POUDRE FIRE AUTHORITY NEW HIRE MONEY PURCHASE PENSION PLAN
Adopted on January 27, 1999
Amended August 13, 2003
TABLE OF CONTENTS
I. Statement of Purpose
II. Background
III. Responsibilities of Parties
IV. Investment Goal and Guidelines
V. Plan Administration Selection, Review, and Responsibilities
VI. Investment Options Selection and Review
Investment Policy 1
I. Statement of Purpose
The purpose of this policy is to clearly prescribe suitable and professional management
procedures for the Poudre Fire Authority=s 401(a) retirement investment process. To foster
reasonable standards of due diligence and procedural prudence, this policy will outline the
responsibilities of all parties involved, the methods of meaningful communication among the
parties, clearly delineate the investment goal and guidelines, and set forth performance
standards for all investment options.
II. Background
The Plans are exempt alternative Plans and offer participant-directed investments consistent
with C.R.S. ''31-30.5-803 and 31-31-602. Participants in the Plans are responsible for making
their own investment decisions, and may select from an array of investment alternatives.
Neither the Trustees nor the employer(s) sponsoring the Plans are liable for any loss or breach
of duty resulting from a participant=s direction of the investments in his or her individual
account.
The employer and employee each contribute 8% of the employees= salary to the employees=
retirement account. Participants may self-direct their investments as soon as they become
eligible to participate in the Plans, have a balance in their accounts, and complete and return an
investment election form. If no election form is returned, participants= accounts will be
invested in Guaranteed Interest until the election form is received. Participants may select from
a range of investments, change investments, and will receive financial and activity statements
as prescribed by state law.
The Boards of Trustees are composed of both employee and employer representatives. The
Trustees are elected or appointed as prescribed in the retirement Plan documents. Any
questions concerning this investment policy should be directed to a member of the Boards of
Trustees.
III. Responsibilities of the Parties
A. Responsibilities of the Boards of Trustees
1. The Trustees possess those powers and responsibilities set forth in Article VIII
of the Poudre Fire Authority New and Old Hire Plans and Article IX of the
District Old Hire Plan. The Trustees shall manage the Plan assets pursuant to
the terms and conditions of the Plans and solely in the interest of the
beneficiaries.
Investment Policy 2
2. The Trustees shall exercise reasonable care, skill, and caution in making
investment alternatives available to participants under the Plans.
3. The Trustees shall (i) select at least three investment alternatives, each of which
is diversified in itself, that allow the participant a broad range of investments
and a meaningful choice between risk and return in the investment of the
participant=s accrued benefit; (ii) allow the participant to change investments at
least once each calendar quarter; and (iii) provide the participant with
information describing the investment alternatives and the nature, investment
performance, fees, and expenses of the investment alternatives and other
information to enable a participant to make informed investment decisions.
4. The Trustees may delegate management and administrative functions and
fiduciary responsibilities that prudent trustees of comparable skills could
properly delegate under the circumstances.
5. The Trustees shall exercise reasonable care, skill, and caution in selecting
agents, establishing the scope and terms of the delegation consistent with the
purposes and terms of the Plans, and periodically reviewing the agents= actions
in order to monitor the agents= performance and compliance with the terms of
the delegation.
B. Responsibilities of Agents
1. In performing a delegated function, an agent owes a duty to the Plans to utilize
the same care, skill, prudence and due diligence under the circumstances then
prevailing that experienced investment professionals acting in a like capacity
and fully familiar with such matters would use in like activities for like
retirement plans with like aims, in accordance and compliance with all
applicable laws, rules and regulations from local, state, federal and international
political entities as they pertain to fiduciary duties and responsibilities.
C. Responsibilities of Participants
1. Each participant shall provide timely input to the Trustees concerning his or her
level of satisfaction with the Plans, the Trustees= management of the Plans, and
any agent=s performance.
2. Each participant shall take advantage of investment education opportunities and
written materials provided by the Trustees and agents to become fully informed
as to the nature of the Plan investment option alternatives, the investment option
performance, fees, and expenses of the investment option alternatives, and other
information to enable a participant to make informed investment decisions.
Investment Policy 3
3. Each participant shall take responsibility for his or her investment decisions and
realize that each participant is responsible for his or her own retirement
planning.
IV. Investment Goal & Guidelines
The paramount goal of this policy is to enable employees to utilize sound investment practices
to develop an investment portfolio tailored to their own risk, return, and time-line preferences.
To meet this goal the following guidelines will be applied to the selection of investment
alternatives and to administration of the investment process:
A. Diversification within investment categories and with regard to the range of investment
options.
B. Timely investment performance information.
C. Meaningful range of risk and return options.
D. Readily available investment educational opportunities.
E. Full disclosure of investment costs.
F. Procurement of competent professionals to help administer the retirement investment
process including assisting the Boards on management matters and providing
educational opportunities to Plan participants.
V. Plan Administration Selection, Review, and Responsibilities
A. The Boards may select one or more agents as plan administrators to provide services to
the Boards. The plan administrator shall be a bank, insurance company, investment
management company, or an investment advisor as defined by the Registered
Investment Advisors Act of 1940. The Boards shall periodically review the
performance of the plan administrators to ensure that the plan administrators are
competently and professionally performing their duties as delegated to them by the
Boards. The frequency of such periodic review shall be as determined by the Boards,
but shall not be less frequent than biennially. Such review may include, but is not
limited to, the following criteria:
1. Ability to and record of satisfactorily satisfying those responsibilities set forth in
subsection B of this Article V.
2. Level and quality of services provided to the Boards and participants.
Investment Policy 4
3. Cost of services provided.
4. Nature, quality, and costs of investment options offered.
5. Quality and frequency of educational opportunities offered.
6. Quality of advice provided to the Boards.
7. Financial stability and integrity of the plan administrator and its personnel.
B. Unless otherwise specified by the Boards, the plan administrator shall be delegated the
following responsibilities:
1. Provide advice to the Boards concerning the selection and retention of mutual
funds and other investment options based upon the criteria set forth in Article VI
A of this policy.
2. Provide data, analysis, and recommendations to the Boards in order to allow the
Boards to conduct the annual review of investment options as described in
Article VI B of this policy.
3. Notify the Boards when any of the criteria set forth in Article VI C of this policy
indicate the need for a review of an investment option pursuant to said
provisions.
4. Promptly inform the Boards of all significant and/or material matters and
changes pertaining to any investment option offered by the Plans, including, but
not limited to any of the following:
a. Investment strategy;
b. Portfolio structure;
c. Tactical approaches;
d. Ownership;
e. Organizational structure;
f. Financial condition;
g. Professional staff;
h. Recommendations for guideline changes;
i. All legal matters and regulatory agency proceedings affecting the
investment option.
5. Implement, maintain, and document a Plan participant communication system
which assures Plan members easy and efficient access to information
concerning: investment options and alternatives; risk and return associated with
the investment options; the nature, investment performance, fees, and expenses
Investment Policy 5
of the investment option alternatives; and other information to enable a
participant to make informed investment decisions.
6. Implement, maintain, and document a Plan participant education program which
assures Plan members of easy and efficient access to understandable retirement
investment education concepts and information.
VI. Investment Options Selection and Review
A. General Criteria. In its selection and retention of mutual funds or other investment
options to be offered to Plan members, the Board may consider, but is not limited to, the
following:
1. performance of the investment option;
2. an examination of the return and risk history;
3. the reputation and the financial stability of the investment option and investment
option manager(s) in the industry;
4. the quality of the investment option management company;
5. size of the investment option;
6. name recognition by the public;
7. rating and rankings by independent investment option tracking and monitoring
services;
8. review of investment option operating expense information;
9. the prospectus of the investment option;
10. the compatibility with other investment options available in the Plan, and;
11. review of the investment style and composition of the investment option.
B. Annual Review of Investment Options.
1. An annual review of investment options performance will be conducted in April
of each year, or as soon thereafter as deemed reasonable by the Board, to test
Investment Policy 6
progress toward the attainment of longer term goals. Morningstar, Inc. will be
used for performance data for any openly traded investment option. Proprietary
investment options will be required to provide the necessary data to the Board
for review prior to the April performance review. It is understood that there are
likely to be short-term periods during which performance deviates from market
indexes. During such times, greater emphasis shall be placed on peer-
performance comparisons with managers employing similar styles.
2. The annual review by the Board will, at a minimum, focus on:
a. Investment option manager adherence to the Policy guidelines;
b. material changes in the investment option manager=s organization,
investment philosophy, and/or personnel;
c. Comparisons of the investment option manager=s results to appropriate
indexes and peer groups, specifically:
Asset Category
Domestic Large
Capitalization Equities:
Value
Yield
Growth
Core
Domestic Small
Capitalization Equities
International Equities:
Core
Domestic Fixed Income:
Bond
Guaranteed Income Funds
Index
S&P 500
S&P500
S&P500
S&P500
S&P500
Russell 2000
MSCI EAFE
Lehman/Government/
Corporate Intermediate
5 Year Treasury
Peer Group Universe
Total Equity Database
Value Equity Style
Yield Equity Style
Growth Equity Style
Core Equity Style
Small Capitalization Equity
International Equity
Core Fixed Municipal Bond
Fund Database
Intermediate Style
Investment Policy
7
Any other types of funds or other investment options adopted by the Boards of
Trustees will use Peer Group Universe and Index used by Morningstar, Inc. in
their reporting of the specific investment option=s performance, to the extent
reasonably possible.
3. The risk associated with each investment option=s portfolio, as measured by the
variability of annual returns (standard deviation), should not exceed that of the
benchmark index and the peer group without a corresponding increase in
performance above the benchmark and peer group.
4. Each investment option is expected to perform in the upper half of the respective
style universe. Investment options not meeting these expectations will be
reviewed again at the meeting of the Board of Trustees 6 months from the initial
review, or as soon thereafter as deemed reasonable by the Board.
C. Other Review of Investment Options.
1. The Boards are aware that the ongoing review and analysis of investment
options is just as important as the due diligence implemented during the initial
selection process. The Boards may, in their discretion, take corrective action by
replacing an investment option if they deem it appropriate at any time.
Accordingly, a thorough review and analysis of an investment option will be
conducted if:
a. an investment option performs in the bottom quartile (75 percentile) of
the peer group over an annual period;
b. an investment option manager falls in the southeast quadrant of the
risk/return scattergram for three year time periods as compared to the
appropriate index as listed in Section VI.B.2.c. [amended 8/13/03];
c. an investment option has a five-year risk-adjusted return that falls below
that of the median within the appropriate peer group.
2. Performance that may require the replacement of an investment option includes:
a. an investment option or investment option manager that performs below
the median (50th percentile) of the peer group over rolling three year
periods for more than three quarters;
b. an investment option or investment option manager that performs below
the median (50th percentile) of the peer group over a five year period;
c. an investment option or investment option manager with a negative alpha
for three and/or five year periods.
3. Major organizational changes or events that may warrant review of an
investment option, include:
a. change in professionals;
Investment Policy
8
b. significant account losses in relation to the peer group or general market
conditions;
c. significant growth of new business;
d. change in ownership;
e. the investment option manager or other associated professionals being
named in significant legal action related to the operation of the
investment option.
II.
New Hire 1st Amendment
Resolution 02- ______
Adopting the First Amendment to the
Poudre Fire Authority New Hire Money Purchase Pension Plan
And Trust Agreement as Amended and Restated, Effective December 24, 2001
WHEREAS, the Poudre Fire Authority (the "Employer"), established the Poudre Fire Authority
New Hire-City Money Purchase Pension Plan and Trust Agreement (the "Plan"), effective January 1,
1988; and
WHEREAS, the Employer adopted the amended and restated Plan, effective December 24,
2001; and
WHEREAS, pursuant to ' 11.1 of the Plan, the Employer has the authority to amend the Plan
without a vote of the actively-employed eligible employees providing the amendments are minor,
technical amendments required from time to time by changes in state or federal laws or regulations;
and
WHEREAS, the Employer deems it advisable to amend the Plan to comply with the Economic
Growth and Tax Relief Reconciliation Act of 2001 (EGTRRA) and with technical tax requirements
requested by the Internal Revenue Service in conjunction with the request for a determination letter;
and
WHEREAS, the Board of Trustees of the Poudre Fire Authority New Hire Money Purchase
Pension Plan and Trust Agreement have recommended the adoption of the Plan amendments set forth
herein.
NOW, THEREFORE, be it resolved by the Board of Directors of the Poudre Fire Authority
that the Plan is hereby amended, effective January 1, 2002 as follows:
1. ARTICLE II. DEFINITIONS AND CONSTRUCTION, ' 2.1 Definitions (e) Compensation
shall be revised to read as follows:
(e) Compensation: A Participant's base salary received from the Employer
for personal services during the Year, but excluding holiday pay, acting officer pay,
longevity pay, bonus payments, payments for unused vacation, overtime, uniform
cleaning and travel allowances, and excluding any benefits paid under this Plan or any
other retirement or life insurance program or under any other health or welfare plan.
For purposes of allocating the Employer's contribution for the Year in which a
Participant begins or resumes Participation, Compensation shall be determined as of the
first day of the year in which the Employee became a Participant and Compensation
before his Participation began or resumed shall be disregarded. Contributions shall be
made on a Participant's base salary as defined herein, before taking into account
amounts contributed by the Employer pursuant to a salary reduction agreement which
were excludable from the Employee's gross income under Code Section 125, Code
Section 132(f)(4), Code Section 402(a)(8), Code Section 403(b) or Code Section 402(h)
or 457. Effective January 1, 2002, Compensation in excess of $ 200,000, as adjusted for
cost-of-living increases in accordance with section 401(a)(17)(B) of the Code, shall not
be taken into account under the Plan.
2. ARTICLE II. DEFINITIONS AND CONSTRUCTION, ' 2.1 Definitions new section (r)
Leased Employee shall be added, with the subsequent sections to be re-lettered, to read as follows:
(r) Leased Employee: Any person who is not an employee of the recipient
and pursuant to an agreement between the Employer and any other person, has
performed services for the Employer on a substantially full time basis for a period of at
least one year, and such services are performed under the primary direction and control
of the Employer. Contributions or benefits provided a leased employee by the leasing
organization which are attributable to services performed for the Employer shall be
treated as provided by the Employer. A Leased Employee or Employee shall not be
considered an employee of the Employer if: (i) such Employee is covered by a money
purchase pension plan providing (1) a non-integrated Employer contribution rate of at
least 10% of Compensation, as defined in Code Section 415(c)(3), but including
amounts contributed by the Employer pursuant to a salary reduction agreement which
were excludable from the Employee's gross income under Code Section 125, Code
Section 132(f)(4), Code Section 402(a)(8), Code Section 403(b) or Code Section
402(h), (2) immediate participation, and (3) full and immediate vesting; and (ii) leased
employees do not constitute more than 20% of the Employer's non-highly compensated
work force.
3. ARTICLE IV. CONTRIBUTIONS AND FORFEITURES, ' 4.2 Contributions by
Participants, (b) Voluntary Contributions is hereby amended by the replacement of the first sentence to
read as follows:
(b) Voluntary Contributions: In order to encourage savings and investments
by Participants, effective January 1, 2002, each Participant voluntarily may contribute
to the Trust an amount not to exceed seventy-two percent (72%) of Compensation in
addition to contributions under subparagraph (a) of this subsection, and subject to the '
5.3 maximum additions limit.
4. ARTICLE V. ALLOCATIONS TO PARTICIPANTS' ACCOUNTS, ' 5.3 Maximum
Additions, shall be revised to read as follows:
5.3 Maximum Additions: Notwithstanding anything contained herein to the
contrary, the total Additions made to the Employer and Employee Contribution
Accounts of a Participant for any Year shall not exceed the "Maximum Permissible
Amount," reduced by the sum of any Additions allocated to the Participant's accounts
for the same Year under any other defined contribution plan or welfare benefit fund (as
defined in Code Section 419(e)) maintained by the employer. The Maximum
Permissible Amount shall be equal to the lesser of $ 40,000 or 100% of the Participant's
Compensation for such Year, or such amount as provided in '415 of the Code.
(a) The term "Additions" means the total of the Employer
contributions and forfeiture amounts allocated to a Participant's Employer Contribution
Account, plus the amount of any Employee Contributions to the Plan. Amounts
allocated to an individual medical account (as defined in Code Section 415(l)(2))
included as part of a defined benefit plan maintained by the Employer are Additions.
Furthermore, Additions include contributions paid or accrued attributable to post-
retirement medical benefits allocated to the separate account of a key employee (as
defined in Code Section 419A(d)(3)) under a welfare benefit fund (as defined in Code
Section 419(e)) maintained by the Employer.
(b) "Addition" does not include "rollovers" from an eligible
retirement plan as defined for the purpose of the direct rollover provisions of '6.6.
(c) As of January 1 of each calendar year, and applicable for that
Plan Year, the dollar limit may be adjusted for increases in the cost of living in
accordance with regulations prescribed by the Secretary of the Treasury or his delegate.
If such additions exceed the limitation, the contributions made by the Participant for the
Year, which cause the excess, shall be returned to the Participant. If, after returning the
Participant's contribution an excess still exists, such excess which is attributable to
Forfeitures shall be held in a suspense account. Such account may be maintained if
(1) no Employer contributions are made when their allocation could be precluded by
Code Section 415, (2) no income is allocated to the account, and (3) amounts in the
account are allocated as of each allocation date on which Forfeitures may be allocated
until the account is exhausted. Upon termination of the Plan, the balance of such
account may revert to the Employer.
(d) For purposes of this section, the limitation year shall mean the
Plan Year. The term "Compensation" means, for purposes of Sections 5.3 and 5.4 only,
a Participant's earned income, wages, salaries, fees for professional services and other
amounts received for personal services actually rendered in the course of employment
with the employer maintaining the Plan, including cash awards and Elective
Contributions, provided, however, that for Plan Years beginning before January 1,
1998, such amounts shall not be included in Compensation for the purpose of applying
the limitations on allocations and benefits under Code Section 415. AElective
Contributions@ are amounts excludible from an Employee=s gross income under Code
Sections 125, 132(f)(4), 402(e)(3), 403(b), 402(h)(1)(B), or 457, or any other Elective
Deferrals as defined in Code Section 402(g)(3).
5. ARTICLE VI. BENEFITS, ' 6.6 Direct Transfers and Rollovers, paragraphs two and three
shall be amended to read as follows:
An eligible rollover distribution is any distribution of all or any portion of the
balance to the credit of the Participant, 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 Code
Section 401(a)(9); and (iii) the portion of any distribution that is not includible in gross
income (determined without regard to the exclusion for net unrealized appreciation with
respect to employer securities). For purposes of the direct rollover provisions in this '
6.6, 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 Code ' 408(a) or (b), or to a
qualified defined contribution plan described in Code ' 401(a) or 403(a) 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.
An eligible retirement plan is an individual retirement account described in
Code Section 408(a), an individual retirement annuity described in Code
Section 408(b), an annuity plan described in Code Section 403(a), or a qualified trust
described in Code Section 401(a) that accepts the distributee's eligible rollover
distribution. For purposes of the direct rollover provisions in this ' 6.6, an Eligible
Retirement Plan shall also mean an annuity contract described in Code ' 403(b) and an
eligible plan under Code ' 457(b) 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. 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 domestic relations order, as defined in Code ' 414(p).
IN WITNESS WHEREOF, this Resolution was adopted by the Poudre Fire Authority this ____
day of ________________, 2002.
POUDRE FIRE AUTHORITY
By: ______________________________
Its: ______________________________
ATTEST:
By: ______________________________
Its: _____________________________
III.
New Hire 2nd Amendment
Resolution 03-5
Adopting the Second Amendment to the
Poudre Fire Authority New Hire Money Purchase Pension Plan
And Trust Agreement as Amended and Restated, Effective December 24, 2001
WHEREAS, the Poudre Fire Authority (the "Employer"), established the Poudre Fire Authority
New Hire-City Money Purchase Pension Plan and Trust Agreement (the "Plan"), effective January 1,
1988; and
WHEREAS, the Employer adopted the amended and restated Plan (the “2001 Restated Plan”),
effective December 24, 2001; and
WHEREAS, the Employer adopted via Resolution 02-14 the first amendment to the 2001
Restated Plan effective January 1, 2002; and
WHEREAS, the Board of Trustees of the Poudre Fire Authority New Hire Money Purchase
Pension Plan and Trust Agreement have recommended the adoption of the 2001 Restated Plan
amendments set forth herein; and
WHEREAS, pursuant to ' 11.1 of the 2001 Restated Plan, the Employer has the authority to
amend the Plan with the approval of at least sixty-five percent of the total votes cast by actively-
employed eligible Employees and all former employees who are entitled to a benefit from the 2001
Restated Plan; and
WHEREAS, after a duly conducted election, the 2001 Restated Plan amendments set forth
herein were approved by at least sixty-five percent of the total votes cast by actively-employed eligible
Employees and all former employees who are entitled to a benefit from the 2001 Restated Plan.
NOW, THEREFORE, be it resolved by the Board of Directors of the Poudre Fire Authority
that the 2001 Restated Plan is hereby amended, effective April 22, 2003 as follows:
1. ARTICLE VII. THE TRUST AND TRUST FUND, ' 7.13 Loans to Participants shall be
revised to read as follows:
7.13 Loans to Participants:
(a) General Rules: The Trustees, in accordance with a uniform and
nondiscriminatory policy, may make a loan to any Participant (for purposes of this
Section 7.13, the term “Participant” shall include “Former Participant”) who makes a
written request for such a loan. The Trustees will promulgate rules and procedures
regarding Participant loans. No loan to a Participant may exceed the Participant's
vested Accrued Benefit. In addition, a loan, when added to the outstanding balance of
all other loans to the Participant from this and any other qualified Plan maintained by
the Employer, may not exceed the lesser of: (1) $50,000 less the excess of the highest
outstanding balance of loans from the Plan during the one-year period ending on the day
before such loan is made over the outstanding balance of loans from the Plan on the day
such loan is made; or (2) the greater of one-half of the value of the Participant's vested
Accrued Benefit as of the last preceding valuation date or $10,000.
(b) Security and Interest: All loans will be adequately secured and
will bear a rate of interest considered reasonable on the date the loan was made.
Participant loans will be considered a Participant-directed investment under Section 7.2
of the Participant requesting the loan and interest paid on the loan will be allocated to
the account of the Participant-borrower.
(c) Term of Loan: Any loan must be repaid in level payments of
principal and interest at least quarterly within five years of the date on which it was
made. However, any loan verified by the Trustees as used to acquire any dwelling unit
used or to be used within a reasonable time as the principal residence of the Participant
must be repaid within the time prescribed by the Trustees. If a Participant does not
repay a loan within the time prescribed, in addition to enforcing payment through any
legal remedy, the Trustees may deduct the total amount of the loan and any unpaid
interest due on it from the Participant's Account when the Account becomes
distributable under the Plan.
IN WITNESS WHEREOF, this Resolution was adopted by the Poudre Fire Authority this 22nd
day of April, 2003.
POUDRE FIRE AUTHORITY
By: ______________________________
Its: ______________________________
ATTEST:
By: ______________________________
Its: ______________________________
IV.
New Hire 3nd Amendment
Resolution 04-2
Adopting the Third Amendment to the Poudre Fire Authority
New Hire Money Purchase Pension Plan and Trust Agreement
as Amended and Restated Effective December 24, 2001
WHEREAS, the Poudre Fire Authority (the "Employer"), established the Poudre Fire Authority
New Hire Money Purchase Plan and Trust Agreement (the "Plan"), effective January 1, 1988; and
WHEREAS, the Employer adopted the amended and restated Plan, effective December 24,
2001 (the A2001 Restated Plan@); and
WHEREAS, the Employer adopted via Resolution 02-14 the First Amendment to the 2001
Restated Plan effective January 1, 2002; and
WHEREAS, the Employer adopted via Resolution 03-5 the Second Amendment to the 2001
Restated Plan effective April 22, 2003; and
WHEREAS, the Board of Trustees of the Poudre Fire Authority New Hire Money Purchase
Pension Plan and Trust Agreement have recommended the adoption of the amendments set forth
herein; and
WHEREAS, pursuant to '11.1 of the 2001 Restated Plan, the Employer has the authority to
amend the Plan without the approval of Participants of said Plan solely for the purpose of incorporating
minor, technical amendments which are required from time to time by changes in state or federal laws
or regulations; and
WHEREAS, the Employer deems it advisable to amend the Plan and desires to further amend
the Plan to incorporate the minimum required distribution provisions of Code '401(a)(9) and the Final
Regulations thereunder, as required pursuant to IRS Revenue Procedure 2002-29.
NOW, THEREFORE, be it resolved by the Board of Directors of the Poudre Fire Authority
that the 2001 Restated Plan is hereby amended, effective January 1, 2003, as follows:
1. ARTICLE VII., DISTRIBUTION FROM TRUST FUND, '6.3, Post-Death
Distribution, shall be deleted in its entirety and replaced by a new '6.3, Required Minimum
Distribution Rules, to read as follows:
6.3 Required Minimum Distribution Rules
a. General Rules.
(1) Effective Date. The provisions of this Section 6.3 will apply for
purposes of determining required minimum distributions for calendar years
beginning with the 2003 calendar year.
(2) Precedence. The requirement of this Section 6.3 will take
precedence over any inconsistent provisions of the plan.
(3) Requirements of Treasury Regulations Incorporated. All
distributions required under this Section 6.3 will be determined and made in
accordance with the Treasury Regulations under Code '401(a)(9).
(4) TEFRA '242(b)(2) Elections. Notwithstanding the other
provisions of this Section 6.3, distributions may be made under a designation
made before January 1, 1984, in accordance with '242(b)(2) of the Tax Equity
and Fiscal Responsibility Act (TEFRA) and the provisions of the plan that relate
to '242(b)(2) of TEFRA.
b. Death of Participant Before Distribution 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 6.3(b), other than
Section 6.3(b)(1), will apply as if the surviving spouse were the Participant.
(5) For purposes of this Section 6.3(b) and Section 6.3(d), unless
Section 6.3(b)(4) applies, distributions are considered to begin on the
Participant's required beginning date. If Section 6.3(b)(4) applies, distributions
are considered to begin on the date distributions are required to begin to the
surviving spouse under Section 6.3(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 6.3(b)(1)), the date distributions are considered to begin is the
date distributions actually commence.
c. Required Minimum Distributions During Participant's Lifetime.
(1) 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:
(i) the quotient obtained by dividing the Participant's account
balance by the distribution period in the Uniform Lifetime Table set forth in
'1.401(a)(9)-9 of the Treasury Regulations, using the Participant's age as of the
Participant's birthday in the distribution calendar year; or
(ii) 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 '1.401(a)(9)-9 of the Treasury Regulations, using the
Participant's and spouse's attained ages as of the Participant's and spouse's
birthdays in the distribution calendar year.
Required minimum distributions will be determined under this
Section 6.3(c) beginning with the first distribution calendar year and up to and
including the distribution calendar year that includes the Participant's date of
death.
d. Required Minimum Distributions After Participant's Death.
(1) Death On or After Date Distributions Begin.
(i) 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:
(A) 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.
(B) 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.
(C) 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.
(ii) 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.
(2) Death Before Date Distribution Begin.
(I) Participant Survived by Designated Beneficiary. If the
Participant dies before the date distributions begin and there is a designated
beneficiary, the minimum amount that will be distributed for each distribution
calendar year after the year of the Participant's death is the quotient obtained by
dividing the Participant's account balance by the remaining life expectancy of
the Participant's designated beneficiary, determined as provided in Section
6.3(d)(1).
(ii) 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.
(iii) Death of Surviving Spouse Before Distributions to
Surviving Spouse Are Required to Begin. If the Participant dies before the date
distributions begin, the Participant's surviving spouse is the Participant's sole
designated beneficiary, and the surviving spouse dies before distributions are
required to begin to the surviving spouse under Section 6.3(b)(1), this Section
6.3(d)(2) will apply as if the surviving spouse were the Participant.
e. Definitions. The following definitions apply to this Section 6.3.
(1) Designated Beneficiary. The individual who is designated as the
Beneficiary by the Participant, or by the Plan, who is a "designated beneficiary"
under Code '401(a)(9) and '1.401(a)(9)-1, Q&A-4, of the Treasury
Regulations.
(2) Distribution Calendar Year. A calendar year for which a
minimum distribution if 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 6.3(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.
(3) Life Expectancy. Life expectancy as computed by use of the
Single Life Table in '1.401(a)(9)-9 of the Treasury Regulations.
(4) Participant's Account Balance. The balance of the Participant's
Account as of the last valuation date in the calendar year immediately preceding
the distribution calendar year (valuation calendar year) increased by the amount
of any contributions made and allocated or forfeitures allocated to the Account
as of dates in the valuation calendar year after the valuation date and decreased
by distributions made in the valuation calendar year after the valuation date.
The account balance for the valuation calendar year includes any amounts rolled
over or transferred to the Plan either in the valuation calendar year or in the
distribution calendar year if distributed or transferred in the valuation calendar
year.
(5) Required Beginning Date. The latest date for commencement of
distributions for a Participant, as determined under Section 6.4 of the Plan
IN WITNESS WHEREOF, this Resolution was adopted by the Poudre Fire Authority this 24th
day of February, 2004.
POUDRE FIRE AUTHORITY
By: _________________________________
PFA Board Chair
ATTEST:
By: _________________________________
Recording Secretary
SAW\57133\386363.02
V.
New Hire Restatement
09/2001
SAW\57133\386363.02
RESTATED
POUDRE FIRE AUTHORITY
NEW HIRE MONEY PURCHASE PENSION PLAN
AND
TRUST AGREEMENT
December 24, 2001
SAW\57133\386363.02 i
TABLE OF CONTENTS
Page
ARTICLE I. PURPOSE .........................................................................................................................................1
ARTICLE II. DEFINITIONS AND CONSTRUCTION.........................................................................................2
2.1 Definitions.....................................................................................................................................................2
(a) Accrued Benefit.........................................................................................................................................2
(b) Aggregate Account....................................................................................................................................3
(c) Authorized Leave of Absence ...................................................................................................................3
(c) Beneficiary ................................................................................................................................................3
(d) Compensation............................................................................................................................................3
(e) Disability ...................................................................................................................................................3
(f) Effective Date............................................................................................................................................4
(g) Employee...................................................................................................................................................4
(h) Employee Contribution Account ...............................................................................................................5
(i) Employee Rollover Account .....................................................................................................................5
(i) Employee Voluntary Contribution Account..............................................................................................5
(j) Employer ...................................................................................................................................................5
(k) Employer Contribution Account ...............................................................................................................5
(l) Fiduciaries .................................................................................................................................................5
(m) Former Participant.....................................................................................................................................5
(o) Income.......................................................................................................................................................5
(p) Internal Revenue Code ..............................................................................................................................5
(q) Normal Retirement Age ............................................................................................................................5
(r) Participant..................................................................................................................................................5
(s) Participation...............................................................................................................................................5
(t) Plan............................................................................................................................................................6
(u) Service.......................................................................................................................................................6
(v) Trust (or Trust Fund).................................................................................................................................6
(w) Valuation Date...........................................................................................................................................6
(x) Year (Plan Year)........................................................................................................................................6
2.2 Construction ..................................................................................................................................................6
ARTICLE III. PARTICIPATION AND SERVICE..................................................................................................6
3.1 Participation ..................................................................................................................................................6
3.2 Participation Upon Re-Employment .............................................................................................................6
3.3 Mandatory Participation in Plan....................................................................................................................7
ARTICLE IV. CONTRIBUTIONS AND FORFEITURES ......................................................................................7
4.1 Employer Contributions ................................................................................................................................7
4.2 Contributions by Participants ........................................................................................................................7
4.3 Disposition of Forfeitures..............................................................................................................................8
4.4 Rollover Contributions ..................................................................................................................................8
ARTICLE V. ALLOCATIONS TO PARTICIPANTS' ACCOUNTS.....................................................................9
5.1 Individual Accounts ......................................................................................................................................9
5.2 Account Adjustments ....................................................................................................................................9
5.3 Maximum Additions....................................................................................................................................10
5.4 Multiple Plan Reduction..............................................................................................................................12
5.5 Qualified Military Service...........................................................................................................................13
5.6 Return of Contributions...............................................................................................................................13
ARTICLE VI. BENEFITS ......................................................................................................................................13
6.1 Benefits........................................................................................................................................................13
6.2 Payment of Benefits ....................................................................................................................................14
6.3 Post-Death Distribution...............................................................................................................................16
SAW\57133\386363.02 ii
6.4 Designation of Beneficiary..........................................................................................................................17
6.5 Distributions Under Domestic Relations Order...........................................................................................17
6.6 Direct Transfers and Rollovers....................................................................................................................17
ARTICLE VII. THE TRUST AND TRUST FUND.............................................................................................19
7.1 Contributions to Trust .................................................................................................................................19
7.2 Participant Direction of Investment.............................................................................................................19
7.3 Trustees' Powers and Duties........................................................................................................................20
7.4 Further Powers of the Trustees....................................................................................................................22
7.5 Investment Manager ....................................................................................................................................23
7.6 Claims Procedure ........................................................................................................................................24
7.7 Records and Reports....................................................................................................................................25
7.8 Other Administrative Powers and Duties ....................................................................................................25
7.9 Rules and Decisions ....................................................................................................................................26
7.10 Benefit Payments.........................................................................................................................................26
7.11 Application and Forms for Benefits ............................................................................................................26
7.12 Indemnification ...........................................................................................................................................26
7.13 Loans to Participants ...................................................................................................................................26
7.14 Payment of Expenses and Fees....................................................................................................................27
7.15 Protection of the Trustees............................................................................................................................28
7.16 Accounts of the Trustees .............................................................................................................................28
ARTICLE VIII. TRUSTEES .................................................................................................................................29
8.1 Trustees .......................................................................................................................................................29
8.2 Use of Corporate Trustee.............................................................................................................................30
8.3 Officers........................................................................................................................................................31
8.4 Officer Responsibilities...............................................................................................................................31
8.5 Annual Meeting...........................................................................................................................................31
8.6 Quorum........................................................................................................................................................32
8.7 Majority Vote ..............................................................................................................................................32
ARTICLE IX. FIDUCIARIES ................................................................................................................................32
9.1 Fiduciaries ...................................................................................................................................................32
9.2 General Fiduciary Duties.............................................................................................................................33
9.3 Bonding and Insurance................................................................................................................................33
9.4 Delegation of Authority...............................................................................................................................33
ARTICLE X. MISCELLANEOUS........................................................................................................................34
10.1 Nonguarantee of Employment.....................................................................................................................34
10.2 Rights to Trust Assets..................................................................................................................................34
10.3 Nonalienation of Benefits............................................................................................................................34
10.4 Payments to Minors or Persons of Unsound Mind......................................................................................35
10.5 Disposition of Unclaimed Payments ...........................................................................................................35
10.6 Severability of Provisions............................................................................................................................35
10.7 Trust and Plan to be Tax Exempt ................................................................................................................35
ARTICLE XI. AMENDMENT OR TERMINATION OF THE PLAN..................................................................36
11.1 Right and Restrictions .................................................................................................................................36
11.2 Merger or Consolidation of the Plan ...........................................................................................................36
ARTICLE XII. GOVERNING LAW ...................................................................................................................37
POUDRE FIRE AUTHORITY
NEW HIRE MONEY PURCHASE PENSION PLAN
AND
TRUST AGREEMENT
WHEREAS, Poudre Fire Authority continues, within this Trust Agreement, a Plan for the
administration and distribution of contributions made by the Employer and its eligible Employees for
the purpose of providing retirement benefits for its eligible Employees. The provisions of this Plan
shall apply solely to an Employee whose employment with the Employer terminates on or after the
restated Effective Date of the Plan. If an Employee's employment with the Employer terminates prior
to the restated Effective Date, that Employee shall be entitled to benefits under the Plan in which such
Employee participated, as such Plan existed on the date of the Employee's termination of employment.
Now, therefore, the Poudre Fire Authority amends and restates the New Hire Money Purchase
Pension Plan and Trust Agreement to be effective December 24, 2001, the terms of which shall
supersede the provisions of any plan in effect prior to December 24, 2001.
ARTICLE II. PURPOSE
Effective as of December 24, 2001, Poudre Fire Authority, known as the Employer, and
______, ______, ______, ______, and _______ as the Trustees, hereby adopt and establish the
Amended and Restated Poudre Fire Authority New Hire Money Purchase Pension Plan and Trust
Agreement.
The purpose of the Plan is to reward Employees of the Employer for their loyal and faithful
service, to help the Employees accumulate funds for their later years and to provide funds for their
beneficiaries in the event of death or disability. The benefits provided by this Plan will be paid from a
Trust Fund established by the Employer and will be in addition to the benefits Employees are entitled
to receive under any other programs of the Employer.
The provisions of this Plan and Trust shall apply only to an Employee who terminates
employment on or after the Effective Date of this Plan December 24, 2001). The rights and benefits, if
any, of a former employee whose employment terminated prior to December 24, 2001 shall be
New Hire Restatement
4
determined in accordance with the provisions of the Plan and Trust in effect on the date his
employment terminated.
The Plan is being established pursuant to C.R.S. § 31-30.5-802 and 31-31-601 and is a
governmental retirement plan exempt from the provisions of the Employee Retirement Income
Security Act. The Plan and Trust are intended to meet the requirements of Sections 401(a) and 501(a)
of the Internal Revenue Code of 1986 to the extent applicable to governmental plans.
ARTICLE III. DEFINITIONS AND CONSTRUCTION
3.1 Definitions: The following words and phrases, when used herein, unless their context
clearly indicates otherwise, shall have the following respective meanings:
(a) Accrued Benefit: Means the amount standing in a Participant's account(s) as of
any date derived from Employer contributions, Mandatory Participant Contributions and Rollover
Contributions.
(b) Aggregate Account: The value of all accounts maintained on behalf of a
Participant, whether attributable to Employer or Employee contributions or rollover accounts.
(c) Authorized Leave of Absence: Any absence authorized by the Employer under
the Employer's standard personnel practices provided that all persons under similar circumstances must
be treated alike in the granting of such Authorized Leaves of Absence and provided further that such
leave shall end as of the date it was extended to.
(d) Beneficiary: A person or persons (natural or otherwise) designated by a
Participant in accordance with the provisions of Section 6.4 to receive any death benefit which shall be
payable under this Plan.
(e) Compensation: A Participant's base salary received from the Employer for
personal services during the Year, but excluding holiday pay, acting officer pay, longevity pay, bonus
payments, payments for unused vacation, overtime, uniform cleaning and travel allowances, and
New Hire Restatement
5
excluding any benefits paid under this Plan or any other retirement or life insurance program or under
any other health or welfare plan. For purposes of allocating the Employer's contribution for the Year
in which a Participant begins or resumes Participation, Compensation shall be determined as of the
first day of the year in which the Employee became a Participant and Compensation before his
Participation began or resumed shall be disregarded. Contributions shall be made on a Participant's
base salary as defined herein, before taking into account the reduction of any salary deferrals under the
Employer's deferred compensation plan maintained under Code Section 457. Effective January 1,
1994, Compensation in excess of $150,000 (as adjusted by the Secretary of the Treasury for cost of
living increases or by Congress) shall not be taken into account under the Plan.
(f) Disability: Disability hereunder shall mean when a Participant is found by the
Board of Directors of the Colorado Fire and Police Pension Association to be eligible for disability
benefits as a result of such Participant's becoming totally disabled or occupationally disabled as
provided under and defined in C.R.S. Section 31-31-803.
(g) Effective Date: The original effective date is January 1, 1988. The Effective
Date of this amended and restated Plan shall be December 24, 2001, except as otherwise noted.
(h) Employee: Employee shall mean any person:
(1) who is employed by the Employer on or after the Effective Date;
(2) whose most recent employment with the Employer or the City of Fort
Collins, Colorado (the "City") commenced on or after April 8, 1978 and
(3) who is paid by the Employer on a salary basis; and
(4) whose duties are directly involved with the provision of fire protection as
certified by the Employer.
The term "Employee" shall not mean nor include clerical or other personnel
whose services for the Employer are auxiliary to actual fire protection or any volunteer firefighter, as
defined in C.R.S. Section 31-30-1102(9), as may be amended from time to time.
New Hire Restatement
6
The Employer shall, under its current employment policies, make the
determination of whether a person employed by it meets the definition of "Employee" as set forth
herebefore in this Section 2.1(h).
(i) Employee Contribution Account: The account maintained for a Participant to
record his mandatory contributions to the Plan and adjustments relating thereto.
(j) Employee Rollover Account: The account established to hold and account for
the contributions rolled over by a Participant from Prior Plans or any other qualified rollover.
(k) Employee Voluntary Contribution Account: The account maintained for a
Participant to record his voluntary contribution to the Trust and adjustments relating thereto.
(l) Employer: The Employer shall mean the Poudre Fire Authority.
(m) Employer Contribution Account: The account maintained for a Participant to
record his share of the contributions of the Employer and adjustments relating thereto.
(n) Fiduciaries: The Employer and the Trustees, but only with respect to the
specific responsibilities of each for Plan and Trust administration, all as described in Article IX.
(o) Former Participant: A Participant whose employment with the Employer has
terminated but who has a vested account balance under the Plan which has not been paid in full.
(p) Income: The net gain or loss of the Trust Fund from investments, as reflected
by interest payments, dividends, realized and unrealized gains and losses on securities, other
investment transactions and expenses paid from the Trust Fund. In determining the Income of the
Trust Fund for any period, assets shall be valued on the basis of their fair market value.
(q) Internal Revenue Code: The Internal Revenue Code of 1986, as amended.
(r) Normal Retirement Age: The date a Participant completes twenty (20) Years of
Service or attains the age of fifty (50), whichever occurs first.
(s) Participant: An Employee participating in the Plan in accordance with the
provisions of Section 3.1.
New Hire Restatement
7
(t) Participation: The period commencing as of the date the Employee became a
Participant and ending upon the termination of employment.
(u) Plan: The Poudre Fire Authority New Hire Money Purchase Pension Plan and
Trust, the Plan set forth herein, as amended from time to time.
(v) Service: A Participant's period of employment with the Employer determined in
accordance with Section 3.2.
(w) Trust (or Trust Fund): The Trust maintained in accordance with the terms of
this Trust Agreement, as from time to time amended, which constitutes a part of this Plan, and the
funds now or hereafter placed with the Trustees to be held, invested and paid out pursuant to the
provisions of this Plan and Trust Agreement.
(x) Valuation Date: The Valuation Date is the last day of each Year or such other
date or dates deemed necessary by the Trustees. The Valuation Date may include any day during the
Plan Year that the Trustees, any transfer agent appointed by the Trustees and any stock exchange used
by such agent are open for business.
(y) Year (Plan Year): The plan year consisting of the 12-month period commencing
on January 1 and ending on the following December 31.
3.2 Construction: The masculine gender, where appearing in this Plan and Trust, shall be
deemed to include the feminine gender, unless the context clearly indicates to the contrary.
ARTICLE IV. PARTICIPATION AND SERVICE
4.1 Participation: Each Employee becomes a Participant in the Plan on the later of his date
of hire or the date he attains age 18. Each Employee who was a Participant in the Prior Plans on the
day before the Effective Date of this restated Plan continues as a Participant in the Plan.
4.2 Participation Upon Re-Employment: If the Service of an Employee terminates and he
or she is re-employed as an Employee, such re-employed Employee will be eligible to become a
New Hire Restatement
8
Participant and shall begin participation in the Plan on the date he or she is re-employed by the
Employer as an Employee and is first compensated as a re-employed Employee.
4.3 Mandatory Participation in Plan: Except as provided in the following sentence, all
Employees who are eligible to participate in the Plan must participate in the Plan as a condition of their
employment as an Employee with the Employer, and no current Participant may elect to discontinue
his or her participation in the Plan. The provisions of this Section 3.3 may not be applicable to the fire
chief of the Employer, provided that the applicable provisions of the Colorado Revised Statutes are
complied with, and further provided that if said chief participates in another retirement plan sponsored
by the Employer, such participation in such other retirement plan does not detrimentally impact the
continued tax qualification of this Plan and Trust Agreement under the Internal Revenue Code.
ARTICLE V. CONTRIBUTIONS AND FORFEITURES
5.1 Employer Contributions: Not less than monthly, the Employer shall pay into the Trust
Fund an amount equal to eight percent (8%) of the Compensation of all Participants eligible to receive
a contribution for such month.
5.2 Contributions by Participants:
(a) Mandatory Contributions: Not less than monthly, each Participant will be
required to make a mandatory contribution of eight percent (8%) of their monthly Compensation.
The Employer shall pick up Mandatory Employee Contributions for all Compensation
paid after the Effective Date and the contributions so picked up shall be treated as Employer
contributions pursuant to Section 414(h)(2) of the Internal Revenue Code in determining tax treatment
under such Code. The Employer shall pay these Employee contributions directly to the Trust Fund in
lieu of paying such amounts to Employees, and such contributions shall be paid from the same funds
which are used in paying salaries to the Employees. Employee contributions so picked up shall be
New Hire Restatement
9
treated for all purposes of this Plan, other than federal tax, in the same manner as Employee
contributions which are not picked up by the Employer.
(b) Voluntary Contributions: In order to encourage savings and investments by
Participants, each Participant voluntarily may contribute to the Trust an amount not to exceed seven
percent (7%) of Compensation in addition to contributions under subparagraph (a) of this subsection.
All contributions shall be made by payroll deduction. The percentage, if any, which a Participant
contributes under this section may be changed by filing a written notice with the Plan Manager prior to
the effective date of such change. All voluntary contributions shall be paid to the Trustee by the
Employer at least monthly. No Participant shall have any obligation to make any voluntary
contribution.
5.3 Disposition of Forfeitures: The amount of a Participant's Accrued Benefit forfeited
under the Plan pursuant to Section 10.5 is a Participant forfeiture. Subject to any restoration allocation
required under Section 10.5, the Trustees will use, allocate and credit the forfeiture as an additional
Employer contribution for the Plan Year in which the forfeiture occurs. The Trustees will allocate the
participant forfeitures for a Plan Year to the Account of each Participant in the same ratio that each
Participant's Compensation for the Plan Year bears to the total Compensation of all Participants for the
Plan Year. A Participant will not share in the allocation of a forfeiture of any portion of his Accrued
Benefit.
5.4 Rollover Contributions: As permitted by law, an Employee who has an entitlement to a
distribution of his entire interest in a plan which meets the requirements of Section 401(a) of the
Internal Revenue Code or from an Individual Retirement Account may, in accordance with the
procedures of the Trustees, transfer the rollover amount to the Trustees. The plan-to-Plan rollover
must be executed on or before the 60th day after the day on which he is entitled to receive such
distribution, to the extent that the fair market value of the rollover amount exceeds the amounts
considered contributed by the Employee, reduced by any amounts previously distributed to him which
New Hire Restatement
10
were not includible in gross income. Such rollover amount shall be non-forfeitable, shall be held in a
separate account and shall receive income allocations. The acceptance of the rollover amounts and the
provisions established by the Trustees shall be governed by the provisions of the Internal Revenue
Code.
ARTICLE VI. ALLOCATIONS TO PARTICIPANTS' ACCOUNTS
6.1 Individual Accounts: The Trustees shall create and maintain adequate records to
disclose the interest in the Trust of each Participant, Former Participant and Beneficiary. Such records
shall be in the form of individual accounts, and credits and charges shall be made to such accounts in
the manner herein described. A Participant may have up to five (5) separate accounts: an Employer
Contribution Account, a Mandatory Employee Contribution Account, Employee Voluntary
Contribution Account, Employee Mandatory Post Tax Contribution Account, and an Employee
Rollover Account. The maintenance of individual accounts is only for accounting purposes, and a
segregation of the assets of the Trust Fund to each account shall not be required. Distribution and
withdrawals made from an account shall be charged to the accounts as of the date paid.
6.2 Account Adjustments: The accounts of Participants, Former Participants and
Beneficiaries shall be adjusted in accordance with the following:
(a) Income: On each business day of the Year, a daily determination of unrealized
and realized gains and losses, interest, dividends and capital gain distributions will be calculated and
allocated based on the actual activity in each Participant's account. Activity includes, but is not limited
to, allocation of contributions, forfeitures and distributions. Earnings or losses with respect to a
Participant's directed account shall be allocated in accordance with Section 7.2.
Participant's transfers from other qualified plans and voluntary contributions deposited
in the general Trust Fund shall share in any earnings and losses (net appreciation or net depreciation)
New Hire Restatement
11
of the Trust Fund in the same manner provided above. Each segregated account maintained on behalf
of a Participant shall be credited or charged with its separate earnings and losses.
(b) Employer Contributions: Employer contributions shall be allocated to the
Employer Contribution Account of each eligible Participant not less than monthly, according to the
amount that is actually contributed on behalf of each Participant in accordance with Section 4.1.
(c) Expenses: To the extent the Employer does not pay the administrative, legal,
investment and consulting fees of the Trust in accordance with Section 7.14, such expenses shall be
paid and shall be allocated to and deducted from the accounts of Participants. Expenses which are
incurred as a direct result of the investments held in the Trust, shall be deducted from the interest,
dividends and net income of the appropriate investment prior to allocating each month's Income to
Participants. General administrative, legal and consulting fees and expenses shall be deducted from
the accounts of all Participants in the proportion that each Participant's account balance bears to the
total account balances of all Participants in the Plan on the date such expenses are deducted.
6.3 Maximum Additions: Notwithstanding anything contained herein to the contrary, the
total Additions made to the Employer and Employee Contribution Accounts of a Participant for any
Year shall not exceed the "Maximum Permissible Amount," reduced by the sum of any Additions
allocated to the Participant's accounts for the same Year under any other defined contribution plan or
welfare benefit fund (as defined in Code Section 419(e)) maintained by the employer. The Maximum
Permissible Amount shall be equal to the lesser of $30,000 or 25% of the Participant's Compensation
for such Year, or such amount as provided in §415 of the Internal Revenue Code.
(a) The term "Additions" means the total of the Employer contributions and
forfeiture amounts allocated to a Participant's Employer Contribution Account, plus the amount of any
Employee Contributions to the Plan. Amounts allocated to an individual medical account (as defined
in Code Section 415(1)(2)) included as part of a defined benefit plan maintained by the Employer are
Additions. Furthermore, Additions include contributions paid or accrued attributable to post-
New Hire Restatement
12
retirement medical benefits allocated to the separate account of a key employee (as defined in Code
Section 419A(d)(3)) under a welfare benefit fund (as defined in Code Section 419(e)) maintained by
the Employer.
(b) "Addition" does not include "rollovers" from a qualified plan or Individual
Retirement Account as defined in the Internal Revenue Code.
(c) As of January 1 of each calendar year, and applicable for that Plan Year, the
dollar limit may be adjusted for increases in the cost of living in accordance with regulations
prescribed by the Secretary of the Treasury or his delegate. If such additions exceed the limitation, the
contributions made by the Participant for the Year, which cause the excess, shall be returned to the
Participant. If, after returning the Participant's contribution an excess still exists, such excess which is
attributable to Forfeitures shall be held in a suspense account. Such account may be maintained if
(1) no Employer contributions are made when their allocation could be precluded by Section 415 of the
Internal Revenue Code, (2) no income is allocated to the account, and (3) amounts in the account are
allocated as of each allocation date on which Forfeitures may be allocated until the account is
exhausted. Upon termination of the Plan, the balance of such account may revert to the Employer.
(d) For purposes of this section, the limitation year shall mean the Plan Year. The
term "Compensation" means, for purposes of Sections 5.3 and 5.4 only, a Participant's earned income,
wages, salaries, fees for professional services and other amounts received for personal services actually
rendered in the course of employment with the employer maintaining the Plan, including cash awards
and elective contributions. “Elective contributions” are amounts excludible from an Employee’s gross
income under Code Section 125, and amounts contributed by the Employer, at the Employee’s
election, to a Code Section 457 Plan arrangement or a cafeteria plan.
6.4 Multiple Plan Reduction: If an Employee is a Participant in one or more defined benefit
plans and one or more defined contribution plans maintained by the Employer, the sum of the defined
benefit plan fraction and the defined contribution plan fraction for any Plan Year prior to January 1,
New Hire Restatement
13
2000 may not exceed 1.0. The defined benefit plan fraction for any year is a fraction (a) the numerator
of which is the projected "annual benefit" of the Participant under the Plan (determined as of the close
of the Year), and (b) the denominator of which is the lesser of: (1) the product of 1.25 multiplied by the
maximum dollar limitation in effect under Section 415(b)(1)(A) of the Code for such year, or (2) the
product of 1.4 multiplied by the amount which may be taken into account under Section 415(b)(1)(B)
of the Code for such year. The defined contribution plan fraction for any year is a fraction (a) the
numerator of which is the sum of the "annual additions" to the Participant's Account as of the close of
the Year and (b) the denominator of which is the sum of the lesser of the following amounts
determined for such year and each prior Year of Service with the Employer: (1) the product of 1.25
multiplied by the dollar limitation in effect under Section 415(c)(1)(A) of the Code for such year
(determined without regard to Section 415(c)(6) of the Code), or (2) the product of 1.4 multiplied by
the amount which may be taken into account under Section 415(c)(1)(B) of the Code for such year.
At the election of the Trustees, in applying the provision of Section 5.4 with respect to
the defined contribution plan fraction for any Year ending after January 1, 1984, the amount taken into
account for the denominator for each Participant for all Years ending before December 31, 1983 shall
be an amount equal to the product of (a) the amount of the denominator determined under Section 5.4
(as in effect for the Year ending in 1982) for Years ending in 1982, multiplied by (b) the "transition
fraction."
For purposes of the preceding paragraph, the term "transition fraction" shall mean a
fraction (a) the numerator of which is the lesser of (1) $51,875 or (2) 1.4 multiplied by twenty-five
percent (25%) of the Participant's Compensation for the Year ending in 1981, and (b) the denominator
of which is the lesser of (1) $41,500 or (2) twenty-five percent (25%) of the Participant's
Compensation for the Year ending in 1981.
New Hire Restatement
14
6.5 Qualified Military Service. Notwithstanding any provision of this Plan to the contrary,
contributions, benefits and service credit with respect to qualified military service will be provided in
accordance with Section 414 (u) of the Internal Revenue Code.
6.6 Return of Contributions. An Employer Contribution which is made by reason of a
mistake of fact, or where the contribution was conditioned upon its deductibility, shall be returned to
the Employer in accordance with this section. The return to the Employer of the amount involved must
be made within one (1) year after:
(a) the Employer made the contribution by mistake of fact; or
(b) the disallowance of the contribution as a deduction, and then, only to the extent of
the disallowance.
ARTICLE VII. BENEFITS
7.1 Benefits: If a Participant's employment with the Employer is terminated, the Participant
shall be entitled to receive the entire vested amount then in the Participant's Aggregate Accounts in
accordance with Section 6.2. The Employer Contribution Account, Mandatory Employee Account,
Employee Voluntary Contribution Account, Employee Mandatory Post Tax Contribution Account, and
the Employee Rollover Account balance shall be one-hundred percent (100%) vested at all times.
Upon termination of employment, the Employer shall notify the Trustees in writing of
the name and address of the Participant who has terminated employment. The Trustees shall determine
the amount of the Participant's Aggregate Accounts as calculated above and shall, subject to the
election of the Participant as provided in Section 6.2, distribute such to the Participant as soon as
administratively practicable after the Participant's termination of employment.
7.2 Payment of Benefits:
(a) Within a reasonable time prior to or following termination of a Participant's
employment for any reason, the Trustees shall provide to the Participant a benefit application form,
New Hire Restatement
15
which shall describe in plain language the terms and conditions of the optional forms of benefits
described below and which shall be provided for the Participant to indicate his benefit commencement
date, his election of an optional form of benefit, and his Beneficiary or contingent annuitant. The
completed benefit application form should be returned to the Trustees prior to the Participant's benefit
commencement date. If the Participant files another benefit application form after the first form and
prior to his benefit commencement date, the earlier form shall be deemed annulled.
The Trustees shall follow a Participant's Beneficiary designation and may follow the
method of payment, if any, selected by the Participant in the case of a distribution on account of the
Participant's death.
Payment of a Participant's benefits must commence within a reasonable time after the
Participant's termination of employment. In any event, payment of a terminated Participant's benefits
shall, unless the Participant otherwise elects a later date in writing, begin not later than the 60th day
after the latest of the close of the Year in which (1) the Participant attains age 55, (2) the occurrence of
the 10th anniversary of the year in which the Participant commenced participation in the Plan, or
(3) the Participant terminates employment with the Employer. Notwithstanding any provision above to
the contrary, mandatory minimum distributions of a Participant's benefits shall commence either
during the taxable year in which he attains age 70-1/2, or the year in which he actually retires,
whichever is later. Alternatively, distributions to a Participant must begin no later than such taxable
year and must be made over the life of the Participant (or lives of the Participant and the Participant's
spouse) or over a period not exceeding the life expectancy of the Participant (or the life expectancies of
the Participant and the Participant's spouse). Distributions (as described above) may be made to a
Participant and a non-spouse Beneficiary provided as the measuring lives remain those of the
Participant and the Participant's spouse.
The methods of payment available to a Participant are as follows:
(1) In a lump sum,
New Hire Restatement
16
(2) By the purchase of a single-premium nontransferable annuity contract from a
legal reserve life insurance company, with a term and in the form as the Participant, with the approval
of the Trustees, shall determine,
(3) A joint and 50% survivor annuity, or
(4) Periodic payments over a period not exceeding the life expectancy of the
Participant (or the joint life expectancies of the Participant and the Participant's designated
beneficiary), with any amounts remaining in the Plan to receive income and expense allocations
pursuant to Section 5.2(a) and (c).
For distributions made on or after January 1, 1993 notwithstanding any provision of the
Plan to the contrary which would otherwise limit a Participant's election under this section, a
Participant may elect, at the time and in the manner prescribed by the Trustees, to have any portion of
an eligible rollover distribution, as defined in Internal Revenue Code Section 402(c)(4), paid directly to
an eligible retirement plan specified by the Participant in a direct rollover.
Notwithstanding the foregoing, a Participant may elect to defer receipt of the balance in
his Aggregate Account. Such Former Participant shall receive Income allocations pursuant to
Section 5.2(a) and shall have trust expenses deducted pursuant to Section 5.2(c) until the balance of the
Former Participant's Aggregate Account has been distributed. A Former Participant may make
application for distribution of his Aggregate Account in accordance with the procedures contained in
this section. In any event, a distribution option for a Former Participant's Aggregate Account shall be
elected no later than the close of the Year in which the Former Participant attains age 65.
Notwithstanding any provision herein to the contrary, if the present value of a Former
Participant's Accrued Benefit is less than $5,000, or whatever amount is provided under Internal
Revenue Code Section 411(a)(11)(A), the Plan may distribute the Accrued Benefit without the Former
Participant's consent.
New Hire Restatement
17
(b) After a Participant attains Normal Retirement Age, the participant, until he retires,
has a continuing election to receive all or any portion of his Accrued Benefit. A Participant shall make
an election under this paragraph (b) on a form prescribed by the Trustees at any time during the Plan
Year for which his election is to be effective. In his written election, the Participant shall specify the
percentage or dollar amount he wishes the Trustees to distribute to him. Furthermore, the Participant's
election shall relate solely to the percentage or dollar amount specified in his election form and his
right to elect to receive an amount, if any, for a particular Plan Year greater than the dollar amount or
percentage specified in his election form shall terminate on the Valuation Date. The Trustees shall
make a distribution to a Participant in accordance with his election under this paragraph (b) within the
90-day period (or as soon as administratively practicable) after the Participant files his written election
with the Trustees. The Trustees shall distribute the balance of the Participant's Accrued Benefit not
distributed pursuant to his election(s) in accordance with the other distribution provisions of this Plan.
7.3 Post-Death Distribution: Notwithstanding any provision herein to the contrary, where
distributions did commence before death, distributions must continue to be made at least as rapidly as
the deceased elected.
Where distributions did not commence before death, benefits shall be distributed within
the five year period following the date of death unless (i) a portion of benefits is payable to a
designated Beneficiary, and that portion will be distributed over the life of the Beneficiary, and
distributions commence no later than 1 year after the date of death; and/or (ii) a portion of the benefits
is to be paid to the surviving spouse and is distributed over the life of, or a period not exceeding the life
of, the spouse, and the distributions commence no later than the date on which the Employee would
have attained age 70-1/2.
7.4 Designation of Beneficiary: Each Participant from time to time may designate any
person or persons (who may be designated contingently or successively and who may be an entity
other than a natural person) as his Beneficiary or Beneficiaries to whom his Plan benefits are paid if he
New Hire Restatement
18
dies before receipt of all such benefits. Each Beneficiary designation shall be in the form prescribed
by the Trustees and will be effective only when filed with the Trustees during the Participant's lifetime.
Each Beneficiary designation filed with the Trustees will cancel all Beneficiary designations
previously filed with the Trustees.
If any Participant fails to designate a Beneficiary in the manner provided above, or if
the Beneficiary designated by a deceased Participant dies before him or before complete distribution of
the Participant's benefits, the Trustees, in their discretion, may distribute such Participant's benefits (or
the balance thereof) pursuant to Colorado law.
7.5 Distributions Under Domestic Relations Order. Nothing contained in this Plan prevents
the Trustees from complying with the provisions of a domestic relations order pursuant to C.R.S. § 14-
10-113. A distribution to an alternate payee shall be made as soon as administratively practicable after
the Trustees determines that an order submitted to the Plan complies with the terms of C.R.S. § 14-10-
113, and shall be in the form of a lump sum.
7.6 Direct Transfers and Rollovers. This section applies to distributions made on or after
January 1, 1993. Notwithstanding any provision of the Plan to the contrary that would otherwise limit
a distributee's distribution election under this Article, a distributee may elect, at the time and in the
manner prescribed by the Trustee, to have any portion of an eligible rollover distribution paid directly
to an eligible retirement plan specified by the distributee in a direct rollover.
An eligible rollover distribution is any distribution of all or any portion of the balance to
the credit of the Participant, 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 Code
Section 401(a)(9); and (iii) the portion of any distribution that is not includible in gross income
New Hire Restatement
19
(determined without regard to the exclusion for net unrealized appreciation with respect to employer
securities).
An eligible retirement plan is an individual retirement account described in Code
Section 408(a), an individual retirement annuity described in Code Section 408(b), an annuity plan
described in Code Section 403(a), or a qualified trust described in Code Section 401(a) that accepts the
distributee's eligible rollover distribution. However, in the case of an eligible rollover distribution to
the surviving spouse, an eligible retirement plan is an individual retirement account or individual
retirement annuity.
A distributee includes an Employee or former Employee. In addition, the Employee's
or former Employee's surviving spouse and the Employee's or former Employee's spouse or former
spouse who is the alternate payee under a qualified domestic relations order, as defined in Code
Section 414(p), are distributees with regard to the interest of the spouse or former spouse.
A direct rollover is a payment by the Plan to the eligible retirement plan specified by the
distributee.
The Trustees may establish procedures for the distribution of eligible rollover
distributions, including any limitations on the amount eligible for a rollover distribution, to the extent
permitted by law.
ARTICLE VIII. THE TRUST AND TRUST FUND
8.1 Contributions to Trust: All contributions under this Plan shall be paid to the Trustees
and deposited in the Trust Fund. All assets of the Trust Fund, including investment income, shall be
retained for the exclusive benefit of Participants, Former Participants, and Beneficiaries and shall be
used to pay benefits to such persons or to pay administrative expenses of the Plan and Trust Fund to
the extent not paid by the Employer and shall not revert to or inure to the benefit of the Employer.
New Hire Restatement
20
Notwithstanding anything herein to the contrary, upon the Employer's request, a
contribution which was made by a mistake of fact shall be returned by the Trustees to the Employer
within one year after the payment of the contribution.
8.2 Participant Direction of Investment: The investment of Trust funds hereunder is governed
by the provisions of C.R.S. §31-31-602(2). To the extent allowed by the Trustees, each Participant
shall exercise control of the investment of the Participant's individual Aggregate Account under the
Plan. The Trustees shall select at least three investment alternatives, each of which is diversified in
itself, that allow the Participant a broad range of investments and a meaningful choice between risk
and return in the investment of the Participant's individual Aggregate Account. The Trustees shall
allow each Participant to change investments at least once each calendar quarter. The Trustees shall
provide the Participant with information describing the investment alternatives, and the nature,
investment performance, fees, and expenses of the investment alternatives and other information to
assist a Participant in making informed investment decisions. The Trustees may establish written
procedures for Participant direction of investment under this Plan. The Trustees are not liable for any
loss, nor are they liable for any breach resulting from a Participant's control and/or direction of the
investment of any part of the Participant's individual Aggregate Account. Moreover, the Trustees may
decline to implement participant instructions which would result in a prohibited transaction or would
generate income which would be taxable to the Plan.
As of each Valuation Date, all Participant-directed accounts shall be charged or credited
with the net earnings, gains, losses and expenses as well as any appreciation or depreciation in the
market value using publicly-listed fair market values when available or appropriate.
(a) To the extent that the assets in a Participant's directed account are accounted for
as pooled assets or investments, the allocation of earnings, gains and losses of each Participant's
directed account shall be based upon the total amount of funds so invested, in a manner proportionate
to the participant's share of such pooled investment.
New Hire Restatement
21
(b) To the extent that the assets in the Participant's account are accounted for as
segregated assets, the allocation of earnings, gains and losses from such assets shall be made on a
separate and distinct basis.
8.3 Trustees' Powers and Duties: To the extent funds held by the Trust are not invested
pursuant to Participant direction as provided in Section 7.2 hereof, it shall be the duty of the Trustees
to hold the funds from time to time received by it from the Employer, to manage, invest and reinvest
the Trust Fund and the income therefrom pursuant to the provisions hereinafter set forth, without
distinction between principal and income. The Trustees shall be responsible only for such sums as
shall be actually received by it as Trustees. The Trustees shall have no duty to collect any sums from
the Employer or the Participants.
The Trustees shall have the power to invest and/or reinvest any and all money or
property of any description at any time held by it and constituting a part of the Trust Fund, without
previous application to, or subsequent ratification of, any court, tribunal or commission, or any federal
or state governmental agency, in accordance with the following powers:
(a) With regard to its investments, the Trustees may invest and reinvest any and all
money or property constituting the Trust Fund subject to the Uniform Prudent Investor Act,
Article 1.1, of Title 15, C.R.S., in investments, including, but not limited to, obligations of the United
States government and in obligations fully guaranteed as to principal and interest by the United States
government, in state and municipal bonds, in corporate notes, bonds or debentures, convertible or
otherwise, in railroad equipment trust certificates, in real property and in loans secured by first
mortgages or deeds of trust on real property, in participation guarantee agreements with life insurance
companies, in real estate limited partnerships, or limited liability companies, and in other types of
investment agreements, and the foregoing investments may be made without limitation as to the
percentage of the book value of the assets of the retirement fund so invested. Investments may also be
made in either common or preferred corporate stocks.
New Hire Restatement
22
(b) The Trustees, in the matter of the investment of the Trust Fund, shall be held
harmless in every respect in exercising its discretion as to how much of the Trust Fund shall remain
uninvested and in cash temporarily awaiting investment or for the expected cash distributions out of
the Trust Fund in accordance with the provisions of this Plan.
(c) The Trustees may cause any part of the money or other property of the Trust to
be commingled with the money or property of trusts created by others causing such assets to be
invested as part of a pooled pension and profit sharing fund. In addition, any portion of the Trust
assets may be invested in any other collective investment fund approved by the Trustees as an
investment option, the terms of such collective investment trust shall be incorporated as part of this
Plan and Trust upon approval of the Trustees.
(d) The Trustees from time to time shall determine the immediate and long-term
financial requirements of the Plan and on the basis of such determination, establish a policy and
method of funding which will enable the Trustees or the investment manager or managers, if any, to
coordinate the investment policies of the Plan's funds with the objectives and financial needs of the
Plan.
(e) The Trustees may delegate its investment responsibilities to an Investment
Manager pursuant to Section 7.5 or permit Participants to direct the investment of their Aggregate
Accounts pursuant to Section 7.2.
8.4 Further Powers of the Trustees: The Trustees shall have all powers necessary or
advisable to carry out the provisions of this Plan and Trust Agreement and all inherent, implied and
statutory powers now or hereafter provided by law, including specifically the power to do any of the
following:
(a) To cause any securities or other property to be registered and held in its name as
Trustees, or in the name of one or more of its nominees, without disclosing the fiduciary capacity, or to
keep the same in unregistered form payable to bearer.
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(b) To sell, grant options to sell, exchange, pledge, encumber, mortgage, deed in
trust, or use any other form of hypothecation, or otherwise dispose of the whole or any part of the Trust
Fund on such terms and for such property or cash, or part cash and credit, as it may deem best and it
may retain, hold, maintain or continue any securities or investments which it may hold as part of the
Trust Fund for such length of time as it may deem advisable, and generally, in all respects, the Trustees
may do all things and exercise each and every right, power and privilege in connection with and in
relation to the Trust Fund as could be done, exercised or executed by an individual holding and owning
said property in absolute and unconditional ownership.
(c) To abandon, compromise, contest and arbitrate claims and demands; to institute,
compromise and defend actions at law (but without obligation to do so); as the Trustees shall deem
advisable; all at the risk and expense of the Trust Fund.
(d) To borrow money for this Trust upon such terms and conditions as the Trustees
shall deem advisable, and to secure the repayment thereof by the mortgage or pledge of any assets of
the Trust Fund.
(e) To vote in person or by proxy any shares of stock or rights held in the Trust
Fund; to participate in reorganization, liquidation or dissolution of any corporation, the securities of
which are held in the Trust Fund and to exchange securities or other property in connection therewith.
(f) To pay any amount due on any loan or advance made to the Trust Fund, all taxes
of any nature levied, assessed or imposed upon the Trust Fund, and all reasonable expenses and
attorney fees necessarily incurred by the Trustees with respect to any of the foregoing matters.
(g) To defend any suit or legal proceedings against the Trust and the Trustees may
sue or bring legal proceedings against any party or parties, compromise, submit to arbitration, or settle
any suit or legal proceeding, claim, debt, damage or undertaking due or owing from or to the Trust
Fund. In the administration of the Fund, the Trustees shall not be obligated to take any action which
would subject them to any expense or liability unless they be first indemnified in an amount and in the
New Hire Restatement
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manner satisfactory to the Trustees or to be furnished with funds sufficient, in the sole judgment of the
Trustees, to cover such expenses.
8.5 Investment Manager: To the extent funds held by the Trust are not invested pursuant to
Participant direction as provided in Section 7.2 hereof, the Trustees may appoint one or more
Investment Managers to exercise the power of the Trustees to direct the investment and reinvestment
of the Trust Fund, pursuant to the provisions of Section 7.3 of this Plan and Trust. Such appointment
shall be made in writing and accepted by the Investment Manager, a copy of which shall be delivered
to the Trustees and may be revoked by the Trustees by written notice delivered to the Investment
Manager. The Investment Manager shall receive such compensation and reimbursement for expenses
as shall be agreed upon from time to time by the Trustees and the Investment Manager which shall be
paid, in whole or in part by the Employer, and any amount thereof not paid by the Employer shall be
paid by the Trustees out of the principal or income of the Trust. The Investment Manager shall
discharge his duties relating to the investment and reinvestment of the Trust Fund in conformity with
Article VII of this Plan and shall be subject to the liabilities therein stated insofar as his duties are
concerned. The Trustees shall not be liable with respect to acts or omissions of the Investment
Manager, or be under an obligation to invest or otherwise manage any assets of the Plan or Trust Fund
which are subject to the management of the Investment Manager, except insofar as they shall be liable
for the breach of co-fiduciaries pursuant to Article IX hereof.
8.6 Claims Procedure: The Trustees shall make all determinations as to the right of any
person to a benefit. Any denial by the Trustees of the claim for benefits under the Plan by a Participant
or Beneficiary shall be stated in writing by the Trustees and delivered or mailed to the Participant or
Beneficiary; and such notice shall set forth the specific reasons for the denial, reference pertinent Plan
provisions, describe any additional information needed and the steps to be taken to submit the claim
for review, all written to the best of the Trustees' ability in a manner that may be understood without
legal or actuarial counsel. Should a Participant or Beneficiary receive no response to his claim for
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benefits within 90 days of making the claim, it shall be deemed to be denied and the Participant or
Beneficiary may proceed to have the claim reviewed. The claimant may, within 60 days after
receiving such denial notice, request a repeal of the denial in writing, submit issues and comments, and
may review pertinent documents. The Trustees shall reach a decision as to the claimant's appeal not
later than 60 days after receiving the request for review.
8.7 Records and Reports: The Trustees shall exercise such authority and responsibility as it
deems appropriate relating to records of Participant's Service, account balances and the percentage of
such account balances which are non-forfeitable under the Plan; and notifications to Participants.
8.8 Other Administrative Powers and Duties: The Trustees shall also have such duties and
powers as may be necessary to discharge its duties hereunder, including, but not by way of limitation,
the following:
(a) To construe and interpret the Plan, decide all questions of eligibility and
determine the amount, manner and time of payment of any benefits hereunder;
(b) To prescribe procedures to be followed by Participants or Beneficiaries filing
applications for benefits;
(c) To prepare and distribute, in such manner as it determines to be appropriate,
information explaining the Plan;
(d) To receive from the Employer and from Participants such information as shall
be necessary for the proper administration of the Plan;
(e) To furnish the Employer, upon request, such annual reports with respect to the
administration of the Plan as are reasonable and appropriate;
(f) To receive, review and keep on file (as they deem convenient or proper) reports
of the financial condition, and of the receipts and disbursements, of the Trust Fund;
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(g) To appoint or employ individuals to assist in the administration of the Plan and
any other agents they deem advisable, including legal, investment, custodial, third-party administrators
and actuarial counsel.
The Trustees shall have no power to add to, subtract from or modify any of the terms of
the Plan, or to change or add to any benefits provided by the Plan, or to waive or fail to apply any
requirements of eligibility for a benefit under the Plan. No member of the Trustees shall act upon his
own application for a benefit under the Plan.
8.9 Rules and Decisions: The Trustees may adopt such rules as it deems necessary,
desirable, or appropriate. All rules and decisions of the Trustees shall be uniformly and consistently
applied to all Participants in similar circumstances. When making a determination or calculation, the
Trustees shall be entitled to rely upon information furnished by a Participant or Beneficiary, the
Employer or the legal counsel of the Employer.
8.10 Benefit Payments: The Trustees shall pay all benefits from the Trust Fund pursuant to
the provisions of the Plan.
8.11 Application and Forms for Benefits: The Trustees may require a Participant to
complete and file with the Trustees an application for a benefit and all other forms approved by the
Trustees and to furnish all pertinent information requested by the Employer. The Trustees may rely
upon all such information so furnished it, including the Participant's current mailing address.
8.12 Indemnification: To the extent allowed by law, the Employer shall indemnify and hold
harmless the Trustees from any and all claims, losses, damages, expenses (including counsel fees
approved by the Trustees), and liabilities (including any amounts paid in settlement with the Trustees'
approval) arising from any act or omission of the Trustees, except when the same is judicially
determined to be due to the gross negligence or willful misconduct of such Trustees.
8.13 Loans to Participants:
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(a) General Rules: The Trustees, in accordance with a uniform and nondiscriminatory
policy, may make a loan to any Participant who remains actively employed with the Employer and
who makes a written request for such a loan. The Trustees will promulgate rules and procedures
regarding Participant loans. No loan to a Participant may exceed the Participant's vested Accrued
Benefit. In addition, a loan, when added to the outstanding balance of all other loans to the Participant
from this and any other qualified Plan maintained by the Employer, may not exceed the lesser of:
(1) $50,000 less the excess of the highest outstanding balance of loans from the Plan during the one-
year period ending on the day before such loan is made over the outstanding balance of loans from the
Plan on the day such loan is made; or (2) the greater of one-half of the value of the Participant's vested
Accrued Benefit as of the last preceding valuation date or $10,000.
(b) Security and Interest: All loans will be adequately secured and will bear a rate of
interest considered reasonable on the date the loan was made. Participant loans will be considered a
Participant-directed investment under Section 7.2 of the Participant requesting the loan and interest
paid on the loan will be allocated to the account of the Participant-borrower.
(c) Term of Loan: Any loan must be repaid in level payments of principal and interest
at least quarterly within five years of the date on which it was made or on the occurrence of any event
that renders the Participant's Account distributable, whichever occurs first. However, any loan verified
by the Trustees as used to acquire any dwelling unit used or to be used within a reasonable time as the
principal residence of the Participant must be repaid within the time prescribed by the Trustees, or
upon distribution of the Participant's Account, whichever occurs first. If a Participant does not repay a
loan within the time prescribed, in addition to enforcing payment through any legal remedy, the
Trustees may deduct the total amount of the loan and any unpaid interest due on it from the
Participant's Account when the Account becomes distributable under the Plan.
8.14 Payment of Expenses and Fees: The expenses of administration of the Trust incurred
by the Trustees, including legal counsel and consulting fees and other charges, shall be paid by the
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Employer and if not paid by the Employer, then from the Trust Fund. The Trustees shall receive in
addition to all their expenses, such compensation that may be agreed upon from time to time by the
Employer and the Trustees. However, if any Trustee is already receiving compensation from the
Employer, as a full-time Employee they shall not also receive compensation as a member of the
Trustees. If and to the extent that the Employer does not pay such compensation or expense, it shall be
paid from the Trust Fund.
8.15 Protection of the Trustees: The Trustees shall not incur any liability by reason of taking
any action indicated by this instrument to be within the scope of the authority of an Investment
Manager appointed by the Trustees in accordance with any written instrument purporting to be signed
by such person or persons authorized to sign for the Investment Manager, or in reliance upon a
certified copy of a resolution of the Trustees, any of which the Trustees, in good faith, believe to be
genuine. The Trustees may consult with counsel, who may be counsel for the Employer, in respect to
any of its duties or obligations hereunder and shall be fully protected in acting or refraining from
acting in accordance with the advice of such counsel.
The Trustees shall incur no liability for any loss to or depreciation in value of the Trust
Fund or for any act done or omitted to be done in the administration of the Trust, except for breach of
its fiduciary duty as set forth in this instrument. The Trustees shall be indemnified and saved harmless
by the Employer from and against any and all liability arising from breach of its fiduciary duty, as
provided in Section 7.12, including all expenses reasonably incurred in its defense, in case the
Employer fails to provide such defense.
8.16 Accounts of the Trustees: The Trustees shall maintain accurate records and accounts of
all transactions hereunder, which shall be available at all reasonable times for inspection or audit by
any person or persons designated by the Employer. The Trustees at the direction of the Employer shall
submit to the auditors for the Employer such valuations, reports or other information as they may
reasonably require. As of December 31st of each fiscal Year (i.e., the Valuation Date) the Trustees
New Hire Restatement
29
shall value the Trust Fund at its fair market value. The Trustees shall furnish a copy of such valuation
to the Employer as soon as possible. Any valuation by the Trustees shall be conclusive and binding on
any persons having an interest hereunder.
ARTICLE IX. TRUSTEES
9.1 Trustees: The Trustees shall be made up of four (4) members composed initially as
follows: two (2) members appointed by the Employer and two (2) members who are Employees that
are duly elected by the Participants to be Trustees of the Plan. The Trustees shall serve initial terms of
office as follows: two (2) Employer members and one (1) Employee member shall each serve a term
of three (3) years and one (1) Employee member shall serve a term of two (2) years.. Successors shall
each serve a term of three (3) years and shall become Trustees in the following manner: the Employer
shall appoint successors to its member positions and successor Employee members shall be elected by
a plurality vote of active Participants. The Trustees shall make all decisions in a non-discriminatory
manner.
An Employee member of the Trustees may resign at any time upon giving written
notice thereof by registered or certified mail, hand delivery, or by telegram or telefax to the Employer.
Upon termination of employment of an Employee representative member of the Trustees, such person's
membership on the Trustees shall terminate and a successor shall be appointed in accordance with this
Section 8.1 to fill the remaining unexpired term of such Trustee. Such resignation shall become
effective forthwith upon the receipt of such written notice by the Employer. Each successor Trustee
appointed as provided in Section 8.1 shall upon succeeding as a Trustee be vested with all of the rights,
powers and discretions herein vested in and imposed upon the Trustees. Upon the removal, resignation
or expiration of the term of any Trustee, he shall cause to be delivered to the Trustees any Trust
property or records then in his possession. No successor Trustee shall have any duty to examine the
accounts or doings of his predecessors. Any successor Trustee shall be responsible only for the money
New Hire Restatement
30
and property known to him to comprise the principal and income of the Fund and shall in no way be
liable or responsible for anything done or omitted to have been done by his predecessors.
9.2 Use of Corporate Trustee: At any time and from time to time the Trustees may appoint,
as Corporate Trustee, a bank or trust company located in the United States which has capital and
surplus aggregating not less than $50,000,000.00, as shown by its last published statement. The
Trustees may delegate to the Corporate Trustee (i) the power to hold all or any part of the Trust Fund
as sole trustee of a trust separate from the Trust created by this Agreement (and not as agent of the
Trustees or as Co-Trustee hereunder with the Trustees), (ii) the power to invest and reinvest the Trust
Fund in the Corporate Trustee's sole discretion, and (iii) such other duties and powers as the Trustees
may deem advisable. The Trustees may enter into and execute a trust agreement with the Corporate
Trustee, which agreement shall contain such provisions as the Trustees may deem advisable. The
Corporate Trustee shall have no obligations under this Agreement or under the Plan and its powers and
duties shall be limited to those set forth in the agreement between it and the Trustees. Upon execution
of an agreement with the Corporate Trustee, the Trustees may transfer and convey to the Corporate
Trustee any part or all of the assets of the Trust Fund acceptable to the Corporate Trustee, and
thereupon, the Trustees shall be forever released and discharged from any responsibility or liability
with respect to the assets so transferred as to any period subsequent to such transfer and with respect to
the investment and reinvestment thereof by the Corporate Trustee during the time the Trust Fund is in
the hands of the Corporate Trustee. Notwithstanding such transfer, the Trustees shall continue to carry
out its administrative functions under the Plan in accordance with the provisions of the Plan and Trust
Agreement.
Any Corporate Trustee appointed as provided in this section may be removed at any
time, with or without cause, by majority vote of the Trustees and upon written notice thereof being
furnished to such Corporate Trustee as provided by the terms of the Corporate Trustee Agreement
previously entered into by the Trustees with such Corporate Trustee. If and when so removed, such
New Hire Restatement
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Corporate Trustee shall cause to be transferred to the Trustees any and all Trust property, assets and
records then in its possession.
9.3 Officers: The officers of the Board of Trustees shall be selected annually at the first
regularly-called meeting in each fiscal year by the Trustees from among themselves and shall serve
until their successors have been selected and qualified. The officers shall include a Chairman and
Secretary.
9.4 Officer Responsibilities: The Chairman shall be responsible for the conduct of the
meeting. The Secretary shall keep minutes or records of all meetings, proceedings and acts of the
Trustees and shall make these available to all Trustees. The Chairman and the Secretary shall jointly
execute written documents and instruments authorized by the Trustees.
9.5 Annual Meeting: An annual meeting of the Trustees shall be held for the purpose of
selecting officers for the ensuing year. The date and place of the annual and regular meetings shall be
fixed by Resolution of the Trustees. Special meetings may be called by the Chairman or Secretary or
any three (3) other Trustees by giving to each Trustee at least ten (10) days' written notice of time and
place of such meeting; or may be held without notice if all Trustees consent in writing, or if the
Trustees in attendance constitute a quorum and they agree to waive notice by their attendance.
Whenever any notice is required to be given to any Trustee hereunder, a waiver thereof
in writing, signed at any time, whether before or after the time of meeting, by the Trustees entitled to
such notice, shall be deemed equivalent to the giving of such notice. The attendance of a Trustee at a
meeting shall constitute a waiver of notice of such a meeting, except where a Trustee attends a meeting
and objects prior to the first order of business to the transaction of any business upon the ground that
the meeting was not lawfully called or convened.
9.6 Quorum: Three (3) Trustees, at least one representing the Employer and one
representing the Employees, present in person shall constitute a quorum for the transaction of business
at any meeting.
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9.7 Majority Vote: All decisions of the Trustees shall be made by majority vote of the
Trustees present at the meeting at which such vote is taken.
ARTICLE X. FIDUCIARIES
10.1 Fiduciaries: The Fiduciaries shall have only those specific powers, duties,
responsibilities and obligations as are specifically given them under this Plan or the Trust. In general,
the Employer shall have the responsibility for making the contributions provided for under Section 4.1.
The Trustees shall have the sole responsibility for the administration of this Plan, which responsibility
is specifically described in this Plan and Trust. The Trustees shall have the sole responsibility for the
administration of the Trust and the management of the assets held under the Trust. Each Fiduciary
warrants that any directions given, information furnished, or action taken by it shall be in accordance
with the provisions of the Plan and Trust authorizing or providing for such direction, information or
action. Furthermore, each Fiduciary may rely upon any such direction, information or action of another
Fiduciary as being proper under this Plan and Trust, and is not required under this Plan and Trust to
inquire into the propriety of any such direction, information or action. It is intended under this Plan
and Trust that each Fiduciary shall be responsible for the proper exercise of its own powers, duties,
responsibilities and obligations under this Plan and Trust and shall not be responsible for any act or
failure to act of another Fiduciary. No Fiduciary guarantees the Trust Fund in any manner against
investment loss or depreciation in asset value.
The following will cause a person to be classified as a "Fiduciary" for purposes of this
Plan and Trust: (1) Exercise of any discretionary authority or discretionary control respecting the
management or disposition of Plan or Trust assets, (2) rendering any investment advice for a fee or
other compensation, or (3) exercise of any discretionary authority or responsibility for Plan or Trust
administration.
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10.2 General Fiduciary Duties: All Fiduciaries must discharge their duties solely in the
interest of the Employees eligible to participate and Beneficiaries of the Plan. In addition, Fiduciaries
must act exclusively for the purpose of providing benefits to Employees eligible to participate and
Beneficiaries and defraying reasonable expenses of the Plan. They must carry out their duties with the
care, skill, prudence and diligence which a prudent man acting in a like capacity would use under
conditions prevailing at the time. To the extent funds held by the Trust are not invested pursuant to
Participant direction as provided in Section 7.2 hereof, investments of the Plan shall be diversified so
that the risk of loss will be minimized unless this clearly is not prudent under the circumstances.
However, investment in pooled funds will not violate the diversification rule if the Fund itself is
sufficiently diversified.
10.3 Bonding and Insurance: The Trustees, any Investment Manager appointed pursuant to
Section 7.5, and anyone acting as a Fiduciary as described in this Article IX, may be bonded. The
Employer shall obtain Errors and Omissions Insurance in a minimum amount of $1,000,000 or such
higher amount that they deem advisable to protect the Trust Fund. However, if the Employer does not
provide the appropriate amount of insurance, the Trustees may obtain Errors and Omissions Insurance
for such amount as they deem advisable to protect the Trust Fund. Such insurance and bond premiums
and fees may be paid as an expense of the Trust pursuant to Section 7.14.
10.4 Delegation of Authority: The Trustees shall have the power to delegate specific
fiduciary responsibilities with respect to the control and management of the assets of the Trust and
with respect to the administration of the Plan and Trust by a written agreement between the Trustees
and any such designated person or entity.
ARTICLE XI. MISCELLANEOUS
11.1 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 any Employee to be
New Hire Restatement
34
continued in the employment of the Employer, or as a limitation of the right of the Employer to
discharge any of its Employees.
11.2 Rights to Trust Assets: No Employee or Beneficiary shall have any right to, or interest
in, any assets of the Trust Fund upon termination of his 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 out of the assets of the Trust Fund. All payments of benefits as provided for in this
Plan shall be made solely out of the assets of the Trust Fund and none of the Fiduciaries shall be liable
therefor in any manner.
11.3 Nonalienation of Benefits: Except for assignments for child support purposes as
provided for in sections 14-10-118(1) and 14-14-107, C.R.S., as they existed prior to July 1, 1996, for
income assignments for child support purposes pursuant to section 14-14-111.5, C.R.S., for writs of
garnishment that are the result of a judgment taken for arrearages for child support or for child support
debt, and for payments made in compliance with a properly executed court order approving a written
agreement entered into pursuant to section 14-10-113(6), C.R.S., 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 Fund 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. The Trust Fund shall be held and distributed for the purpose of this article and for
no other purpose whatsoever.
11.4 Payments to Minors or Persons of Unsound Mind: If any person entitled to receive any
payment hereunder is a minor, or a person of unsound mind, whether formally adjudicated so or not,
such payment shall be made to or for the benefit of such minor or person of unsound mind in any of
New Hire Restatement
35
the following ways, as the Trustees, in its sole discretion, shall determine: (a) to the legal
representative of such person; (b) directly to such person; (c) to some near relative of such person;
(d) in such other manner as the Trustees may deem appropriate under the circumstances. The Trustees
shall not be required to see to the proper application of any such payment made to any person pursuant
to the provisions of this Section.
11.5 Disposition of Unclaimed Payments: If the Trustees are unable to make any payment
due under the Plan to any person because they cannot ascertain the identity or whereabouts of such
person after making such written or telephonic inquiries as the Trustees, in their sole discretion, deem
reasonable, the Trustees shall suspend all further payments to such person until he makes his identity
or whereabouts known to the Trustees within seven (7) years after such payment was due. The
Trustees shall declare such payment, and all remaining payments due such person, to be forfeited as of
the expiration of such seven-year period.
11.6 Severability of Provisions: If any provision of this Plan is held to be invalid or
unenforceable, such invalidity or unenforceability shall not affect any other provisions, and this Plan
shall be construed and enforced as if such provision had not been included.
11.7 Trust and Plan to be Tax Exempt: The Trust and the Plan are intended to qualify under
Internal Revenue Code Section 401(a) and to be tax exempt under Section 501(a), respectively, and is
a "Governmental Plan" within the meaning of Section 414(d) of the Internal Revenue Code of 1986, as
amended from time to time and Section 3(32) of the Employee Retirement Income Security Act of
1974. The Plan and Trust have been established with the expectation that the Trust will be irrevocable
and in the belief that the Plan and Trust will be approved by the Internal Revenue Service, as meeting
the requirements of the Internal Revenue Code of 1986 and the Regulations issued thereunder with
respect to qualified employee benefit plans.
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ARTICLE XII. AMENDMENT OR TERMINATION OF THE PLAN
12.1 Right and Restrictions: The Employer reserves the right, with the approval of at least
sixty-five percent (65%) of the total votes cast by actively-employed eligible Employees and all former
employees who are entitled to a benefit from the Plan, to amend (retroactively or otherwise) or
terminate the Plan, in whole or in part, or to discontinue contributions thereunder, provided that no
amendment shall have the effect of (1) diverting for the benefit of any persons, other than Participants
or their Beneficiaries, amounts attributable to contributions by the Employer, or (2) decreasing the
nonforfeitable percentage or amount in any Participant's Aggregate Account. Notwithstanding the
foregoing, the Employer shall have the right to amend the Plan without the approval of Participants,
solely for the purpose of incorporating minor, technical amendments which are required, from time to
time, by changes in state or federal laws or regulations. On the complete or partial termination of the
Plan or complete discontinuance by the Employer of contributions under the Plan, the Accrued Benefit
of each of the affected Participant's Aggregate Accounts shall be nonforfeitable and shall be distributed
pursuant to Section 6.2.
12.2 Merger or Consolidation of the Plan: In the event of any merger or consolidation of the
Plan with, or transfer of assets or liabilities of the Plan to, any other plan, each Participant shall be
entitled to receive a benefit immediately after such merger, consolidation or transfer (determined as if
such other plan had then terminated) which is equal to or greater than the benefit he would have been
entitled to receive immediately before such merger, consolidation or transfer (if the Plan had then
terminated).
ARTICLE XIII. GOVERNING LAW
The Trust contained herein shall be deemed executed and governed under the laws of the State
of Colorado. Should any provision of the laws of the State of Colorado be in conflict with the express
powers, duties and responsibilities of the Trustees as set forth in this instrument, in such event the law
New Hire Restatement
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shall control. For the convenience of the parties hereto, this Plan and Trust Agreement may be
executed in multiple identical counterparts, each of which is complete in itself and may be introduced
in evidence or used for any other purpose without the production of any other counterpart.
This Plan document is the Restated Poudre Fire Authority New Hire Money Purchase Pension
Plan and Trust Agreement effective December 24, 2001.
ATTEST: EMPLOYER
POUDRE FIRE AUTHORITY
By:
Its: Its:
TRUSTEES
_____________________ _____________________
_________________ _________________
_____________________ _____________________
_________________ _________________
_____________________ _____________________
__________________ __________________
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VI.
Old Hire 1st Amendment
Resolution 02- ______
Adopting the First Amendment to the
Poudre Fire Authority Old Hire Money Purchase Pension Plan
And Trust Agreement as Amended and Restated, Effective December 24, 2001
WHEREAS, the Poudre Fire Authority (the "Employer"), established the Poudre Fire Authority
Old Hire-City Money Purchase Pension Plan and Trust Agreement ("Old Hire-City Plan"), effective
January 1, 1983; and
WHEREAS, the Old Hire-City Plan merged with the Poudre Fire Authority Fire Protection
District Plan to form the Poudre Fire Authority Old Hire Money Purchase Pension Plan and Trust
Agreement as amended and restated Plan (the "Plan"), effective December 24, 2001; and
WHEREAS, pursuant to ' 11.1 of the Plan, the Employer has the authority to amend the Plan
without a vote of the actively-employed eligible employees providing the amendments are minor,
technical amendments required from time to time by changes in state or federal laws or regulations;
and
WHEREAS, the Employer deems it advisable to amend the Plan to comply with the Economic
Growth and Tax Relief Reconciliation Act of 2001 (EGTRRA) and with technical tax requirements
requested by the Internal Revenue Service in conjunction with the request for a determination letter;
and
WHEREAS, the Board of Trustees of the Poudre Fire Authority Old Hire Money Purchase
Pension Plan and Trust Agreement have recommended the adoption of the Plan amendments set forth
herein.
NOW, THEREFORE, be it resolved by the Board of Directors of the Poudre Fire Authority
that the Plan is hereby amended, effective January 1, 2002 as follows:
1. ARTICLE II. DEFINITIONS AND CONSTRUCTION, ' 2.1 Definitions (e) Compensation
shall be revised to read as follows:
(e) Compensation: A Participant's base salary received from the Employer
for personal services during the Year, but excluding holiday pay, acting officer pay,
longevity pay, bonus payments, payments for unused vacation, overtime, uniform
cleaning and travel allowances, and excluding any benefits paid under this Plan or any
other retirement or life insurance program or under any other health or welfare plan.
For purposes of allocating the Employer's contribution for the Year in which a
Participant begins or resumes Participation, Compensation shall be determined as of the
first day of the year in which the Employee became a Participant and Compensation
before his Participation began or resumed shall be disregarded. Contributions shall be
made on a Participant's base salary as defined herein, before taking into account
amounts contributed by the Employer pursuant to a salary reduction agreement which
were excludable from the Employee's gross income under Code Section 125, Code
Section 132(f)(4), Code Section 402(a)(8), Code Section 403(b) or Code Section 402(h)
or 457. Effective January 1, 2002, Compensation in excess of $ 200,000, as adjusted for
cost-of-living increases in accordance with section 401(a)(17)(B) of the Code, shall not
be taken into account under the Plan.
2. ARTICLE II. DEFINITIONS AND CONSTRUCTION, ' 2.1 Definitions new section (r)
Leased Employee shall be added, with the subsequent sections to be re-lettered, to read as follows:
(r) Leased Employee: Any person who is not an employee of the recipient
and pursuant to an agreement between the Employer and any other person, has
performed services for the Employer on a substantially full time basis for a period of at
least one year, and such services are performed under the primary direction and control
of the Employer. Contributions or benefits provided a leased employee by the leasing
organization which are attributable to services performed for the Employer shall be
treated as provided by the Employer. A Leased Employee or Employee shall not be
considered an employee of the Employer if: (i) such Employee is covered by a money
purchase pension plan providing (1) a non-integrated Employer contribution rate of at
least 10% of Compensation, as defined in Code Section 415(c)(3), but including
amounts contributed by the Employer pursuant to a salary reduction agreement which
were excludable from the Employee's gross income under Code Section 125, Code
Section 132(f)(4), Code Section 402(a)(8), Code Section 403(b) or Code Section
402(h), (2) immediate participation, and (3) full and immediate vesting; and (ii) leased
employees do not constitute more than 20% of the Employer's non-highly compensated
work force.
3. ARTICLE IV. CONTRIBUTIONS AND FORFEITURES, ' 4.2 Contributions by
Participants, (b) Voluntary Contributions is hereby amended by the replacement of the first sentence to
read as follows:
(b) Voluntary Contributions: In order to encourage savings and investments
by Participants, effective January 1, 2002, each Participant voluntarily may contribute
to the Trust an amount not to exceed seventy-two percent (72%) of Compensation in
addition to contributions under subparagraph (a) of this subsection, and subject to the '
5.3 maximum additions limit.
4. ARTICLE V. ALLOCATIONS TO PARTICIPANTS' ACCOUNTS, ' 5.3 Maximum
Additions, shall be revised to read as follows:
5.3 Maximum Additions: Notwithstanding anything contained herein to the
contrary, the total Additions made to the Employer and Employee Contribution
Accounts of a Participant for any Year shall not exceed the "Maximum Permissible
Amount," reduced by the sum of any Additions allocated to the Participant's accounts
for the same Year under any other defined contribution plan or welfare benefit fund (as
defined in Code Section 419(e)) maintained by the employer. The Maximum
Permissible Amount shall be equal to the lesser of $ 40,000 or 100% of the Participant's
Compensation for such Year, or such amount as provided in '415 of the Code.
(a) The term "Additions" means the total of the Employer
contributions and forfeiture amounts allocated to a Participant's Employer Contribution
Account, plus the amount of any Employee Contributions to the Plan. Amounts
allocated to an individual medical account (as defined in Code Section 415(l)(2))
included as part of a defined benefit plan maintained by the Employer are Additions.
Furthermore, Additions include contributions paid or accrued attributable to post-
retirement medical benefits allocated to the separate account of a key employee (as
defined in Code Section 419A(d)(3)) under a welfare benefit fund (as defined in Code
Section 419(e)) maintained by the Employer.
(b) "Addition" does not include "rollovers" from an eligible
retirement plan as defined for the purpose of the direct rollover provisions of '6.6.
(c) As of January 1 of each calendar year, and applicable for that
Plan Year, the dollar limit may be adjusted for increases in the cost of living in
accordance with regulations prescribed by the Secretary of the Treasury or his delegate.
If such additions exceed the limitation, the contributions made by the Participant for the
Year, which cause the excess, shall be returned to the Participant. If, after returning the
Participant's contribution an excess still exists, such excess which is attributable to
Forfeitures shall be held in a suspense account. Such account may be maintained if
(1) no Employer contributions are made when their allocation could be precluded by
Code Section 415, (2) no income is allocated to the account, and (3) amounts in the
account are allocated as of each allocation date on which Forfeitures may be allocated
until the account is exhausted. Upon termination of the Plan, the balance of such
account may revert to the Employer.
(d) For purposes of this section, the limitation year shall mean the
Plan Year. The term "Compensation" means, for purposes of Sections 5.3 and 5.4 only,
a Participant's earned income, wages, salaries, fees for professional services and other
amounts received for personal services actually rendered in the course of employment
with the employer maintaining the Plan, including cash awards and Elective
Contributions, provided, however, that for Plan Years beginning before January 1,
1998, such amounts shall not be included in Compensation for the purpose of applying
the limitations on allocations and benefits under Code Section 415. AElective
Contributions@ are amounts excludible from an Employee=s gross income under Code
Sections 125, 132(f)(4), 402(e)(3), 403(b), 402(h)(1)(B), or 457, or any other Elective
Deferrals as defined in Code Section 402(g)(3).
5. ARTICLE VI. BENEFITS, ' 6.6 Direct Transfers and Rollovers, paragraphs two and three
shall be amended to read as follows:
An eligible rollover distribution is any distribution of all or any portion of the
balance to the credit of the Participant, 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 Code
Section 401(a)(9); and (iii) the portion of any distribution that is not includible in gross
income (determined without regard to the exclusion for net unrealized appreciation with
respect to employer securities). For purposes of the direct rollover provisions in this '
6.6, 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 Code ' 408(a) or (b), or to a
qualified defined contribution plan described in Code ' 401(a) or 403(a) 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.
An eligible retirement plan is an individual retirement account described in
Code Section 408(a), an individual retirement annuity described in Code
Section 408(b), an annuity plan described in Code Section 403(a), or a qualified trust
described in Code Section 401(a) that accepts the distributee's eligible rollover
distribution. For purposes of the direct rollover provisions in this ' 6.6, an Eligible
Retirement Plan shall also mean an annuity contract described in Code ' 403(b) and an
eligible plan under Code ' 457(b) 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. 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 domestic relations order, as defined in Code ' 414(p).
IN WITNESS WHEREOF, this Resolution was adopted by the Poudre Fire Authority this ____
day of ________________, 2002.
POUDRE FIRE AUTHORITY
By: ____________________________
Its: ____________________
ATTEST:
By: ______________________________
Its: ______________________________
VII.
Old Hire 2nd Amendment
Resolution 03-6
Adopting the Second Amendment to the
Poudre Fire Authority Old Hire Money Purchase Pension Plan
And Trust Agreement as Amended and Restated, Effective December 24, 2001
WHEREAS, the Poudre Fire Authority (the "Employer"), established the Poudre Fire Authority
Old Hire-City Money Purchase Pension Plan and Trust Agreement (the "Plan"), effective January 1,
1988; and
WHEREAS, the Employer adopted the amended and restated Plan (the “2001 Restated Plan”),
effective December 24, 2001; and
WHEREAS, the Employer adopted via Resolution 02-13 the first amendment to the 2001
Restated Plan effective January 1, 2002; and
WHEREAS, the Board of Trustees of the Poudre Fire Authority Old Hire Money Purchase
Pension Plan and Trust Agreement have recommended the adoption of the 2001 Restated Plan
amendments set forth herein; and
WHEREAS, pursuant to ' 11.1 of the 2001 Restated Plan, the Employer has the authority to
amend the Plan with the approval of at least sixty-five percent of the total votes cast by actively-
employed eligible Employees and all former employees who are entitled to a benefit from the 2001
Restated Plan; and
WHEREAS, after a duly conducted election, the 2001 Restated Plan amendments set forth
herein were approved by at least sixty-five percent of the total votes cast by actively-employed eligible
Employees and all former employees who are entitled to a benefit from the 2001 Restated Plan.
NOW, THEREFORE, be it resolved by the Board of Directors of the Poudre Fire Authority
that the 2001 Restated Plan is hereby amended, effective April 22, 2003 as follows:
1. ARTICLE VII. THE TRUST AND TRUST FUND, ' 7.13 Loans to Participants shall be
revised to read as follows:
Old Hire Restatement
44
7.13 Loans to Participants:
(a) General Rules: The Trustees, in accordance with a uniform and
nondiscriminatory policy, may make a loan to any Participant (for purposes of this
Section 7.13, the term “Participant” shall include “Former Participant”) who makes a
written request for such a loan. The Trustees will promulgate rules and procedures
regarding Participant loans. No loan to a Participant may exceed the Participant's
vested Accrued Benefit. In addition, a loan, when added to the outstanding balance of
all other loans to the Participant from this and any other qualified Plan maintained by
the Employer, may not exceed the lesser of: (1) $50,000 less the excess of the highest
outstanding balance of loans from the Plan during the one-year period ending on the day
before such loan is made over the outstanding balance of loans from the Plan on the day
such loan is made; or (2) the greater of one-half of the value of the Participant's vested
Accrued Benefit as of the last preceding valuation date or $10,000.
(b) Security and Interest: All loans will be adequately secured and
will bear a rate of interest considered reasonable on the date the loan was made.
Participant loans will be considered a Participant-directed investment under Section 7.2
of the Participant requesting the loan and interest paid on the loan will be allocated to
the account of the Participant-borrower.
(c) Term of Loan: Any loan must be repaid in level payments of
principal and interest at least quarterly within five years of the date on which it was
made. However, any loan verified by the Trustees as used to acquire any dwelling unit
used or to be used within a reasonable time as the principal residence of the Participant
must be repaid within the time prescribed by the Trustees. If a Participant does not
repay a loan within the time prescribed, in addition to enforcing payment through any
legal remedy, the Trustees may deduct the total amount of the loan and any unpaid
interest due on it from the Participant's Account when the Account becomes
distributable under the Plan.
IN WITNESS WHEREOF, this Resolution was adopted by the Poudre Fire Authority this 22nd
day of April, 2003.
POUDRE FIRE AUTHORITY
By: ______________________________
Its: ______________________________
ATTEST:
By: ______________________________
Its: ______________________________
VIII.
Old Hire 3rd Amendment
Resolution 04-3
Adopting the Third Amendment to the Poudre Fire Authority
Old Hire Money Purchase Pension Plan and Trust Agreement
as Amended and Restated Effective December 24, 2001
WHEREAS, the Poudre Fire Authority (the "Employer"), established the Poudre Fire Authority
Old Hire-City Money Purchase Plan and Trust Agreement (the "Plan"), effective January 1, 1983; and
WHEREAS, the Plan merged with the Poudre Fire Authority Fire Protection District Plan to
form the Poudre Fire Authority Old Hire Money Purchase Pension Plan and Trust Agreement as
amended and restated, effective December 24, 2001 (the A2001 Restated Plan@); and
WHEREAS, the Employer adopted via Resolution 02-13 the First Amendment to the 2001
Restated Plan effective January 1, 2002; and
WHEREAS, the Employer adopted via Resolution 03-6 the Second Amendment to the 2001
Restated Plan effective April 22, 2003; and
WHEREAS, the Board of Trustees of the Poudre Fire Authority Old Hire Money Purchase
Pension Plan and Trust Agreement have recommended the adoption of the amendments set forth
herein; and
WHEREAS, pursuant to '11.1 of the 2001 Restated Plan, the Employer has the authority to
amend the Plan without the approval of Participants of said Plan solely for the purpose of incorporating
minor, technical amendments which are required from time to time by changes in state or federal laws
or regulations; and
WHEREAS, the Employer deems it advisable to amend the Plan and desires to further amend
the Plan to incorporate the minimum required distribution provisions of Code '401(a)(9) and the Final
Regulations thereunder, as required pursuant to IRS Revenue Procedure 2002-29.
NOW, THEREFORE, be it resolved by the Board of Directors of the Poudre Fire Authority
that the 2001 Restated Plan is hereby amended, effective January 1, 2003, as follows:
1. ARTICLE VII., DISTRIBUTION FROM TRUST FUND, '6.3, Post-Death
Distribution, shall be deleted in its entirety and replaced by a new '6.3, Required Minimum
Distribution Rules, to read as follows:
6.3 Required Minimum Distribution Rules
a. General Rules.
(1) Effective Date. The provisions of this Section 6.3 will apply for
purposes of determining required minimum distributions for calendar years
beginning with the 2003 calendar year.
(2) Precedence. The requirement of this Section 6.3 will take
precedence over any inconsistent provisions of the plan.
(3) Requirements of Treasury Regulations Incorporated. All
distributions required under this Section 6.3 will be determined and made in
accordance with the Treasury Regulations under Code '401(a)(9).
(4) TEFRA '242(b)(2) Elections. Notwithstanding the other
provisions of this Section 6.3, distributions may be made under a designation
made before January 1, 1984, in accordance with '242(b)(2) of the Tax Equity
and Fiscal Responsibility Act (TEFRA) and the provisions of the plan that relate
to '242(b)(2) of TEFRA.
b. Death of Participant Before Distribution 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 6.3(b), other than
Section 6.3(b)(1), will apply as if the surviving spouse were the Participant.
(5) For purposes of this Section 6.3(b) and Section 6.3(d), unless
Section 6.3(b)(4) applies, distributions are considered to begin on the
Participant's required beginning date. If Section 6.3(b)(4) applies, distributions
are considered to begin on the date distributions are required to begin to the
surviving spouse under Section 6.3(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 6.3(b)(1)), the date distributions are considered to begin is the
date distributions actually commence.
c. Required Minimum Distributions During Participant's Lifetime.
(1) 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:
(i) the quotient obtained by dividing the Participant's account
balance by the distribution period in the Uniform Lifetime Table set forth in
'1.401(a)(9)-9 of the Treasury Regulations, using the Participant's age as of the
Participant's birthday in the distribution calendar year; or
(ii) 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 '1.401(a)(9)-9 of the Treasury Regulations, using the
Participant's and spouse's attained ages as of the Participant's and spouse's
birthdays in the distribution calendar year.
Required minimum distributions will be determined under this
Section 6.3(c) beginning with the first distribution calendar year and up to and
including the distribution calendar year that includes the Participant's date of
death.
d. Required Minimum Distributions After Participant's Death.
(1) Death On or After Date Distributions Begin.
(i) 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:
(A) 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.
(B) 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.
(C) 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.
(ii) 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.
(2) Death Before Date Distribution Begin.
(I) Participant Survived by Designated Beneficiary. If the
Participant dies before the date distributions begin and there is a designated
beneficiary, the minimum amount that will be distributed for each distribution
calendar year after the year of the Participant's death is the quotient obtained by
dividing the Participant's account balance by the remaining life expectancy of
the Participant's designated beneficiary, determined as provided in Section
6.3(d)(1).
(ii) 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.
(iii) Death of Surviving Spouse Before Distributions to
Surviving Spouse Are Required to Begin. If the Participant dies before the date
distributions begin, the Participant's surviving spouse is the Participant's sole
designated beneficiary, and the surviving spouse dies before distributions are
required to begin to the surviving spouse under Section 6.3(b)(1), this Section
6.3(d)(2) will apply as if the surviving spouse were the Participant.
e. Definitions. The following definitions apply to this Section 6.3.
(1) Designated Beneficiary. The individual who is designated as the
Beneficiary by the Participant, or by the Plan, who is a "designated beneficiary"
under Code '401(a)(9) and '1.401(a)(9)-1, Q&A-4, of the Treasury
Regulations.
(2) Distribution Calendar Year. A calendar year for which a
minimum distribution if 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 6.3(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.
(3) Life Expectancy. Life expectancy as computed by use of the
Single Life Table in '1.401(a)(9)-9 of the Treasury Regulations.
Old Hire Restatement
51
(4) Participant's Account Balance. The balance of the Participant's
Account as of the last valuation date in the calendar year immediately preceding
the distribution calendar year (valuation calendar year) increased by the amount
of any contributions made and allocated or forfeitures allocated to the Account
as of dates in the valuation calendar year after the valuation date and decreased
by distributions made in the valuation calendar year after the valuation date.
The account balance for the valuation calendar year includes any amounts rolled
over or transferred to the Plan either in the valuation calendar year or in the
distribution calendar year if distributed or transferred in the valuation calendar
year.
(5) Required Beginning Date. The latest date for commencement of
distributions for a Participant, as determined under Section 6.4 of the Plan
IN WITNESS WHEREOF, this Resolution was adopted by the Poudre Fire Authority this 24th
day of February, 2004.
POUDRE FIRE AUTHORITY
By: _________________________________
PFA Board Chair
ATTEST:
By: _________________________________
Recording Secretary
SAW\57133\348247.07
IX.
Old Hire Reinstatement
09/2001
SAW\57133\348247.07
RESTATED
POUDRE FIRE AUTHORITY
OLD HIRE MONEY PURCHASE PENSION PLAN
AND
TRUST AGREEMENT
December 24, 2001
SAW\57133\348247.07 Old Hire Restatement
i
TABLE OF CONTENTS
Page
ARTICLE I. PURPOSE .........................................................................................................................................1
ARTICLE II. DEFINITIONS AND CONSTRUCTION.........................................................................................2
2.1 Definitions.....................................................................................................................................................2
(a) Accrued Benefit.........................................................................................................................................2
(b) Aggregate Account....................................................................................................................................3
(c) Authorized Leave of Absence ...................................................................................................................3
(c) Beneficiary ................................................................................................................................................3
(d) Compensation............................................................................................................................................3
(e) Disability ...................................................................................................................................................3
(f) Effective Date............................................................................................................................................4
(g) Employee...................................................................................................................................................4
(h) Employee Contribution Account ...............................................................................................................5
(i) Employee Rollover Account .....................................................................................................................5
(i) Employee Voluntary Contribution Account..............................................................................................5
(j) Employer ...................................................................................................................................................5
(k) Employer Contribution Account ...............................................................................................................5
(l) Fiduciaries .................................................................................................................................................5
(m) Former Participant.....................................................................................................................................5
(o) Income.......................................................................................................................................................5
(p) Internal Revenue Code ..............................................................................................................................5
(q) Normal Retirement Age ............................................................................................................................5
(r) Participant..................................................................................................................................................5
(s) Participation...............................................................................................................................................5
(t) Plan............................................................................................................................................................6
(u) Service.......................................................................................................................................................6
(v) Trust (or Trust Fund).................................................................................................................................6
(w) Valuation Date...........................................................................................................................................6
(x) Year (Plan Year)........................................................................................................................................6
2.2 Construction ..................................................................................................................................................6
ARTICLE III. PARTICIPATION AND SERVICE..................................................................................................6
3.1 Participation ..................................................................................................................................................6
3.2 Participation Upon Re-Employment .............................................................................................................6
3.3 Mandatory Participation in Plan....................................................................................................................7
ARTICLE IV. CONTRIBUTIONS AND FORFEITURES ......................................................................................7
4.1 Employer Contributions ................................................................................................................................7
4.2 Contributions by Participants ........................................................................................................................7
4.3 Disposition of Forfeitures..............................................................................................................................8
4.4 Rollover Contributions ..................................................................................................................................8
ARTICLE V. ALLOCATIONS TO PARTICIPANTS' ACCOUNTS.....................................................................9
5.1 Individual Accounts ......................................................................................................................................9
5.2 Account Adjustments ....................................................................................................................................9
5.3 Maximum Additions....................................................................................................................................10
5.4 Multiple Plan Reduction..............................................................................................................................12
5.5 Qualified Military Service...........................................................................................................................13
5.6 Return of Contributions...............................................................................................................................13
ARTICLE VI. BENEFITS ......................................................................................................................................13
6.1 Benefits........................................................................................................................................................13
SAW\57133\348247.07 Old Hire Restatement
ii
6.2 Payment of Benefits ....................................................................................................................................14
6.3 Post-Death Distribution...............................................................................................................................16
6.4 Designation of Beneficiary..........................................................................................................................17
6.5 Distributions Under Domestic Relations Order...........................................................................................17
6.6 Direct Transfers and Rollovers....................................................................................................................17
ARTICLE VII. THE TRUST AND TRUST FUND.............................................................................................19
7.1 Contributions to Trust .................................................................................................................................19
7.2 Participant Direction of Investment.............................................................................................................19
7.3 Trustees' Powers and Duties........................................................................................................................20
7.4 Further Powers of the Trustees....................................................................................................................22
7.5 Investment Manager ....................................................................................................................................23
7.6 Claims Procedure ........................................................................................................................................24
7.7 Records and Reports....................................................................................................................................25
7.8 Other Administrative Powers and Duties ....................................................................................................25
7.9 Rules and Decisions ....................................................................................................................................26
7.10 Benefit Payments.........................................................................................................................................26
7.11 Application and Forms for Benefits ............................................................................................................26
7.12 Indemnification ...........................................................................................................................................26
7.13 Loans to Participants ...................................................................................................................................26
7.14 Payment of Expenses and Fees....................................................................................................................27
7.15 Protection of the Trustees............................................................................................................................28
7.16 Accounts of the Trustees .............................................................................................................................28
ARTICLE VIII. TRUSTEES .................................................................................................................................29
8.1 Trustees .......................................................................................................................................................29
8.2 Use of Corporate Trustee.............................................................................................................................30
8.3 Officers........................................................................................................................................................31
8.4 Officer Responsibilities...............................................................................................................................31
8.5 Annual Meeting...........................................................................................................................................31
8.6 Quorum........................................................................................................................................................32
8.7 Majority Vote ..............................................................................................................................................32
ARTICLE IX. FIDUCIARIES ................................................................................................................................32
9.1 Fiduciaries ...................................................................................................................................................32
9.2 General Fiduciary Duties.............................................................................................................................33
9.3 Bonding and Insurance................................................................................................................................33
9.4 Delegation of Authority...............................................................................................................................33
ARTICLE X. MISCELLANEOUS........................................................................................................................34
10.1 Nonguarantee of Employment.....................................................................................................................34
10.2 Rights to Trust Assets..................................................................................................................................34
10.3 Nonalienation of Benefits............................................................................................................................34
10.4 Payments to Minors or Persons of Unsound Mind......................................................................................35
10.5 Disposition of Unclaimed Payments ...........................................................................................................35
10.6 Severability of Provisions............................................................................................................................35
10.7 Trust and Plan to be Tax Exempt ................................................................................................................35
ARTICLE XI. AMENDMENT OR TERMINATION OF THE PLAN..................................................................36
11.1 Right and Restrictions .................................................................................................................................36
11.2 Merger or Consolidation of the Plan ...........................................................................................................36
ARTICLE XII. GOVERNING LAW ...................................................................................................................37
Old Hire Restatement
1
POUDRE FIRE AUTHORITY
OLD HIRE MONEY PURCHASE PENSION PLAN
AND
TRUST AGREEMENT
WHEREAS, Poudre Fire Authority continues, within this Trust Agreement, a Plan for the
administration and distribution of contributions made by the Employer and its eligible Employees for
the purpose of providing retirement benefits for its eligible Employees. This Plan is an amended plan,
in restated form, resulting from the merger of two plans: The Poudre Fire Authority (Old Hire-City)
Money Purchase Pension Plan and Trust Agreement (hereinafter referred to as the "Old Hire-City
Plan"), and the Poudre Valley Fire Protection District Pension Plan (hereinafter referred to as the
"District Pension Plan") (the Old Hire-City Plan and the District Pension Plan shall collectively be
referred to hereinafter as the "Prior Plans"). The provisions of this Plan shall apply solely to an
Employee whose employment with the Employer terminates on or after the restated Effective Date of
the Plan. If an Employee's employment with the Employer terminates prior to the restated Effective
Date, that Employee shall be entitled to benefits under the Prior Plan in which such Employee
participated, as such Prior Plan existed on the date of the Employee's termination of employment.
Now, therefore, the Poudre Fire Authority amends and restates the Old Hire Money Purchase
Pension Plan and Trust Agreement to be effective December 24, 2001, the terms of which shall
supersede the provisions of any plan in effect prior to December 24, 2001.
ARTICLE XIV. PURPOSE
Effective as of December 24, 2001, Poudre Fire Authority, known as the Employer, and
______, ______, ______, ______, and _______ as the Trustees, hereby adopt and establish the
Amended and Restated Poudre Fire Authority Old Hire Money Purchase Pension Plan and Trust
Agreement.
SAW\57133\348247.07 Old Hire Restatement
2
The purpose of the Plan is to reward Employees of the Employer for their loyal and faithful
service, to help the Employees accumulate funds for their later years and to provide funds for their
beneficiaries in the event of death or disability. The benefits provided by this Plan will be paid from a
Trust Fund established by the Employer as a result of the merger of the Prior Plans, and will be in
addition to the benefits Employees are entitled to receive under any other programs of the Employer.
The provisions of this Plan and Trust shall apply only to an Employee who terminates
employment on or after the Effective Date of this Plan (December 24, 2001). Each Participant shall be
entitled to receive a benefit immediately after the merger (determined as if such Prior Plan had then
terminated) which is equal to or greater than the benefit he would have been entitled to receive
immediately before such merger (if the Prior Plan had then terminated). The rights and benefits, if
any, of a former employee whose employment terminated prior to December 24, 2001 shall be
determined in accordance with the provisions of any Prior Plan and Trust in effect on the date his
employment terminated.
The Plan is being established pursuant to C.R.S. § 31-30.5-802 and 31-31-601 and is a
governmental retirement plan exempt from the provisions of the Employee Retirement Income
Security Act. The Plan and Trust are intended to meet the requirements of Sections 401(a) and 501(a)
of the Internal Revenue Code of 1986 to the extent applicable to governmental plans.
ARTICLE XV. DEFINITIONS AND CONSTRUCTION
15.1 Definitions: The following words and phrases, when used herein, unless their context
clearly indicates otherwise, shall have the following respective meanings:
(a) Accrued Benefit: Means the amount standing in a Participant's account(s) as of
any date derived from Employer contributions, Mandatory Participant Contributions and Rollover
Contributions.
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(b) Aggregate Account: The value of all accounts maintained on behalf of a
Participant, whether attributable to Employer or Employee contributions or rollover accounts.
(c) Authorized Leave of Absence: Any absence authorized by the Employer under
the Employer's standard personnel practices provided that all persons under similar circumstances must
be treated alike in the granting of such Authorized Leaves of Absence and provided further that such
leave shall end as of the date it was extended to.
(d) Beneficiary: A person or persons (natural or otherwise) designated by a
Participant in accordance with the provisions of Section 6.4 to receive any death benefit which shall be
payable under this Plan.
(e) Compensation: A Participant's base salary received from the Employer for
personal services during the Year, but excluding holiday pay, acting officer pay, longevity pay, bonus
payments, payments for unused vacation, overtime, uniform cleaning and travel allowances, and
excluding any benefits paid under this Plan or any other retirement or life insurance program or under
any other health or welfare plan. For purposes of allocating the Employer's contribution for the Year
in which a Participant begins or resumes Participation, Compensation shall be determined as of the
first day of the year in which the Employee became a Participant and Compensation before his
Participation began or resumed shall be disregarded. Contributions shall be made on a Participant's
base salary as defined herein, before taking into account the reduction of any salary deferrals under the
Employer's deferred compensation plan maintained under Code Section 457. Effective January 1,
1994, Compensation in excess of $150,000 (as adjusted by the Secretary of the Treasury for cost of
living increases or by Congress) shall not be taken into account under the Plan.
(f) Disability: Disability hereunder shall mean when a Participant is found by the
Board of Directors of the Colorado Fire and Police Pension Association to be eligible for disability
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benefits as a result of such Participant's becoming totally disabled or occupationally disabled as
provided under and defined in C.R.S. Section 31-31-803.
(g) Effective Date: The original effective date is January 1, 1983. The Effective
Date of this amended and restated Plan shall be December 24, 2001, except as otherwise noted.
(h) Employee: Employee shall mean any person:
(1) who is employed by the Employer on or after the Effective Date; and
(2) whose most recent employment with the Employer or the City
commenced prior to April 8, 1978 or whose most recent employment with the Employer or the City
commenced on or after April 8, 1978, but before January 1, 1980, and who complies with the
requirements set forth in C.R.S. Section 31-30.5-103(1)(b).
(3) who is paid by the Employer on a salary basis; and
(4) whose duties are directly involved with the provision of fire protection as
certified by the Employer.
The term "Employee" shall not mean nor include clerical or other personnel
whose services for the Employer are auxiliary to actual fire protection or any volunteer firefighter, as
defined in C.R.S. Section 31-30-1102(9), as may be amended from time to time.
Anything contained in this Section 2.1(h) to the contrary notwithstanding, the
term "Employee" shall also mean any person who was a participant in the Poudre Valley Fire
Protection District Pension Plan as in effect on December 31, 1989, as amended, and who continues to
be a participant on the Effective Date.
The Employer shall, under its current employment policies, make the
determination of whether a person employed by it meets the definition of "Employee" as set forth
herebefore in this Section 2.1(h).
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(i) Employee Contribution Account: The account maintained for a Participant to
record his mandatory contributions to the Plan and adjustments relating thereto.
(j) Employee Rollover Account: The account established to hold and account for
the contributions rolled over by a Participant from Prior Plans or any other qualified rollover.
(k) Employee Voluntary Contribution Account: The account maintained for a
Participant to record his voluntary contribution to the Trust and adjustments relating thereto.
(l) Employer: The Employer shall mean the Poudre Fire Authority.
(m) Employer Contribution Account: The account maintained for a Participant to
record his share of the contributions of the Employer and adjustments relating thereto.
(n) Fiduciaries: The Employer and the Trustees, but only with respect to the
specific responsibilities of each for Plan and Trust administration, all as described in Article IX.
(o) Former Participant: A Participant whose employment with the Employer has
terminated but who has a vested account balance under the Plan which has not been paid in full.
(p) Income: The net gain or loss of the Trust Fund from investments, as reflected
by interest payments, dividends, realized and unrealized gains and losses on securities, other
investment transactions and expenses paid from the Trust Fund. In determining the Income of the
Trust Fund for any period, assets shall be valued on the basis of their fair market value.
(q) Internal Revenue Code: The Internal Revenue Code of 1986, as amended.
(r) Normal Retirement Age: The date a Participant completes twenty (20) Years of
Service or attains the age of fifty (50), whichever occurs first.
(s) Participant: An Employee participating in the Plan in accordance with the
provisions of Section 3.1.
(t) Participation: The period commencing as of the date the Employee became a
Participant and ending upon the termination of employment.
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(u) Plan: The Poudre Fire Authority Old Hire Money Purchase Pension Plan and
Trust, the Plan set forth herein, as amended from time to time.
(v) Service: A Participant's period of employment with the Employer determined in
accordance with Section 3.2.
(w) Trust (or Trust Fund): The Trust maintained in accordance with the terms of
this Trust Agreement, as from time to time amended, which constitutes a part of this Plan, and the
funds now or hereafter placed with the Trustees to be held, invested and paid out pursuant to the
provisions of this Plan and Trust Agreement.
(x) Valuation Date: The Valuation Date is the last day of each Year or such other
date or dates deemed necessary by the Trustees. The Valuation Date may include any day during the
Plan Year that the Trustees, any transfer agent appointed by the Trustees and any stock exchange used
by such agent are open for business.
(y) Year (Plan Year): The plan year consisting of the 12-month period commencing
on January 1 and ending on the following December 31.
15.2 Construction: The masculine gender, where appearing in this Plan and Trust, shall be
deemed to include the feminine gender, unless the context clearly indicates to the contrary.
ARTICLE XVI. PARTICIPATION AND SERVICE
16.1 Participation: Each Employee becomes a Participant in the Plan on the later of his date
of hire or the date he attains age 18. Each Employee who was a Participant in the Prior Plans on the
day before the Effective Date of this restated Plan continues as a Participant in the Plan.
16.2 Participation Upon Re-Employment: If the Service of an Employee terminates and he
or she is re-employed as an Employee, such re-employed Employee will be eligible to become a
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Participant and shall begin participation in the Plan on the date he or she is re-employed by the
Employer as an Employee and is first compensated as a re-employed Employee.
16.3 Mandatory Participation in Plan: Except as provided in the following sentence, all
Employees who are eligible to participate in the Plan must participate in the Plan as a condition of their
employment as an Employee with the Employer, and no current Participant may elect to discontinue
his or her participation in the Plan. The provisions of this Section 3.3 may not be applicable to the fire
chief of the Employer, provided that the applicable provisions of the Colorado Revised Statutes are
complied with, and further provided that if said chief participates in another retirement plan sponsored
by the Employer, such participation in such other retirement plan does not detrimentally impact the
continued tax qualification of this Plan and Trust Agreement under the Internal Revenue Code.
ARTICLE XVII. CONTRIBUTIONS AND FORFEITURES
17.1 Employer Contributions: Not less than monthly, the Employer shall pay into the Trust
Fund an amount equal to eight percent (8%) of the Compensation of all Participants eligible to receive
a contribution for such month.
17.2 Contributions by Participants:
(a) Mandatory Contributions: Not less than monthly, each Participant will be
required to make a mandatory contribution of eight percent (8%) of their monthly Compensation.
The Employer shall pick up Mandatory Employee Contributions for all Compensation
paid after the Effective Date and the contributions so picked up shall be treated as Employer
contributions pursuant to Section 414(h)(2) of the Internal Revenue Code in determining tax treatment
under such Code. The Employer shall pay these Employee contributions directly to the Trust Fund in
lieu of paying such amounts to Employees, and such contributions shall be paid from the same funds
which are used in paying salaries to the Employees. Employee contributions so picked up shall be
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treated for all purposes of this Plan, other than federal tax, in the same manner as Employee
contributions which are not picked up by the Employer.
(b) Voluntary Contributions: In order to encourage savings and investments by
Participants, each Participant voluntarily may contribute to the Trust an amount not to exceed seven
percent (7%) of Compensation in addition to contributions under subparagraph (a) of this subsection.
All contributions shall be made by payroll deduction. The percentage, if any, which a Participant
contributes under this section may be changed by filing a written notice with the Plan Manager prior to
the effective date of such change. All voluntary contributions shall be paid to the Trustee by the
Employer at least monthly. No Participant shall have any obligation to make any voluntary
contribution.
17.3 Disposition of Forfeitures: The amount of a Participant's Accrued Benefit forfeited
under the Plan pursuant to Section 10.5 is a Participant forfeiture. Subject to any restoration allocation
required under Section 10.5, the Trustees will use, allocate and credit the forfeiture as an additional
Employer contribution for the Plan Year in which the forfeiture occurs. The Trustees will allocate the
participant forfeitures for a Plan Year to the Account of each Participant in the same ratio that each
Participant's Compensation for the Plan Year bears to the total Compensation of all Participants for the
Plan Year. A Participant will not share in the allocation of a forfeiture of any portion of his Accrued
Benefit.
17.4 Rollover Contributions: As permitted by law, an Employee who has an entitlement to a
distribution of his entire interest in a plan which meets the requirements of Section 401(a) of the
Internal Revenue Code or from an Individual Retirement Account may, in accordance with the
procedures of the Trustees, transfer the rollover amount to the Trustees. The plan-to-Plan rollover
must be executed on or before the 60th day after the day on which he is entitled to receive such
distribution, to the extent that the fair market value of the rollover amount exceeds the amounts
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considered contributed by the Employee, reduced by any amounts previously distributed to him which
were not includible in gross income. Such rollover amount shall be non-forfeitable, shall be held in a
separate account and shall receive income allocations. The acceptance of the rollover amounts and the
provisions established by the Trustees shall be governed by the provisions of the Internal Revenue
Code.
ARTICLE XVIII. ALLOCATIONS TO PARTICIPANTS' ACCOUNTS
18.1 Individual Accounts: The Trustees shall create and maintain adequate records to
disclose the interest in the Trust of each Participant, Former Participant and Beneficiary. Such records
shall be in the form of individual accounts, and credits and charges shall be made to such accounts in
the manner herein described. A Participant may have up to five (5) separate accounts: an Employer
Contribution Account, a Mandatory Employee Contribution Account, Employee Voluntary
Contribution Account, Employee Mandatory Post Tax Contribution Account, and an Employee
Rollover Account. The maintenance of individual accounts is only for accounting purposes, and a
segregation of the assets of the Trust Fund to each account shall not be required. Distribution and
withdrawals made from an account shall be charged to the accounts as of the date paid.
18.2 Account Adjustments: The accounts of Participants, Former Participants and
Beneficiaries shall be adjusted in accordance with the following:
(a) Income: On each business day of the Year, a daily determination of unrealized
and realized gains and losses, interest, dividends and capital gain distributions will be calculated and
allocated based on the actual activity in each Participant's account. Activity includes, but is not limited
to, allocation of contributions, forfeitures and distributions. Earnings or losses with respect to a
Participant's directed account shall be allocated in accordance with Section 7.2.
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Participant's transfers from other qualified plans and voluntary contributions deposited
in the general Trust Fund shall share in any earnings and losses (net appreciation or net depreciation)
of the Trust Fund in the same manner provided above. Each segregated account maintained on behalf
of a Participant shall be credited or charged with its separate earnings and losses.
(b) Employer Contributions: Employer contributions shall be allocated to the
Employer Contribution Account of each eligible Participant not less than monthly, according to the
amount that is actually contributed on behalf of each Participant in accordance with Section 4.1.
(c) Expenses: To the extent the Employer does not pay the administrative, legal,
investment and consulting fees of the Trust in accordance with Section 7.14, such expenses shall be
paid and shall be allocated to and deducted from the accounts of Participants. Expenses which are
incurred as a direct result of the investments held in the Trust, shall be deducted from the interest,
dividends and net income of the appropriate investment prior to allocating each month's Income to
Participants. General administrative, legal and consulting fees and expenses shall be deducted from
the accounts of all Participants in the proportion that each Participant's account balance bears to the
total account balances of all Participants in the Plan on the date such expenses are deducted.
18.3 Maximum Additions: Notwithstanding anything contained herein to the contrary, the
total Additions made to the Employer and Employee Contribution Accounts of a Participant for any
Year shall not exceed the "Maximum Permissible Amount," reduced by the sum of any Additions
allocated to the Participant's accounts for the same Year under any other defined contribution plan or
welfare benefit fund (as defined in Code Section 419(e)) maintained by the employer. The Maximum
Permissible Amount shall be equal to the lesser of $30,000 or 25% of the Participant's Compensation
for such Year, or such amount as provided in §415 of the Internal Revenue Code.
(a) The term "Additions" means the total of the Employer contributions and
forfeiture amounts allocated to a Participant's Employer Contribution Account, plus the amount of any
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Employee Contributions to the Plan. Amounts allocated to an individual medical account (as defined
in Code Section 415(1)(2)) included as part of a defined benefit plan maintained by the Employer are
Additions. Furthermore, Additions include contributions paid or accrued attributable to post-
retirement medical benefits allocated to the separate account of a key employee (as defined in Code
Section 419A(d)(3)) under a welfare benefit fund (as defined in Code Section 419(e)) maintained by
the Employer.
(b) "Addition" does not include "rollovers" from a qualified plan or Individual
Retirement Account as defined in the Internal Revenue Code.
(c) As of January 1 of each calendar year, and applicable for that Plan Year, the
dollar limit may be adjusted for increases in the cost of living in accordance with regulations
prescribed by the Secretary of the Treasury or his delegate. If such additions exceed the limitation, the
contributions made by the Participant for the Year, which cause the excess, shall be returned to the
Participant. If, after returning the Participant's contribution an excess still exists, such excess which is
attributable to Forfeitures shall be held in a suspense account. Such account may be maintained if
(1) no Employer contributions are made when their allocation could be precluded by Section 415 of the
Internal Revenue Code, (2) no income is allocated to the account, and (3) amounts in the account are
allocated as of each allocation date on which Forfeitures may be allocated until the account is
exhausted. Upon termination of the Plan, the balance of such account may revert to the Employer.
(d) For purposes of this section, the limitation year shall mean the Plan Year. The
term "Compensation" means, for purposes of Sections 5.3 and 5.4 only, a Participant's earned income,
wages, salaries, fees for professional services and other amounts received for personal services actually
rendered in the course of employment with the employer maintaining the Plan, including cash awards
and elective contributions. “Elective contributions” are amounts excludible from an Employee’s gross
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income under Code Section 125, and amounts contributed by the Employer, at the Employee’s
election, to a Code Section 457 Plan arrangement or a cafeteria plan.
18.4 Multiple Plan Reduction: If an Employee is a Participant in one or more defined benefit
plans and one or more defined contribution plans maintained by the Employer, the sum of the defined
benefit plan fraction and the defined contribution plan fraction for any Plan Year prior to January 1,
2000 may not exceed 1.0. The defined benefit plan fraction for any year is a fraction (a) the numerator
of which is the projected "annual benefit" of the Participant under the Plan (determined as of the close
of the Year), and (b) the denominator of which is the lesser of: (1) the product of 1.25 multiplied by the
maximum dollar limitation in effect under Section 415(b)(1)(A) of the Code for such year, or (2) the
product of 1.4 multiplied by the amount which may be taken into account under Section 415(b)(1)(B)
of the Code for such year. The defined contribution plan fraction for any year is a fraction (a) the
numerator of which is the sum of the "annual additions" to the Participant's Account as of the close of
the Year and (b) the denominator of which is the sum of the lesser of the following amounts
determined for such year and each prior Year of Service with the Employer: (1) the product of 1.25
multiplied by the dollar limitation in effect under Section 415(c)(1)(A) of the Code for such year
(determined without regard to Section 415(c)(6) of the Code), or (2) the product of 1.4 multiplied by
the amount which may be taken into account under Section 415(c)(1)(B) of the Code for such year.
At the election of the Trustees, in applying the provision of Section 5.4 with respect to
the defined contribution plan fraction for any Year ending after January 1, 1984, the amount taken into
account for the denominator for each Participant for all Years ending before December 31, 1983 shall
be an amount equal to the product of (a) the amount of the denominator determined under Section 5.4
(as in effect for the Year ending in 1982) for Years ending in 1982, multiplied by (b) the "transition
fraction."
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For purposes of the preceding paragraph, the term "transition fraction" shall mean a
fraction (a) the numerator of which is the lesser of (1) $51,875 or (2) 1.4 multiplied by twenty-five
percent (25%) of the Participant's Compensation for the Year ending in 1981, and (b) the denominator
of which is the lesser of (1) $41,500 or (2) twenty-five percent (25%) of the Participant's
Compensation for the Year ending in 1981.
18.5 Qualified Military Service. Notwithstanding any provision of this Plan to the contrary,
contributions, benefits and service credit with respect to qualified military service will be provided in
accordance with Section 414 (u) of the Internal Revenue Code.
18.6 Return of Contributions. An Employer Contribution which is made by reason of a
mistake of fact, or where the contribution was conditioned upon its deductibility, shall be returned to
the Employer in accordance with this section. The return to the Employer of the amount involved must
be made within one (1) year after:
(a) the Employer made the contribution by mistake of fact; or
(b) the disallowance of the contribution as a deduction, and then, only to the extent of
the disallowance.
ARTICLE XIX. BENEFITS
19.1 Benefits: If a Participant's employment with the Employer is terminated, the Participant
shall be entitled to receive the entire vested amount then in the Participant's Aggregate Accounts in
accordance with Section 6.2. The Employer Contribution Account, Mandatory Employee Account,
Employee Voluntary Contribution Account, Employee Mandatory Post Tax Contribution Account, and
the Employee Rollover Account balance shall be one-hundred percent (100%) vested at all times.
Upon termination of employment, the Employer shall notify the Trustees in writing of
the name and address of the Participant who has terminated employment. The Trustees shall determine
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the amount of the Participant's Aggregate Accounts as calculated above and shall, subject to the
election of the Participant as provided in Section 6.2, distribute such to the Participant as soon as
administratively practicable after the Participant's termination of employment.
19.2 Payment of Benefits:
(a) Within a reasonable time prior to or following termination of a Participant's
employment for any reason, the Trustees shall provide to the Participant a benefit application form,
which shall describe in plain language the terms and conditions of the optional forms of benefits
described below and which shall be provided for the Participant to indicate his benefit commencement
date, his election of an optional form of benefit, and his Beneficiary or contingent annuitant. The
completed benefit application form should be returned to the Trustees prior to the Participant's benefit
commencement date. If the Participant files another benefit application form after the first form and
prior to his benefit commencement date, the earlier form shall be deemed annulled.
The Trustees shall follow a Participant's Beneficiary designation and may follow the
method of payment, if any, selected by the Participant in the case of a distribution on account of the
Participant's death.
Payment of a Participant's benefits must commence within a reasonable time after the
Participant's termination of employment. In any event, payment of a terminated Participant's benefits
shall, unless the Participant otherwise elects a later date in writing, begin not later than the 60th day
after the latest of the close of the Year in which (1) the Participant attains age 55, (2) the occurrence of
the 10th anniversary of the year in which the Participant commenced participation in the Plan, or
(3) the Participant terminates employment with the Employer. Notwithstanding any provision above to
the contrary, mandatory minimum distributions of a Participant's benefits shall commence either
during the taxable year in which he attains age 70-1/2, or the year in which he actually retires,
whichever is later. Alternatively, distributions to a Participant must begin no later than such taxable
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year and must be made over the life of the Participant (or lives of the Participant and the Participant's
spouse) or over a period not exceeding the life expectancy of the Participant (or the life expectancies of
the Participant and the Participant's spouse). Distributions (as described above) may be made to a
Participant and a non-spouse Beneficiary provided as the measuring lives remain those of the
Participant and the Participant's spouse.
The methods of payment available to a Participant are as follows:
(1) In a lump sum,
(2) By the purchase of a single-premium nontransferable annuity contract from a
legal reserve life insurance company, with a term and in the form as the Participant, with the approval
of the Trustees, shall determine,
(3) A joint and 50% survivor annuity, or
(4) Periodic payments over a period not exceeding the life expectancy of the
Participant (or the joint life expectancies of the Participant and the Participant's designated
beneficiary), with any amounts remaining in the Plan to receive income and expense allocations
pursuant to Section 5.2(a) and (c).
For distributions made on or after January 1, 1993 notwithstanding any provision of the
Plan to the contrary which would otherwise limit a Participant's election under this section, a
Participant may elect, at the time and in the manner prescribed by the Trustees, to have any portion of
an eligible rollover distribution, as defined in Internal Revenue Code Section 402(c)(4), paid directly to
an eligible retirement plan specified by the Participant in a direct rollover.
Notwithstanding the foregoing, a Participant may elect to defer receipt of the balance in
his Aggregate Account. Such Former Participant shall receive Income allocations pursuant to
Section 5.2(a) and shall have trust expenses deducted pursuant to Section 5.2(c) until the balance of the
Former Participant's Aggregate Account has been distributed. A Former Participant may make
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application for distribution of his Aggregate Account in accordance with the procedures contained in
this section. In any event, a distribution option for a Former Participant's Aggregate Account shall be
elected no later than the close of the Year in which the Former Participant attains age 65.
Notwithstanding any provision herein to the contrary, if the present value of a Former
Participant's Accrued Benefit is less than $5,000, or whatever amount is provided under Internal
Revenue Code Section 411(a)(11)(A), the Plan may distribute the Accrued Benefit without the Former
Participant's consent.
(b) After a Participant attains Normal Retirement Age, the participant, until he retires,
has a continuing election to receive all or any portion of his Accrued Benefit. A Participant shall make
an election under this paragraph (b) on a form prescribed by the Trustees at any time during the Plan
Year for which his election is to be effective. In his written election, the Participant shall specify the
percentage or dollar amount he wishes the Trustees to distribute to him. Furthermore, the Participant's
election shall relate solely to the percentage or dollar amount specified in his election form and his
right to elect to receive an amount, if any, for a particular Plan Year greater than the dollar amount or
percentage specified in his election form shall terminate on the Valuation Date. The Trustees shall
make a distribution to a Participant in accordance with his election under this paragraph (b) within the
90-day period (or as soon as administratively practicable) after the Participant files his written election
with the Trustees. The Trustees shall distribute the balance of the Participant's Accrued Benefit not
distributed pursuant to his election(s) in accordance with the other distribution provisions of this Plan.
19.3 Post-Death Distribution: Notwithstanding any provision herein to the contrary, where
distributions did commence before death, distributions must continue to be made at least as rapidly as
the deceased elected.
Where distributions did not commence before death, benefits shall be distributed within
the five year period following the date of death unless (i) a portion of benefits is payable to a
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designated Beneficiary, and that portion will be distributed over the life of the Beneficiary, and
distributions commence no later than 1 year after the date of death; and/or (ii) a portion of the benefits
is to be paid to the surviving spouse and is distributed over the life of, or a period not exceeding the life
of, the spouse, and the distributions commence no later than the date on which the Employee would
have attained age 70-1/2.
19.4 Designation of Beneficiary: Each Participant from time to time may designate any
person or persons (who may be designated contingently or successively and who may be an entity
other than a natural person) as his Beneficiary or Beneficiaries to whom his Plan benefits are paid if he
dies before receipt of all such benefits. Each Beneficiary designation shall be in the form prescribed
by the Trustees and will be effective only when filed with the Trustees during the Participant's lifetime.
Each Beneficiary designation filed with the Trustees will cancel all Beneficiary designations
previously filed with the Trustees.
If any Participant fails to designate a Beneficiary in the manner provided above, or if
the Beneficiary designated by a deceased Participant dies before him or before complete distribution of
the Participant's benefits, the Trustees, in their discretion, may distribute such Participant's benefits (or
the balance thereof) pursuant to Colorado law.
19.5 Distributions Under Domestic Relations Order. Nothing contained in this Plan
prevents the Trustees from complying with the provisions of a domestic relations order pursuant to
C.R.S. § 14-10-113. A distribution to an alternate payee shall be made as soon as administratively
practicable after the Trustees determines that an order submitted to the Plan complies with the terms of
C.R.S. § 14-10-113, and shall be in the form of a lump sum.
19.6 Direct Transfers and Rollovers. This section applies to distributions made on or after
January 1, 1993. Notwithstanding any provision of the Plan to the contrary that would otherwise limit
a distributee's distribution election under this Article, a distributee may elect, at the time and in the
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manner prescribed by the Trustee, to have any portion of an eligible rollover distribution paid directly
to an eligible retirement plan specified by the distributee in a direct rollover.
An eligible rollover distribution is any distribution of all or any portion of the balance to
the credit of the Participant, 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 Code
Section 401(a)(9); and (iii) the portion of any distribution that is not includible in gross income
(determined without regard to the exclusion for net unrealized appreciation with respect to employer
securities).
An eligible retirement plan is an individual retirement account described in Code
Section 408(a), an individual retirement annuity described in Code Section 408(b), an annuity plan
described in Code Section 403(a), or a qualified trust described in Code Section 401(a) that accepts the
distributee's eligible rollover distribution. However, in the case of an eligible rollover distribution to
the surviving spouse, an eligible retirement plan is an individual retirement account or individual
retirement annuity.
A distributee includes an Employee or former Employee. In addition, the Employee's
or former Employee's surviving spouse and the Employee's or former Employee's spouse or former
spouse who is the alternate payee under a qualified domestic relations order, as defined in Code
Section 414(p), are distributees with regard to the interest of the spouse or former spouse.
A direct rollover is a payment by the Plan to the eligible retirement plan specified by the
distributee.
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The Trustees may establish procedures for the distribution of eligible rollover
distributions, including any limitations on the amount eligible for a rollover distribution, to the extent
permitted by law.
ARTICLE XX. THE TRUST AND TRUST FUND
20.1 Contributions to Trust: All contributions under this Plan shall be paid to the Trustees
and deposited in the Trust Fund. All assets of the Trust Fund, including investment income, shall be
retained for the exclusive benefit of Participants, Former Participants, and Beneficiaries and shall be
used to pay benefits to such persons or to pay administrative expenses of the Plan and Trust Fund to
the extent not paid by the Employer and shall not revert to or inure to the benefit of the Employer.
Notwithstanding anything herein to the contrary, upon the Employer's request, a
contribution which was made by a mistake of fact shall be returned by the Trustees to the Employer
within one year after the payment of the contribution.
20.2 Participant Direction of Investment: The investment of Trust funds hereunder is
governed by the provisions of C.R.S. §31-30.5-803(2). To the extent allowed by the Trustees, each
Participant shall exercise control of the investment of the Participant's individual Aggregate Account
under the Plan. The Trustees shall select at least three investment alternatives, each of which is
diversified in itself, that allow the Participant a broad range of investments and a meaningful choice
between risk and return in the investment of the Participant's individual Aggregate Account. The
Trustees shall allow each Participant to change investments at least once each calendar quarter. The
Trustees shall provide the Participant with information describing the investment alternatives, and the
nature, investment performance, fees, and expenses of the investment alternatives and other
information to assist a Participant in making informed investment decisions. The Trustees may
establish written procedures for Participant direction of investment under this Plan. The Trustees are
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not liable for any loss, nor are they liable for any breach resulting from a Participant's control and/or
direction of the investment of any part of the Participant's individual Aggregate Account. Moreover,
the Trustees may decline to implement participant instructions which would result in a prohibited
transaction or would generate income which would be taxable to the Plan.
As of each Valuation Date, all Participant-directed accounts shall be charged or credited
with the net earnings, gains, losses and expenses as well as any appreciation or depreciation in the
market value using publicly-listed fair market values when available or appropriate.
(a) To the extent that the assets in a Participant's directed account are accounted for
as pooled assets or investments, the allocation of earnings, gains and losses of each Participant's
directed account shall be based upon the total amount of funds so invested, in a manner proportionate
to the participant's share of such pooled investment.
(b) To the extent that the assets in the Participant's account are accounted for as
segregated assets, the allocation of earnings, gains and losses from such assets shall be made on a
separate and distinct basis.
20.3 Trustees' Powers and Duties: To the extent funds held by the Trust are not invested
pursuant to Participant direction as provided in Section 7.2 hereof, it shall be the duty of the Trustees
to hold the funds from time to time received by it from the Employer, to manage, invest and reinvest
the Trust Fund and the income therefrom pursuant to the provisions hereinafter set forth, without
distinction between principal and income. The Trustees shall be responsible only for such sums as
shall be actually received by it as Trustees. The Trustees shall have no duty to collect any sums from
the Employer or the Participants.
The Trustees shall have the power to invest and/or reinvest any and all money or
property of any description at any time held by it and constituting a part of the Trust Fund, without
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previous application to, or subsequent ratification of, any court, tribunal or commission, or any federal
or state governmental agency, in accordance with the following powers:
(a) With regard to its investments, the Trustees may invest and reinvest any and all
money or property constituting the Trust Fund subject to the Uniform Prudent Investor Act,
Article 1.1, of Title 15, C.R.S., in investments, including, but not limited to, obligations of the United
States government and in obligations fully guaranteed as to principal and interest by the United States
government, in state and municipal bonds, in corporate notes, bonds or debentures, convertible or
otherwise, in railroad equipment trust certificates, in real property and in loans secured by first
mortgages or deeds of trust on real property, in participation guarantee agreements with life insurance
companies, in real estate limited partnerships, or limited liability companies, and in other types of
investment agreements, and the foregoing investments may be made without limitation as to the
percentage of the book value of the assets of the retirement fund so invested. Investments may also be
made in either common or preferred corporate stocks.
(b) The Trustees, in the matter of the investment of the Trust Fund, shall be held
harmless in every respect in exercising its discretion as to how much of the Trust Fund shall remain
uninvested and in cash temporarily awaiting investment or for the expected cash distributions out of
the Trust Fund in accordance with the provisions of this Plan.
(c) The Trustees may cause any part of the money or other property of the Trust to
be commingled with the money or property of trusts created by others causing such assets to be
invested as part of a pooled pension and profit sharing fund. In addition, any portion of the Trust
assets may be invested in any other collective investment fund approved by the Trustees as an
investment option, the terms of such collective investment trust shall be incorporated as part of this
Plan and Trust upon approval of the Trustees.
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(d) The Trustees from time to time shall determine the immediate and long-term
financial requirements of the Plan and on the basis of such determination, establish a policy and
method of funding which will enable the Trustees or the investment manager or managers, if any, to
coordinate the investment policies of the Plan's funds with the objectives and financial needs of the
Plan.
(e) The Trustees may delegate its investment responsibilities to an Investment
Manager pursuant to Section 7.5 or permit Participants to direct the investment of their Aggregate
Accounts pursuant to Section 7.2.
20.4 Further Powers of the Trustees: The Trustees shall have all powers necessary or
advisable to carry out the provisions of this Plan and Trust Agreement and all inherent, implied and
statutory powers now or hereafter provided by law, including specifically the power to do any of the
following:
(a) To cause any securities or other property to be registered and held in its name as
Trustees, or in the name of one or more of its nominees, without disclosing the fiduciary capacity, or to
keep the same in unregistered form payable to bearer.
(b) To sell, grant options to sell, exchange, pledge, encumber, mortgage, deed in
trust, or use any other form of hypothecation, or otherwise dispose of the whole or any part of the Trust
Fund on such terms and for such property or cash, or part cash and credit, as it may deem best and it
may retain, hold, maintain or continue any securities or investments which it may hold as part of the
Trust Fund for such length of time as it may deem advisable, and generally, in all respects, the Trustees
may do all things and exercise each and every right, power and privilege in connection with and in
relation to the Trust Fund as could be done, exercised or executed by an individual holding and owning
said property in absolute and unconditional ownership.
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(c) To abandon, compromise, contest and arbitrate claims and demands; to institute,
compromise and defend actions at law (but without obligation to do so); as the Trustees shall deem
advisable; all at the risk and expense of the Trust Fund.
(d) To borrow money for this Trust upon such terms and conditions as the Trustees
shall deem advisable, and to secure the repayment thereof by the mortgage or pledge of any assets of
the Trust Fund.
(e) To vote in person or by proxy any shares of stock or rights held in the Trust
Fund; to participate in reorganization, liquidation or dissolution of any corporation, the securities of
which are held in the Trust Fund and to exchange securities or other property in connection therewith.
(f) To pay any amount due on any loan or advance made to the Trust Fund, all taxes
of any nature levied, assessed or imposed upon the Trust Fund, and all reasonable expenses and
attorney fees necessarily incurred by the Trustees with respect to any of the foregoing matters.
(g) To defend any suit or legal proceedings against the Trust and the Trustees may
sue or bring legal proceedings against any party or parties, compromise, submit to arbitration, or settle
any suit or legal proceeding, claim, debt, damage or undertaking due or owing from or to the Trust
Fund. In the administration of the Fund, the Trustees shall not be obligated to take any action which
would subject them to any expense or liability unless they be first indemnified in an amount and in the
manner satisfactory to the Trustees or to be furnished with funds sufficient, in the sole judgment of the
Trustees, to cover such expenses.
20.5 Investment Manager: To the extent funds held by the Trust are not invested pursuant to
Participant direction as provided in Section 7.2 hereof, the Trustees may appoint one or more
Investment Managers to exercise the power of the Trustees to direct the investment and reinvestment
of the Trust Fund, pursuant to the provisions of Section 7.3 of this Plan and Trust. Such appointment
shall be made in writing and accepted by the Investment Manager, a copy of which shall be delivered
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to the Trustees and may be revoked by the Trustees by written notice delivered to the Investment
Manager. The Investment Manager shall receive such compensation and reimbursement for expenses
as shall be agreed upon from time to time by the Trustees and the Investment Manager which shall be
paid, in whole or in part by the Employer, and any amount thereof not paid by the Employer shall be
paid by the Trustees out of the principal or income of the Trust. The Investment Manager shall
discharge his duties relating to the investment and reinvestment of the Trust Fund in conformity with
Article VII of this Plan and shall be subject to the liabilities therein stated insofar as his duties are
concerned. The Trustees shall not be liable with respect to acts or omissions of the Investment
Manager, or be under an obligation to invest or otherwise manage any assets of the Plan or Trust Fund
which are subject to the management of the Investment Manager, except insofar as they shall be liable
for the breach of co-fiduciaries pursuant to Article IX hereof.
20.6 Claims Procedure: The Trustees shall make all determinations as to the right of any
person to a benefit. Any denial by the Trustees of the claim for benefits under the Plan by a Participant
or Beneficiary shall be stated in writing by the Trustees and delivered or mailed to the Participant or
Beneficiary; and such notice shall set forth the specific reasons for the denial, reference pertinent Plan
provisions, describe any additional information needed and the steps to be taken to submit the claim
for review, all written to the best of the Trustees' ability in a manner that may be understood without
legal or actuarial counsel. Should a Participant or Beneficiary receive no response to his claim for
benefits within 90 days of making the claim, it shall be deemed to be denied and the Participant or
Beneficiary may proceed to have the claim reviewed. The claimant may, within 60 days after
receiving such denial notice, request a repeal of the denial in writing, submit issues and comments, and
may review pertinent documents. The Trustees shall reach a decision as to the claimant's appeal not
later than 60 days after receiving the request for review.
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20.7 Records and Reports: The Trustees shall exercise such authority and responsibility as it
deems appropriate relating to records of Participant's Service, account balances and the percentage of
such account balances which are non-forfeitable under the Plan; and notifications to Participants.
20.8 Other Administrative Powers and Duties: The Trustees shall also have such duties and
powers as may be necessary to discharge its duties hereunder, including, but not by way of limitation,
the following:
(a) To construe and interpret the Plan, decide all questions of eligibility and
determine the amount, manner and time of payment of any benefits hereunder;
(b) To prescribe procedures to be followed by Participants or Beneficiaries filing
applications for benefits;
(c) To prepare and distribute, in such manner as it determines to be appropriate,
information explaining the Plan;
(d) To receive from the Employer and from Participants such information as shall
be necessary for the proper administration of the Plan;
(e) To furnish the Employer, upon request, such annual reports with respect to the
administration of the Plan as are reasonable and appropriate;
(f) To receive, review and keep on file (as they deem convenient or proper) reports
of the financial condition, and of the receipts and disbursements, of the Trust Fund;
(g) To appoint or employ individuals to assist in the administration of the Plan and
any other agents they deem advisable, including legal, investment, custodial, third-party administrators
and actuarial counsel.
The Trustees shall have no power to add to, subtract from or modify any of the terms of
the Plan, or to change or add to any benefits provided by the Plan, or to waive or fail to apply any
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requirements of eligibility for a benefit under the Plan. No member of the Trustees shall act upon his
own application for a benefit under the Plan.
20.9 Rules and Decisions: The Trustees may adopt such rules as it deems necessary,
desirable, or appropriate. All rules and decisions of the Trustees shall be uniformly and consistently
applied to all Participants in similar circumstances. When making a determination or calculation, the
Trustees shall be entitled to rely upon information furnished by a Participant or Beneficiary, the
Employer or the legal counsel of the Employer.
20.10 Benefit Payments: The Trustees shall pay all benefits from the Trust Fund pursuant to
the provisions of the Plan.
20.11 Application and Forms for Benefits: The Trustees may require a Participant to
complete and file with the Trustees an application for a benefit and all other forms approved by the
Trustees and to furnish all pertinent information requested by the Employer. The Trustees may rely
upon all such information so furnished it, including the Participant's current mailing address.
20.12 Indemnification: To the extent allowed by law, the Employer shall indemnify and hold
harmless the Trustees from any and all claims, losses, damages, expenses (including counsel fees
approved by the Trustees), and liabilities (including any amounts paid in settlement with the Trustees'
approval) arising from any act or omission of the Trustees, except when the same is judicially
determined to be due to the gross negligence or willful misconduct of such Trustees.
20.13 Loans to Participants:
(a) General Rules: The Trustees, in accordance with a uniform and nondiscriminatory
policy, may make a loan to any Participant who remains actively employed with the Employer and
who makes a written request for such a loan. The Trustees will promulgate rules and procedures
regarding Participant loans. No loan to a Participant may exceed the Participant's vested Accrued
Benefit. In addition, a loan, when added to the outstanding balance of all other loans to the Participant
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from this and any other qualified Plan maintained by the Employer, may not exceed the lesser of:
(1) $50,000 less the excess of the highest outstanding balance of loans from the Plan during the one-
year period ending on the day before such loan is made over the outstanding balance of loans from the
Plan on the day such loan is made; or (2) the greater of one-half of the value of the Participant's vested
Accrued Benefit as of the last preceding valuation date or $10,000.
(b) Security and Interest: All loans will be adequately secured and will bear a rate of
interest considered reasonable on the date the loan was made. Participant loans will be considered a
Participant-directed investment under Section 7.2 of the Participant requesting the loan and interest
paid on the loan will be allocated to the account of the Participant-borrower.
(c) Term of Loan: Any loan must be repaid in level payments of principal and interest
at least quarterly within five years of the date on which it was made or on the occurrence of any event
that renders the Participant's Account distributable, whichever occurs first. However, any loan verified
by the Trustees as used to acquire any dwelling unit used or to be used within a reasonable time as the
principal residence of the Participant must be repaid within the time prescribed by the Trustees, or
upon distribution of the Participant's Account, whichever occurs first. If a Participant does not repay a
loan within the time prescribed, in addition to enforcing payment through any legal remedy, the
Trustees may deduct the total amount of the loan and any unpaid interest due on it from the
Participant's Account when the Account becomes distributable under the Plan.
20.14 Payment of Expenses and Fees: The expenses of administration of the Trust incurred
by the Trustees, including legal counsel and consulting fees and other charges, shall be paid by the
Employer and if not paid by the Employer, then from the Trust Fund. The Trustees shall receive in
addition to all their expenses, such compensation that may be agreed upon from time to time by the
Employer and the Trustees. However, if any Trustee is already receiving compensation from the
Employer, as a full-time Employee they shall not also receive compensation as a member of the
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Trustees. If and to the extent that the Employer does not pay such compensation or expense, it shall be
paid from the Trust Fund.
20.15 Protection of the Trustees: The Trustees shall not incur any liability by reason of taking
any action indicated by this instrument to be within the scope of the authority of an Investment
Manager appointed by the Trustees in accordance with any written instrument purporting to be signed
by such person or persons authorized to sign for the Investment Manager, or in reliance upon a
certified copy of a resolution of the Trustees, any of which the Trustees, in good faith, believe to be
genuine. The Trustees may consult with counsel, who may be counsel for the Employer, in respect to
any of its duties or obligations hereunder and shall be fully protected in acting or refraining from
acting in accordance with the advice of such counsel.
The Trustees shall incur no liability for any loss to or depreciation in value of the Trust
Fund or for any act done or omitted to be done in the administration of the Trust, except for breach of
its fiduciary duty as set forth in this instrument. The Trustees shall be indemnified and saved harmless
by the Employer from and against any and all liability arising from breach of its fiduciary duty, as
provided in Section 7.12, including all expenses reasonably incurred in its defense, in case the
Employer fails to provide such defense.
20.16 Accounts of the Trustees: The Trustees shall maintain accurate records and accounts of
all transactions hereunder, which shall be available at all reasonable times for inspection or audit by
any person or persons designated by the Employer. The Trustees at the direction of the Employer shall
submit to the auditors for the Employer such valuations, reports or other information as they may
reasonably require. As of December 31st of each fiscal Year (i.e., the Valuation Date) the Trustees
shall value the Trust Fund at its fair market value. The Trustees shall furnish a copy of such valuation
to the Employer as soon as possible. Any valuation by the Trustees shall be conclusive and binding on
any persons having an interest hereunder.
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ARTICLE XXI. TRUSTEES
21.1 Trustees: The Trustees shall be made up of four (4) members composed initially as
follows: two (2) members appointed by the Employer and two (2) members who are Employees that
are duly elected by the Participants to be Trustees of the Plan. The Trustees shall serve initial terms of
office as follows: two (2) Employer members and one (1) Employee member shall each serve a term
of three (3) years and one (1) Employee member shall serve a term of two (2) years. Successors shall
each serve a term of three (3) years and shall become Trustees in the following manner: the Employer
shall appoint successors to its member positions and successor Employee members shall be elected by
a plurality vote of active Participants. The Trustees shall make all decisions in a non-discriminatory
manner.
An Employee member of the Trustees may resign at any time upon giving written
notice thereof by registered or certified mail, hand delivery, or by telegram or telefax to the Employer.
Upon termination of employment of an Employee representative member of the Trustees, such person's
membership on the Trustees shall terminate and a successor shall be appointed in accordance with this
Section 8.1 to fill the remaining unexpired term of such Trustee. Such resignation shall become
effective forthwith upon the receipt of such written
notice by the Employer. Each successor Trustee appointed as provided in Section 8.1 shall upon
succeeding as a Trustee be vested with all of the rights, powers and discretions herein vested in and
imposed upon the Trustees. Upon the removal, resignation or expiration of the term of any Trustee, he
shall cause to be delivered to the Trustees any Trust property or records then in his possession. No
successor Trustee shall have any duty to examine the accounts or doings of his predecessors. Any
successor Trustee shall be responsible only for the money and property known to him to comprise the
principal and income of the Fund and shall in no way be liable or responsible for anything done or
omitted to have been done by his predecessors.
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21.2 Use of Corporate Trustee: At any time and from time to time the Trustees may appoint,
as Corporate Trustee, a bank or trust company located in the United States which has capital and
surplus aggregating not less than $50,000,000.00, as shown by its last published statement. The
Trustees may delegate to the Corporate Trustee (i) the power to hold all or any part of the Trust Fund
as sole trustee of a trust separate from the Trust created by this Agreement (and not as agent of the
Trustees or as Co-Trustee hereunder with the Trustees), (ii) the power to invest and reinvest the Trust
Fund in the Corporate Trustee's sole discretion, and (iii) such other duties and powers as the Trustees
may deem advisable. The Trustees may enter into and execute a trust agreement with the Corporate
Trustee, which agreement shall contain such provisions as the Trustees may deem advisable. The
Corporate Trustee shall have no obligations under this Agreement or under the Plan and its powers and
duties shall be limited to those set forth in the agreement between it and the Trustees. Upon execution
of an agreement with the Corporate Trustee, the Trustees may transfer and convey to the Corporate
Trustee any part or all of the assets of the Trust Fund acceptable to the Corporate Trustee, and
thereupon, the Trustees shall be forever released and discharged from any responsibility or liability
with respect to the assets so transferred as to any period subsequent to such transfer and with respect to
the investment and reinvestment thereof by the Corporate Trustee during the time the Trust Fund is in
the hands of the Corporate Trustee. Notwithstanding such transfer, the Trustees shall continue to carry
out its administrative functions under the Plan in accordance with the provisions of the Plan and Trust
Agreement.
Any Corporate Trustee appointed as provided in this section may be removed at any
time, with or without cause, by majority vote of the Trustees and upon written notice thereof being
furnished to such Corporate Trustee as provided by the terms of the Corporate Trustee Agreement
previously entered into by the Trustees with such Corporate Trustee. If and when so removed, such
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Corporate Trustee shall cause to be transferred to the Trustees any and all Trust property, assets and
records then in its possession.
21.3 Officers: The officers of the Board of Trustees shall be selected annually at the first
regularly-called meeting in each fiscal year by the Trustees from among themselves and shall serve
until their successors have been selected and qualified. The officers shall include a Chairman and
Secretary.
21.4 Officer Responsibilities: The Chairman shall be responsible for the conduct of the
meeting. The Secretary shall keep minutes or records of all meetings, proceedings and acts of the
Trustees and shall make these available to all Trustees. The Chairman and the Secretary shall jointly
execute written documents and instruments authorized by the Trustees.
21.5 Annual Meeting: An annual meeting of the Trustees shall be held for the purpose of
selecting officers for the ensuing year. The date and place of the annual and regular meetings shall be
fixed by Resolution of the Trustees. Special meetings may be called by the Chairman or Secretary or
any three (3) other Trustees by giving to each Trustee at least ten (10) days' written notice of time and
place of such meeting; or may be held without notice if all Trustees consent in writing, or if the
Trustees in attendance constitute a quorum and they agree to waive notice by their attendance.
Whenever any notice is required to be given to any Trustee hereunder, a waiver thereof
in writing, signed at any time, whether before or after the time of meeting, by the Trustees entitled to
such notice, shall be deemed equivalent to the giving of such notice. The attendance of a Trustee at a
meeting shall constitute a waiver of notice of such a meeting, except where a Trustee attends a meeting
and objects prior to the first order of business to the transaction of any business upon the ground that
the meeting was not lawfully called or convened.
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21.6 Quorum: Three (3) Trustees, at least one representing the Employer and one
representing the Employees, present in person shall constitute a quorum for the transaction of business
at any meeting.
21.7 Majority Vote: All decisions of the Trustees shall be made by majority vote of the
Trustees present at the meeting at which such vote is taken.
ARTICLE XXII. FIDUCIARIES
22.1 Fiduciaries: The Fiduciaries shall have only those specific powers, duties,
responsibilities and obligations as are specifically given them under this Plan or the Trust. In general,
the Employer shall have the responsibility for making the contributions provided for under Section 4.1.
The Trustees shall have the sole responsibility for the administration of this Plan, which responsibility
is specifically described in this Plan and Trust. The Trustees shall have the sole responsibility for the
administration of the Trust and the management of the assets held under the Trust. Each Fiduciary
warrants that any directions given, information furnished, or action taken by it shall be in accordance
with the provisions of the Plan and Trust authorizing or providing for such direction, information or
action. Furthermore, each Fiduciary may rely upon any such direction, information or action of another
Fiduciary as being proper under this Plan and Trust, and is not required under this Plan and Trust to
inquire into the propriety of any such direction, information or action. It is intended under this Plan
and Trust that each Fiduciary shall be responsible for the proper exercise of its own powers, duties,
responsibilities and obligations under this Plan and Trust and shall not be responsible for any act or
failure to act of another Fiduciary. No Fiduciary guarantees the Trust Fund in any manner against
investment loss or depreciation in asset value.
The following will cause a person to be classified as a "Fiduciary" for purposes of this
Plan and Trust: (1) Exercise of any discretionary authority or discretionary control respecting the
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management or disposition of Plan or Trust assets, (2) rendering any investment advice for a fee or
other compensation, or (3) exercise of any discretionary authority or responsibility for Plan or Trust
administration.
22.2 General Fiduciary Duties: All Fiduciaries must discharge their duties solely in the
interest of the Employees eligible to participate and Beneficiaries of the Plan. In addition, Fiduciaries
must act exclusively for the purpose of providing benefits to Employees eligible to participate and
Beneficiaries and defraying reasonable expenses of the Plan. They must carry out their duties with the
care, skill, prudence and diligence which a prudent man acting in a like capacity would use under
conditions prevailing at the time. To the extent funds held by the Trust are not invested pursuant to
Participant direction as provided in Section 7.2 hereof, investments of the Plan shall be diversified so
that the risk of loss will be minimized unless this clearly is not prudent under the circumstances.
However, investment in pooled funds will not violate the diversification rule if the Fund itself is
sufficiently diversified.
22.3 Bonding and Insurance: The Trustees, any Investment Manager appointed pursuant to
Section 7.5, and anyone acting as a Fiduciary as described in this Article IX, may be bonded. The
Employer shall obtain Errors and Omissions Insurance in a minimum amount of $1,000,000 or such
higher amount that they deem advisable to protect the Trust Fund. However, if the Employer does not
provide the appropriate amount of insurance, the Trustees may obtain Errors and Omissions Insurance
for such amount as they deem advisable to protect the Trust Fund. Such insurance and bond premiums
and fees may be paid as an expense of the Trust pursuant to Section 7.14.
22.4 Delegation of Authority: The Trustees shall have the power to delegate specific
fiduciary responsibilities with respect to the control and management of the assets of the Trust and
with respect to the administration of the Plan and Trust by a written agreement between the Trustees
and any such designated person or entity.
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ARTICLE XXIII. MISCELLANEOUS
23.1 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 any Employee to be
continued in the employment of the Employer, or as a limitation of the right of the Employer to
discharge any of its Employees.
23.2 Rights to Trust Assets: No Employee or Beneficiary shall have any right to, or interest
in, any assets of the Trust Fund upon termination of his 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 out of the assets of the Trust Fund. All payments of benefits as provided for in this
Plan shall be made solely out of the assets of the Trust Fund and none of the Fiduciaries shall be liable
therefor in any manner.
23.3 Nonalienation of Benefits: Except for assignments for child support purposes as
provided for in sections 14-10-118(1) and 14-14-107, C.R.S., as they existed prior to July 1, 1996, for
income assignments for child support purposes pursuant to section 14-14-111.5, C.R.S., for writs of
garnishment that are the result of a judgment taken for arrearages for child support or for child support
debt, and for payments made in compliance with a properly executed court order approving a written
agreement entered into pursuant to section 14-10-113(6), C.R.S., 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 Fund shall not in any manner be
liable for, or subject to, the debts, contracts, liabilities, engagements or torts of any person entitled to
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benefits hereunder. The Trust Fund shall be held and distributed for the purpose of this article and for
no other purpose whatsoever.
23.4 Payments to Minors or Persons of Unsound Mind: If any person entitled to receive any
payment hereunder is a minor, or a person of unsound mind, whether formally adjudicated so or not,
such payment shall be made to or for the benefit of such minor or person of unsound mind in any of
the following ways, as the Trustees, in its sole discretion, shall determine: (a) to the legal
representative of such person; (b) directly to such person; (c) to some near relative of such person;
(d) in such other manner as the Trustees may deem appropriate under the circumstances. The Trustees
shall not be required to see to the proper application of any such payment made to any person pursuant
to the provisions of this Section.
23.5 Disposition of Unclaimed Payments: If the Trustees are unable to make any payment
due under the Plan to any person because they cannot ascertain the identity or whereabouts of such
person after making such written or telephonic inquiries as the Trustees, in their sole discretion, deem
reasonable, the Trustees shall suspend all further payments to such person until he makes his identity
or whereabouts known to the Trustees within seven (7) years after such payment was due. The
Trustees shall declare such payment, and all remaining payments due such person, to be forfeited as of
the expiration of such seven-year period.
23.6 Severability of Provisions: If any provision of this Plan is held to be invalid or
unenforceable, such invalidity or unenforceability shall not affect any other provisions, and this Plan
shall be construed and enforced as if such provision had not been included.
23.7 Trust and Plan to be Tax Exempt: The Trust and the Plan are intended to qualify under
Internal Revenue Code Section 401(a) and to be tax exempt under Section 501(a), respectively, and is
a "Governmental Plan" within the meaning of Section 414(d) of the Internal Revenue Code of 1986, as
amended from time to time and Section 3(32) of the Employee Retirement Income Security Act of
SAW\57133\348247.07 Old Hire Restatement
36
1974. The Plan and Trust have been established with the expectation that the Trust will be irrevocable
and in the belief that the Plan and Trust will be approved by the Internal Revenue Service, as meeting
the requirements of the Internal Revenue Code of 1986 and the Regulations issued thereunder with
respect to qualified employee benefit plans.
ARTICLE XXIV. AMENDMENT OR TERMINATION OF THE PLAN
24.1 Right and Restrictions: The Employer reserves the right, with the approval of at least
sixty-five percent (65%) of the total votes cast by actively-employed eligible Employees and all former
employees who are entitled to a benefit from the Plan, to amend (retroactively or otherwise) or
terminate the Plan, in whole or in part, or to discontinue contributions thereunder, provided that no
amendment shall have the effect of (1) diverting for the benefit of any persons, other than Participants
or their Beneficiaries, amounts attributable to contributions by the Employer, or (2) decreasing the
nonforfeitable percentage or amount in any Participant's Aggregate Account. Notwithstanding the
foregoing, the Employer shall have the right to amend the Plan without the approval of Participants,
solely for the purpose of incorporating minor, technical amendments which are required, from time to
time, by changes in state or federal laws or regulations. On the complete or partial termination of the
Plan or complete discontinuance by the Employer of contributions under the Plan, the Accrued Benefit
of each of the affected Participant's Aggregate Accounts shall be nonforfeitable and shall be distributed
pursuant to Section 6.2.
24.2 Merger or Consolidation of the Plan: In the event of any merger or consolidation of the
Plan with, or transfer of assets or liabilities of the Plan to, any other plan, each Participant shall be
entitled to receive a benefit immediately after such merger, consolidation or transfer (determined as if
such other plan had then terminated) which is equal to or greater than the benefit he would have been
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entitled to receive immediately before such merger, consolidation or transfer (if the Plan had then
terminated).
ARTICLE XXV. GOVERNING LAW
The Trust contained herein shall be deemed executed and governed under the laws of the State
of Colorado. Should any provision of the laws of the State of Colorado be in conflict with the express
powers, duties and responsibilities of the Trustees as set forth in this instrument, in such event the law
shall control. For the convenience of the parties hereto, this Plan and Trust Agreement may be
executed in multiple identical counterparts, each of which is complete in itself and may be introduced
in evidence or used for any other purpose without the production of any other counterpart.
This Plan document is the Restated Poudre Fire Authority Old Hire Money Purchase Pension
Plan and Trust Agreement effective December 24, 2001.
ATTEST: EMPLOYER
POUDRE FIRE AUTHORITY
By:
Its: Its:
TRUSTEES
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38
type and scope?
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