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ORDINANCE NO. 8820
AN ORDINANCE ADOPTING AND ENTERING INTO THE
TRUST AGREEMENT FOR THE COLORADO
FIREFIGHTER HEART AND CIRCULATORY BENEFITS
TRUST AND TAKING OTHER ACTIONS IN CONNECTION
THEREWITH
WHEREAS,under state law, specifically, Part 3 of Article 5 of Title 29, Colorado
Revised Statutes (C.R.S.), an employer as defined therein is required to maintain
certain firefighter heart and circulatory malfunction benefits in accordance with and
subject to the requirements and limitations of said Part 3 (the “Act”); and
WHEREAS,in order to provide such benefits, an employer, which includes the
City is authorized to participate in a multiple employer health trust; and
WHEREAS, the City Council has authority under Article XIV, Section 18(2)(a) of
the Colorado Constitution, and Sections 10-3-903.5, 29-1-201, et seq., and 29-5-302,
C.R.S., as amended, to participate with other employers in a multiple employer
health trust for the provision of such benefits and for related claims handling, risk
management, and other functions and services related to such benefits; and
WHEREAS,the City has reviewed the Trust Agreement for the Colorado
Firefighter Heart and Circulatory Benefits Trust, a copy of which is attached
hereto as Exhibit A, by and through which the Members (as defined therein)
desire to establish a trust (the “Trust”) and provide a benefit plan that provides
firefighter heart and circulatory malfunction benefits consistent with the provisions of
Part 3 of Article 5 of Title 29, C.R.S., as specified in the Colorado Firefighter Heart
and Circulatory Malfunction Benefits Plan (the “Plan”); and
WHEREAS, the Members intend that the Trust, together with the Plan, shall
constitute an irrevocable trust exempt from taxation under Internal Revenue Code
Section 115; and
WHEREAS,the City Council finds that membership and participation in the
Trust and Plan would be in the best interests of the City, its employees and its
taxpayers; and
WHEREAS,the City Council by this enactment desires to adopt and enter into
the Trust Agreement for the Colorado Firefighter Heart and Circulatory Benefits Trust,
and to take other actions in connection therewith.
BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1.
The City Council approves the contract entitled Trust Agreement for the
Colorado Firefighter Heart and Circulatory Benefits Trust, a copy of which is attached
hereto as Exhibit A and incorporated into this Ordinance by this reference (the “Trust
Agreement”).
SECTION 2.
The President of the City Council is hereby authorized to execute and deliver
said Trust Agreement on behalf of the City of Pueblo, a Municipal Corporation, and the
City Clerk shall affix the Seal of the City thereto and attest same.
SECTION 3.
The Director of Human Resources of City is hereby directed to transmit to the
Colorado Firefighter Heart and Circulatory Benefits Trust (the “Trust”), McGriff, Seibels
& Williams Inc., PO Box 1539, Portland, OR 97207-1539, an executed and attested
copies of this Ordinance and such Trust Agreement. The officers and staff are further
directed and authorized to perform any and all acts consistent with the intent of the
Ordinance and Trust Agreement to effectuate the policies and procedures described
therein.
SECTION 4.
City Council designates Marisa Pacheco, Human Resources Director as its initial
Member Representative to the Trust and designates Sam Azad, City Manager as its
initial Alternate Representative to the Trust, such persons having the following
addresses stated below:
Representative Mailing Address:
301 West “B” Street, Pueblo, CO 81003
Alternate Representative Mailing Address:
200 S. Main Street, Pueblo, CO 81003
SECTION 5.
City Council understands that, with the adoption of this Ordinance and subject to
the terms of the Trust Agreement, the City becomes a Member of the Trust, with its
participation to commence effective as of the date determined in accordance with the
Trust Agreement.
SECTION 6.
Due to the time constraints associated with the Act and specifically the January
1, 2015 effective date of such Act, good cause exists for the passage of this Ordinance
as an emergency ordinance pursuant to Section 3-20 of the City Charter.
SECTION 7.
The officers and staff of the City are directed and authorized to perform any and
all acts consistent with the intent of this Resolution and the attached contract/agreement
to effecutate the transactions described thereherein.
SECTION 8.
This Ordinance shall become effective immediately on December 22, 2014.
INTRODUCED: December 22, 2014
BY: Chris Nicoll
PASSED AND APPROVED: December 22, 2014
City Clerk’s Office Item # S-1
BACKGROUND PAPER FOR PROPOSED
EMERGENCYORDINANCE
COUNCIL MEETING DATE:
December 22, 2014
TO: President Stephen G. Nawrocki and Members of City Council
CC: Sam Azad, City Manager
VIA: Gina Dutcher, City Clerk
FROM: Dan Kogovsek, City Attorney
Marisa Pacheco, Director of Human Resources
SUBJECT: AN ORDINANCE ADOPTING AND ENTERING INTO THE TRUST
AGREEMENT FOR THE COLORADO FIREFIGHTER HEART AND
CIRCULATORY BENEFITS TRUST AND TAKING OTHER ACTIONS IN
CONNECTION THEREWITH
SUMMARY:
Attached is an Ordinance adopting and entering into the attached Trust Agreement for the
Colorado Firefighter Heart Circulatory Benefits Trust as required under Part 3, Article 5 of Title
29 Colorado Revised Statutes.
PREVIOUS COUNCIL ACTION:
None.
BACKGROUND:
Effective January 1, 2015, Colorado Senate passed legislation requiring organizations
employing a full-time firefighter continuously for at least five (5) years to provide a defined level
of benefits for certain heart and circulatory malfunctions that are determined to have occurred in
connection with job service. The legislature established a reimbursement fund to allow the
Department of Local Affairs (DOLA) to compensate employers for purchasing this coverage.
The Colorado Firefighter Heart and Circulatory Benefits Trust will secure the coverage for the
City and requires a Trust Agreement and governing body approval via resolution or ordinance in
order to seek reimbursement through DOLA for the insurance premium costs associated with
the program.
FINANCIAL IMPLICATIONS:
The anticipated premium cost for the required coverage under Firefighter Heart and Circulatory
Malfunction Program is approximately $175 per year, per eligible firefighter. Eligible firefighters
under the act are defined as full-time, active employees whose duties are directly involved with
the provision of fire protection services with at least five years of continuous service. The City of
Pueblo currently employs 123 eligible members of the Pueblo Fire Department that meet this
definition. Therefore, the estimated annual cost will be $21,525. The City of Pueblo will submit
this payment to the Colorado Firefighter Heart and Circulatory Benefits Trust to secure the
appropriate coverage and will then file for reimbursement with DOLA for the premium cost. The
upfront cost for the insurance premium will be paid from the Fire Department’s 2015 operating
budget. In the unlikely circumstance that the costs are not completely reimbursed by DOLA, the
City Manager may request an additional appropriation to the Fire Department 2015 budget.
Ultimately, there is no anticipated cost to the City for this program in 2015.
BOARD/COMMISSION RECOMMENDATION:
None.
STAKEHOLDER PROCESS:
Upon passage of this ordinance, the City will notify eligible members of the Pueblo Fire
Department regarding the provision of the benefits coverage for 2015.
ALTERNATIVES:
Provision of benefits under Colorado Revised Statute 29-5-302 is a legal requirement. The
passage of this Ordinance and entering into the Trust Agreement will allow the City to seek
reimbursement for the cost of providing the mandatory benefits outlined in the program. If City
Council denies this Ordinance, the City will still be obligated to provide such benefits but would
forfeit the opportunity for reimbursement through DOLA.
RECOMMENDATION:
Approval of the Ordinance.
Attachments:
Trust Agreement for Colorado Firefighters Heart and Circulatory Benefits
Trust
EXHIBIT A
TRUST AGREEMENT
FOR
COLORADO FIREFIGHTER HEART AND CIRCULATORY
BENEFITS TRUST
TABLE OF CONTENTS
ARTICLE I DEFINITIONS 2
1.1 ADMINISTRATOR
1.2 Au 1THORIZED INVESTMENT 2
1.3 BENEFICIARY
1.4 CODE 2
1.5 CUSTODIAN
1.6 FISCAL YEAR 2
1.7 INVESTMENT COMMITTEE 2
1.8 INVESTMENT FUND 2
1.9 INVESTMENT MANAGER 2
1.10 MEMBERS OR MEMBER 2
1.11 MEMBER REPRESENTATIVE 3
1.12 PARTICIPANT 3
1.13 PLAN 3
1.14 TRUST 3
1.15 TRUST COMMITTEE 3
1.16 TRUST FUND 3
1.17 TRUSTEE 3
ARTICLE II ESTABLISHMENT OF THE TRUST 3
2.1 TRUST ESTABLISHED. • 3
2.2 LIMIT OF INTEREST-IMPOSSIBILITY OF DIVERSION. 3
2.3 TRUST COMM mrEE'S ACCEPTANCE 3
ARTICLE III TRUSTEES AND SUCCESSOR TRUSTEES 3
3.1 TRUSTEES. 3
3.2 SUCCESSOR TRUSTEES. 4
3.3 COMPENSATION. 5
3.4 CI IAIR AND OFFICERS;SUB-COMMITTEES 5
3.5 MEETINGS. 5
3.6 PROXY, 5
3.7 No DELEGATES.
3.8
3.8 QUORUM AND VOTING. 5
3.9 ACTION WITHOUT A MEETING 6
3.10 CONE!,ICTS OF INTEREST. 6
3.1 I OFFICE LOCATION AND MEETING PLACE. 6
3.12 AGENT FOR SERVICE OF LEGAL PROCESS. 6
3.13 RULES AND REGULATIONS 7
ARTICLE IV DUTIES OF TRUST COMMITTEE 7
4.1 DIMES 7
(a) Receipt of Contributions 7
(6) Management of Funds.
(e) Payments. 7
(d) Appointment of Administrator. 7
(e) Appointments of Investment Committee. 7
ARTICLE V INVESTMENT OF TRUST ASSETS 8
5.1 GENERAL INVESTMENT POWER/INVESTMENT FUNDS 8
(a) Authority47nvestment Committee. 8
(b) Investment Funds 8
(c) Funding Policy. 8
5.2 INVESTMENT MANAGERS 8
(a) Appointment. 8
(b) Contractual Arrangement 9
(c) Trust Committee's Duties. 9
(d) Failure to Direct 9
(e) Termination of Appointment 9
5.3 MANNER AND EFFECT OF DIRECTIONS 9
(a) Delegation of Authority to Custodian 9
5.4 AUTHORIZATION OF DESIGNEE(S) 10
ARTICLE VI POWERS OF TRUST COMMITTEE 10
6.1 GENERAL AUTHORITY. • 10
6.2 SPECIFIC POWERS. 10
(a) Purchase of Property. 10
(h) Disposition of Property. 10
(c) Retention of Cash. 10
(d) Exercise of Owner's Rights. 10
(e) Registration of Investments. 1 I
(9 Borrowing. 11
(g) Purchase of Contracts 11
(h) Execution of Instruments. 11
(i) Settlement of Claims and Debts 11
(j) Establish Rules and Policies. 11
(k) Trustee Insurance1 1
(1) Risk Management. 11
(m) Delegation 12
(n) Employment of Agents,Advisers and Counsel. 12
(o) Appointment of Custodian . - 12
(p) Power to do any.Necessary Act 12
ARTICLE VII CONTRIBUTIONS TO THE TRUST FUND 12
7.1 MEMBER CONTRIBUTIONS 12
7.2 CONTRIBUTION RATE STRUCTURE 12
7.3 FAILURE TO MAKE CONTRIBUTIONS 13
7.4 TABOR COMPLIANCE. 13
7.5 STATE FUNDING 13
7.6 REPORTS. 14
ARTICLE VIII PARTICIPATION AND WITHDRAWAL OF MEMBERS 14
8.1 PARTICIPATION IN TRUSTBY MEMBERS. 14
8.2 WITHDRAWAL BY MEMBER. 14
8.3 SUCCESSORS AND ASSIGNS 15
8.4 POWERS OF THE MEMBERS. 15
8.5 MEETINGS OF THE MEMBERS 15
8.6 MEMBER OBLIGATIONS 16
ARTICLE IX ADMINISTRATION 16
9.1 ACCOUNTING. 16
(a) Books and Records. 16
(b) Accounting 16
(c) Release. 16
(d) Valuations 17
(e) Reliance on Administrator 17
9.2 EXPENSES. 17
ARTICLE X AMENDMENT OF TRUST;TERMINATION OF PLAN 17
10.1 AMENDMENT OF TRUST. 17
(n) Right to Amend 18
(b) Exclusive Benefit. 18
10.2 TERMINATION OF PLAN. 18
10.3 FINAL ACCOUNTING. 18
ARTICLE XI MISCELLANEOUS 18
1 1.1 NONALIENATION OF BENEFITS. 18
11.2 BENEFIT. 19
11.3 EFFECT OF PLAN. 19
11.4 DISPUTE RESOLUTION 19
11.5 ENTIRE AGREEMENT. 20
11.6 APPROVAL OF'"THE.MEMBERS 20
11.7 LIABILITY FOR PREDECESSOR OR SUCCESSOR 20
11.8 LIABILITY FOR ACTS OF OTHERS. 20
11.9 GOVERNMENTAL IMMUNITY. 20
11.10 CONTROLLING LAW. 20
1 1.1 1 EFFECTIVE DATE 20
11.12 EXECUTION IN COUNTERPARTS. 20
TRUST AGREEMENT
THIS TRUST AGREEMENT (this "Agreement") is entered into on this day of
, 2014 (the "Effective Date") by and between the undersigned Colorado
governmental entities (who, together with and any other Colorado governmental entities that
becomes a participating Member under this Trust, are collectively the "Members") and the
undersigned trustees constituting the "Trust Committee" for the Trust, as defined herein (the
"Trust Committee").
WITNESSETH:
WHEREAS, the Members are exempt from federal income tax under the Internal
Revenue Code of 1986, as amended, as a state or territory of the United States, or any political
subdivision, municipality or agency thereof, or an agency of such political subdivision or
municipality (including any corporation owned or controlled by anystate or territory of the
United States or by any political subdivision, municipality, or agency); and
WHEREAS, the Members desire by and through this Agreement to provide a benefit
plan that provides heart and circulatory malfunction benefits consistent with the provisions of
Part 3 of Article 5 of Title 29, Colorado Revised Statutes (C.R.S.), as specified in the Colorado
Firefighter Heart and Circulatory Malfunction Benefits Plan (the "Plan"); and
WHEREAS, the Members desire for the Trust to accept funds that shall from time to time
be paid over to the Trust Committee in accordance with the terms of this Agreement, together
with the earnings and profits thereon, if any, and to hold the funds in trust (the "Trust") and to
make disbursements from the Trust in accordance with the provisions of this Agreement and the
Plan; and
WHEREAS, the Members desire to appoint the Trust Committee as a trustee to hold and
administer the assets of the Plan in accordance with this Agreement; and
WHEREAS, the Trust Committee has agreed to serve as trustee of the trust established
under this Agreement; and
WHEREAS, the Members intend that the Trust hereby established, together with the Plan,
shall constitute an irrevocable trust exempt from taxation under Internal Revenue Code Section
115; and
WHEREAS,the Members intend that the Trust hereby established, together with the Plan,
shall constitute a multiple employer health trust for the purpose of Part 3 of Article 5 of Title 29,
C.R.S.;
NOW, THEREFORE, the Members and the Trust Committee hereby mutually covenant
and agree as follows:
1 CFH'IRUST IGA 11/2014 R5
ARTICLE I
DEFINITIONS
The following words and phrases, when used herein with an initial capital letter, shall have the
meanings set forth below unless a different meaning plainly is required by the context. Any
reference to a section number shall refer to a section of this Agreement unless otherwise
specified.
1.1 Administrator means the person, committee or entity appointed by the Trust Committee
to serve as plan administrator of the Plan. The Administrator shall be retained by the
Trust Committee and shall administer the Plan pursuant to an administrative services
agreement entered into between the Administrator and the Trust Committee.
1.2 Authorized Investment means and is limited to those investments that are defined as
permissible for investment of public funds in Section 24-75-601 et seq. C.R.S., as in
effect from time to time.
1.3 Beneficiary means any person designated under the terms of the Plan to receive benefits
payable upon the death of a Participant.
1.4 Code means the Internal Revenue Code of 1986, as amended.
1.5 Custodian means Wells Fargo Bank, N.A., which shall serve as custodian for the Trust
Fund. To the extent any assets are held by any custodian other than Wells Fargo Bank,
N.A., such party shall also be considered a Custodian for the Trust.
1.6 Fiscal Year means the accounting year of the Trust, which shall commence on January 1
and end on December 31 of each year, except that the first year shall commence on the
Effective Date and shall end on the immediately following December 3 I.
1.7 Investment Committee means the person, committee or entity appointed in accordance
with the terms of the Trust to make and effect investment decisions under the Plan and
Trust. Unless the Trust Committee appoints an Investment Committee, the Trust
Committee shall be deemed to be the Investment Committee.
1.8 Investment Fund means any of the separate funds established by the Investment
Committee for the investment of Plan assets.
1.9 Investment Manager means any person, corporation or other organization or association
appointed by the Trust Committee pursuant to the terms of Section 4.3 to manage,
acquire or dispose of the assets of an Investment Fund.
1.10 Members or Member means those governmental employers listed on Exhibit A and any
other governmental employer that becomes a participating Member under this Trust
pursuant to Article VIII, below.
2 CFI rutusT IGA 11/2014 R5
1.11 Member Representative means that person who has been designated in writing by a
Member as its representative to the Trust.
1.12 Participant means an employee or former employee of the Member.
I.13 Plan means the Colorado Firefighter Heart and Circulatory Benefits Plan set forth in Part
3 of Article 5 of Title 29, Colorado Revised Statutes, and in the Plan Summary of
Benefits as such Plan may be amended from time to time.
1.14 Trust means the trust established by this Agreement.
1.15 Trust Committee means the Trust Committee appointed pursuant to Section 3.1 of this
Trust Agreement, acting as a group or body.
1.16 Trust Fund means the total amount of cash and other property held in the Trust under
this Agreement.
1.17 Trustee means the Trust Committee members and their successors as provided by this
Agreement.
ARTICLE II
• ESTABLISHMENT OF THE TRUST
2.1 Trust Established. The Members hereby establish with the Trust Committee, as a
funding medium for the Plan, a Trust consisting of the Trust Fund and such earnings,
profits, increments, additions and appreciation thereto and thereon as may accrue from
time to time.
2.2 Limit of Interest - Impossibility of Diversion. It shall be impossible at any time for any
part of the Trust to be used for or diverted to purposes other than for the exclusive benefit
of the Participants and Beneficiaries covered under the Plan, except that the payment of
taxes and administration expenses may be made from Trust funds as hereinafter provided.
Funds of the Trust may not be transferred to any other account or fund of a Member.
2.3 Trust Committee's Acceptance. The Trust Committee accepts the Trust hereby created
and agrees to perform the duties hereby required of the Trust Committee.
ARTICLE III
TRUSTEES AND SUCCESSOR TRUSTEES
3.1 Trustees. The Trust shall be administered by the Trust Committee. The Trust Committee
shall be comprised of seven (7) individual Trustees; provided, however, that the Trust
Committee shall be deemed duly constituted and may commence operations of the Trust upon
seating of and execution of this Agreement by four (4) initial Trustees. Each Trustee must be a
Participant and current employee of a Member, except as provided below. Trustees shall be
3 cFH'l'RusT IGA 11/2014 R5
appointed by the Board of Directors of the Colorado State Fire Chiefs ("CSFC Board") from
among the following:
(a) One Trustee who is a Member Representative from a fire district or fire authority
serving an area having less than thirty thousand (30,000) in population;
(b) One Trustee who is a Member Representative from a fire district or fire authority
serving an area having more than thirty thousand(30,000) in population;
(c) One Trustee who is a Member Representative from a municipality having less than
thirty thousand (30,000) in population;
(d) One Trustee who is a Member Representative from a municipality having more than
thirty thousand (30,000) in population;
(e) One Trustee who is a Participant and officer of the Colorado Professional Firefighters
Association ("CPFF"), who is designated for appointment by CPFF; and
(1) Two Trustees who are Member Representatives from two other Members of any size
or type, who are elected or appointed officials or employees of the Member and arc
not firefighters eligible for participation in the Plan.
Nominations for Trustees from the Members and CPFF shall he made by elected governing body
of the Member (i.e., district board of directors, city council, CPFF Board of Directors) and be
submitted to the CSFC Board at such time as the CSFC. Boardmay provide. Terms of the
Trustees shall be two-year, overlapping terms or until their successors have been appointed,
except that among the initial Trustees, four of them shall serve an initial term of two years and
three of them shall serve an initial term of one year as set for below so as to establish the
staggering of terms. The term shall begin on a January 1, and end at midnight on a December
31, except that the initial undersigned Trustees' terms shall begin upon the formation of the
Trust.
A vacancy shall occur on the Trust Committee when a Trustee (1) submits a written resignation
to the Trust Committee; (2) dies; (3) ceases to he a Participant; (4) ceases to be a Member
Representative, except in the case of the CPFF Trustee to whom such requirement (4) does not
apply; (5) fails to attend three consecutive regular meetings of the Trust Committee without the
Committee having entered upon the record its proceedings an approval for an additional absence
or absences, except that such additional absence or absences shall be excused for temporary
mental or physical disability or illness; or(6) is convicted of a felony. Any vacancy on the Trust
Committee shall be filled by appointment by the CSFC Board for the unexpired portion of the
term. Upon appointment and written acceptance thereof, a successor Trustee shall have all the
title, rights, powers and privileges and duties conferred or imposed upon the initial or
predecessor Trustee.
3.2 Successor Trustees. No successor Trustee need examine the accounts, records and acts
of any previous Trustee of any allocation of the Trust assets, nor shall such successor Trustee be
4 CrIITRUS"I'[GA 11/2014 R5
responsible for any act or omission to act on the part of any previous Trustee. All Trustees and
their successors from time to time acting under this Agreement shall have all the rights, powers
and duties of the initial Trustees named in this Agreement, unless this Agreement is amended to
provide otherwise.
3.3 Compensation. The Trustees shall receive no compensation for their services rendered
under this Agreement other than any compensation as an employee of a particular Member. The
Trust Committee may adopt policies to reimburse Trustees for actual meeting expenses and
attendance at the Trust Committee meetings and other properly incurred expenses on Trust
matters.
3.4 Chair and Officers; Sub-Committees. The officers of the Trust Committee shall be the
chair, vice chair and secretary. The officers shall be appointed by the Trust Committee from
among its members. Appointment of officers shall occur at the first meeting of the Trustee
Committee each year. The Trust Committee may establish sub-committees necessary or
appropriate to the exercise of its powers.
3.5 Meetings. The Trust Committee shall determine the time and place of its regular
meetings. Special meetings of the Trust Committee may be called by the chair or by three (3)
Trustees. The Trustees shall be provided with at least ten (10) days prior written notice
designating the time, place and agenda of a regular meeting and three (3) days prior written
notice designating the time, place and agenda of any special meeting. The manner of giving
notice of meetings may include, without limitation, service by electronic mail to the Trustee's e-
mail address. Regular and special meetings of the Trust Committee may be held by telephone or
electronic (internet-based) conference call. Any meeting at which all 'Trustees are present in
person, or concerning which all Trustees have waived notice in writing, shall be a valid meeting
without the requirement to provide any notice.
3.6 Proxy. Any Trustee may duly authorize in writing another Trustee to cast a vote on one
(1) or more specific matters to be voted on at a meeting, on behalf of such Trustee. Any such
written authorization must specify the matter or matters and be given for a specific meeting and
may not carry over to subsequent meetings.
3.7 No Delegates. A Trustee and/or the Trustee's Member Representative may not appoint a
delegate to serve in his or her place.
3.8 Quorum and Voting.
(a) To constitute a quorum at any regular or special meeting of the Trust Committee
and for any action to be valid at such meeting, there must be present in person or
by proxy at least four(4) of the seven (7) Trustees.
(b) Valid actions at meetings at which a quorum is present require the affirmative
vote of a simple majority of those Trustees present and voting, except where an
absolute majority is expressly required. Each Trustee shall cast his or her vote on
each matter upon which action is taken, except where abstention from voting is
5 CFIITRIJST IGA 11/2014 R5
required because of conflict of interest.
(c) To approve the following items, an absolute majority vote (as defined below) is
required:
(1) Annual budget;
(2) Incurring any debt other than liabilities in the ordinary course of business;
and
(3) Settling any litigation involving the Plan or Trust.
An absolute majority vote is the affirmative vote of at least four(4) Trustees.
3.9 Action without a Meeting. Any action that may be taken at a meeting of the Trust
Committee may be taken without a meeting upon the written consent of a sufficient number of
the Trustees otherwise required to approve such action at a meeting and shall be effective on the
date of the last consent, unless two (2) or more Trustees object to taking the action without a
meeting. A copy of such written consent, signed by the Trustees, shall be provided within ten
(10) days of the effective date of the consent to each Trustee. Consent may be signified by a
signature of the Trustee on a written consent or by an electronic means, such as an affirmative
email response to a request for confirmation of favorable action on a matter, approval of a
specific resolution, etc.
3.10 Conflicts of Interest. Trustees should avoid the appearance of impropriety. A Trustee
shall exercise care that the Trustee's independent judgment in the discharge of Trust Committee
responsibilities is not impaired as a result of conflicts between the interests of the Trust and the
'Trustee's own financial interests or personal interests, or the financial interests or personal
interests of the members of the Trustee's family or associates. A Trustee shall not vote or decide
upon any matter relating solely to himself or herself or vote in any case in which his or her
individual right or claim to any benefit under the Plan is particularly involved or in which he or
she otherwise has a conflict of interest. In the event that a Trustee believes that he or she has a
conflict of interest, the Trustee shall disclose the conflict to the Trust Committee and shall refrain
from participating in the matter to which the conflict relates. The minutes of the meeting where
the disclosure is made shall reflect the disclosure and the fact of the Trustee having abstained
from participation in the matter. A Trustee shall not use confidential information acquired in the
course of the performance of Trust Committee responsibilities to further that Trustee's own
financial interests or personal interests, or the financial interests or personal interests of the
members of the Trustee's family or associates.
3.11 Office Location and Meeting Place. All meetings of the Trust Committee shall be held
at a place designated at least annually by the Trust Committee, or the chair, if the Trust
Committee is unable to reach an agreement regarding a meeting location. The Trust shall have its
principal office at 433 S. Allison Parkway, Lakewood, CO 80226.
3.12 Agent for Service of Legal Process. The designated agent for service of legal process
6 CFH'l'RUST WA 1112014 1t5
shall be Samuel J. Light, Light Kelly, P.C. 101 University Blvd., Suite 210, Denver, Colorado
80206, or any successor agent as the Trust Committee shall designate.
3.13 Rules and Regulations. The Trust Committee shall have the power at any regular or
special meeting to adopt bylaws, rules, regulations and policies for the administration of the
Trust, and for the conduct of the affairs of the Trust Committee. Any bylaws, rules, regulations
and policies of the Trust Committee shall be consistent with the written provisions of the Trust
Agreement, and shall be binding upon all persons dealing with the Trust and upon any and all
persons claiming any benefits under the Plan.
ARTICLE IV
DUTIES OF TRUST COMMITTEE
4.1 Duties. It shall be the duty of the Trust Committee:
(a) Receipt of Contributions. To receive any contributions paid to it under this
Agreement in cash or in other property acceptable to the Trust Committee. The
Trust Committee shall not be responsible for the calculation or collection of any
contribution required to be paid by the Member to the Trust under the Plan, but
shall be responsible only for property actually received by it pursuant to this
Agreement.
(b) Management of Funds. To hold, invest, reinvest, manage and administer
(except as otherwise provided herein) all contributions so received, together with
the income therefrom and any other increment thereon, for the benefit of
Participants and their Beneficiaries in accordance with the terms of this
Agreement.
•
(c) Payments. To direct payments under the Plan; provided, however, that the Trust
Committee may rely upon the directions received from the Administrator, and the
Administrator hereby indemnifies the Trust Committee from any loss, claim,
damage or liability, including legal expenses, that may arise in connection with
the Trust Committee's acting upon such direction.
(d) Appointment of Administrator. To appoint such person, committee or entity as
the Trust Committee shall determine to serve as Administrator of the Plan, and to
contract with the Administrator for provision of its services. The Trust
Committee shall have the power to terminate the appointment of the
Administrator upon written notice with or without cause.
(e) Appointment of Investment Committee. To appoint as the Investment
Committee such person, committee or entity as the Trust Committee shall
determine to make and effect investment decisions under the Plan and Trust;
provided, however, that the Trust Committee may appoint itself as the Investment
Committee.
7 CFIITRUST IGA 11/2014 R5
ARTICLE V
INVESTMENT OF TRUST ASSETS
5.1 General Investment Power/Investment Funds.
(a) Authority of Investment Committee. Except as provided in Sections 5.2 and
5.3, the Investment Committee shall have all authority and responsibility for the
management, disposition and investment of the Trust Fund, and the Trust
Committee shall comply with directions of the Investment Committee. The
Investment Committee shall not issue any directions that are in violation of the
terms of the Plan or this Agreement.
(b) Investment Funds. The Trust may be divided into one or more separate
Investment Funds, the number, makeup and description of which shall be
determined from time to time by the Investment Committee. The "Trust
Committee shall implement, terminate, value, transfer to and from and allocate
the gains, losses and expenses among the Investment Funds in accordance with
the proper directions of the Investment Committee, the Administrator, or their
delegates, and, to the extent applicable under the terms of this Agreement, the
directions of Investment Managers.
(c) Funding Policy. The Trust Committee shall have responsibility for selecting or
establishing and carrying out a funding policy and method, consistent with the
objectives of the Plan. The Trust Committee shall be responsible for the proper
diversification of the Trust Fund, for the prudence of any investment of Trust
assets consistent with State law, for compliance with statutory limitations on the
amount of investment in securities, and for assuring that any such investments
meet the requirements of State law.
5.2 Investment Managers.
(a) Appointment. The Investment Committee may, but shall not be required to,
appoint one or more Investment Managers to manage the assets of all or any one
or more of the Investment Funds. Each such Investment Manager shall be either
(i) registered as an investment adviser under the Investment Advisers Act of 1940;
(ii) a bank, as defined in such Act; or (iii) an insurance company qualified to
perform the services of Investment Manager under the laws of more than one
state. The Investment Committee shall obtain from any Investment Manager so
appointed by it a written statement acknowledging (i) that such Investment
Manager is or on the effective date of its appointment will become a fiduciary
with respect to the Trust assets under its management; (ii) certifying that such
Investment Manager has the power to manage, acquire or dispose of Trust assets
in the manner contemplated by the contract or other written instrument by which
its appointment is or will be effected; and (iii) certifying that it is either an
investment adviser, a bank or an insurance company which is qualified to be
appointed as an Investment Manager under this Agreement.
8 CRITRUS'11GA 11/2014 R5
(b) Contractual Arrangement. The Investment Committee shall enter into a written
contract or agreement with each such Investment Manager in connection with its
appointment as such, and such contract shall be subject to such terms and
conditions and shall grant to the Investment Manager such authority and
responsibilities in the management of the applicable Investment Fund assets as the
Investment Committee deems appropriate under the circumstances. Without
limiting the generality of the foregoing, such contract may establish investment
objectives for the assets of the Investment Fund(s) under the management of the
Investment Manager and may limit the types of assets that may be acquired or
held by such Investment Fund(s).
(c) Trust Committee's Duties. With respect to each Investment Fund the
management of which has been delegated to an Investment Manager, the Trust
Committee shall follow and carry out the instructions of the appointed Investment
Manager with respect to the acquisition, disposition and reinvestment of assets of
such Investment Fund, including instructions relating to the exercise of all
ownership rights in such assets.
(d) Failure to Direct. in the event that an appointed Investment Manager shall fail to
direct the Trust Committee with respect to investment of all or any portion of the
cash held in an Investment Fund under its management, the Trust Committee shall
invest such cash only when and as directed by the Investment Committee.
(e) Termination of Appointment. The Investment Committee shall have the power
to terminate the appointment of an Investment Manager upon written notice with
or without cause. Upon the termination of the appointment of an Investment
Manager, the Investment Committee shall (i) appoint a successor Investment
Manager with respect to the Investment Fund(s) formerly under the management
of the terminated Investment Manager, (ii) direct the Trust Committee to merge or
combine such Investment Fund(s) with other Investment Fund(s) or Trust assets,
or (iii) direct the Trust Committee to invest the assets of such Investment Fund as
the Investment Committee deems appropriate in accordance with the existing
funding policy.
5.3 Manner and Effect of Directions.
(a) Delegation of Authority to Custodian. The Custodian is delegated the authority
and responsibility for receiving and carrying out the directions of the Trust
Committee, the Administrator, the Investment Committee, any Investment
Manager or their designees. With respect to any assets held by a party other than
Trust Committee, the Trust Committee is authorized and directed to delegate to
the Custodian the authority and responsibility for receiving and carrying out the
directions of the Investment Committee, any Investment Manager or their
designees. The Trust Committee is authorized and directed to enter into such
9 CFCITRUS"IIGA 11/2014 R5
agreements with another Custodian as are deemed necessary or appropriate to
effect such delegation.
5.4 Authorization of Designee(s). The Administrator and the investment Committee may
each appoint one or more designees to act on their behalf. If a designee (or designees) is
appointed, the appropriate committee shall furnish the Trust Committee with written
documentation of the appointment and a specimen signature of each designee. The Trust
Committee shall be entitled to rely upon such documentation until the Trust Committee is
otherwise notified in writing.
ARTICLE VI
POWERS OF TRUST COMMITTEE
6.1 General Authority. In accordance with the directions of the Investment Committee and
any Investment Managers as provided in Article V, the Trust Committee shall receive,
hold, manage, convert, sell, exchange, invest, reinvest, disburse and otherwise deal with
the assets of the Trust, including contributions to the Trust and the income and profits
therefrom, without distinction between principal and income and in the manner and for
the uses and purposes set forth in the Plan and as hereinafter provided.
6.2 Specific Powers. In the management of the Trust, the Trust Committee shall have the
following powers in addition to the powers customarily vested in trustees by law and in
no way in derogation thereof; provided, all such powers shall be exercised only upon and
in accordance with the directions of the Investment Committee and, to the extent
applicable, any duly appointed investment Managers:
(a) Purchase of Property. With any cash at any time held by it, to purchase or
subscribe for any authorized investment (as defined in Section 6.3) and to retain
the same in trust.
(b) Disposition of Property. To sell, exchange, transfer or otherwise dispose of any
property at any time held by it.
(c) Retention of Cash. To hold cash without interest in administrative accounts for
contribution and distribution processing in such amounts as may be reasonable
and necessary for the proper operation of the Plan and the Trust.
(d) Exercise of Owner's Rights. The Members acknowledge and agree that the
Trust Committee shall have the right or power to vote proxies appurtenant to
securities that it holds. The Members acknowledge and agree that the Trust
Committee shall have the power to make any review of, or consider the propriety
of, holding or selling any assets held in the Trust Fund in response to any tender
offer, conversion privilege, rights offering, merger, exchange, public offering
and/or any proxy action for any of such assets.
1 0 CFIITRUST IGA 11/2014 R5
(c) Registration of Investments. To cause any stock, bond, other security or other
property held as part of the Trust to be registered in its own name or in the name
of one or more of its nominees; provided, the books and records of the Trust
Committee shall at all times show that all such investments are part of the Trust.
(I) Borrowing. To the extent permitted by State law and at the direction of the
Investment Committee, to borrow or raise money for the purposes of the Trust in
such amounts, and upon such terms and conditions, as determined by the
Investment Committee; and, for any sum so borrowed, to issue its promissory
note as Trust Committee and to secure the repayment thereof by pledging all or
any part of the Trust Fund to the extent permitted by State law; and no person
lending money to the Trust Committee shall be bound to see to the application of
the money lent or to inquire into the validity, expediency or propriety of any such
borrowing.
(g) Purchase of Contracts. To apply for, purchase, hold, transfer, surrender and
exercise all incidents of ownership of any insurance, re-insurance, excess or stop
loss insurance or annuity contract that the Trust Committee determines or the
Investment Committee directs it to purchase or that is necessary or appropriate to
carrying out the purposes of the Plan. The Trust Committee shall endeavor to
obtain stop loss insurance to provide coverage for payment of benefits under the
Plan above specified per claim and aggregate limits, provided such stop loss
coverage can be obtained at a reasonable cost as determined by the Trust
Committee.
(h) Execution of Instruments. To make, execute, acknowledge and deliver any and
all documents of transfer and conveyance and any and all other instruments,
which may be necessary or appropriate to carry out the powers herein granted.
(i) Settlement of Claims and Debts. To settle, compromise or submit to arbitration
any claims, debts or damages due or owing to or from the Trust, to commence or
defend suits or legal or administrative proceedings and to represent the Trust in all
suits and,legal and administrative proceedings.
(j) Establish Rules and Polices. To establish, to the extent consistent with this
Agreement and the Plan, rules and policies necessary or appropriate to the
administration of the Trust or the carrying out of the powers herein granted;
(k) Trustee Insurance. To purchase on behalf of the Trust Committee and the
Investment Committee, trustees' errors and omissions insurance or similar
coverage in such amounts as are recommended by a licensed insurance broker for
benefit plans and a trust of similar size and purpose.
(I) Risk Management. To establish reasonable risk management policies and
procedures.
1 1 CFIITRUSC IGA 11/2014 R5
(m) Delegation. To delegate in writing fiduciary responsibilities or ministerial
powers and duties to such officers, agents, representatives and independent
contractors as determined desirable, provide such delegation does not conflict
with the provisions of this Agreement or the Plan.
(n) Employment of Agents, Advisers and Counsel. To employ suitable agents,
actuaries, auditors, accountants, investment advisers, brokers and counsel, and to
pay their reasonable expenses and compensation.
(o) Appointment of Custodian. The Trust Committee shall designate a custodian to
hold Trust assets. The Trust Committee may change the custodian upon an
affirmative vote of four(4)Trustees.
(p) Power to do any Necessary Act. To do all acts which it may deem necessary or
proper and to exercise any and all powers under the Plan and this Agreement upon
such terms and conditions as it may deem in the best interests of the Trust.
6.3 Authorized Investments.
(a) General Definition. "Authorized investment" as used in this Article VI shall
mean and be limited to those investments that are defined as permissible for
investment of public funds in Section 24-75-601 et seq. C.R.S., as in effect from
time to time.
(b) Responsibility for Compliance. The responsibility for determining whether any
investment of Trust assets complies with the terms of this Agreement and
applicable law shall lie solely with the Trust Committee.
ARTICLE VII
CONTRIBUTIONS TO THE TRUST FUND
7.1 Member Contributions. Subject to the limitations of this Agreement, each Member
shall pay or cause to be paid contributions to the Trust at such times and in the amounts
determined by the Trust Committee as are necessary to ensure funding of the Trust is sufficient,
that operation of the Trust is not hazardous to the public or Participants or which the Trust
Committee otherwise deems beneficial to protect the financial condition of the Trust. The Trust
Committee shall establish Member contributions consistent with this Agreement, the Plan and
any guidelines consistent with this Agreement and the Plan as established by the Trust
Committee from time-to-time.
7.2. Contributions on Annual Basis; Rate Structure. The contribution rate structure for
Member contributions shall provide for contributions to be made on an annual basis.
Contributions shall be sufficient to fund the projected benefits and applicable expenses for the
Participants receiving benefits under the Plan.
12 CFFITRUST 1GA 1112014 125
7.3 Failure to Make Contributions.
(a) If any Member fails to make its Member contribution to the Trust within thirty
(30) business days after the date on which they are due, such contributions shall
bear interest from the date due at the rate of return for the three (3) month LIBOR
rate set on the date when such contribution was first due plus one percent (1%),
compounded monthly.
(b) Any other Member may, with the consent of the Administrator, make the
contribution on behalf of the delinquent Member and, such amount shall become
a debt of the delinquent Member to the contributing Member.
(c) The Trust Committee has the right, upon an affirmative vote of four(4) Trustees,
with any Trustees from a Member in default excluded from the vote, should the
delinquent Member not cure the delinquency within thirty(30)calendar days after
the Administrator provides written notice to the Member of its delinquency, to
terminate:
(I) such Member's participation in the Plan and Trust at the end of an
additional thirty(30)calendar day notice period or the end of the Plan year
of the Member's delinquency, if earlier, if such delinquency is not cured,
and
(2) upon such termination, no claims submitted by Participants of the
delinquent Member for benefits subsequent to the date of the termination,
shall be paid by the Trust.
(d) The Trust Committee also has the right, upon an affirmative vote of four (4)
Trustees, with any Trustees from the Member in default excluded from the vote,
to notify the Participants of such delinquent Member that such Member's
participation in the Plan and Trust has been or will be terminated.
(e) Nothing herein, however, shall relieve the delinquent Member of its responsibility
for benefits payable to its Participants.
7.4 TABOR Compliance. This Agreement does not create a multiple fiscal year direct or
indirect debt or other financial obligation. All financial obligations of a Member under this
Agreement are contingent upon appropriation, budgeting, and availability of specific funds to
discharge such obligations. No Member's contribution for any Fiscal Year shall exceed the
annual contribution billed for such Fiscal Year unless additional funds for payment thereof have
been appropriated by the Member.
7.5 State Funding. For benefits required under Section 29-5-302, C.R.S., no Member shall
be required without its consent to make a contribution for a Fiscal Year in excess of the amount
of state funding paid or payable to the Member under Section 29-5-302(11), C.R.S. for that
Fiscal Year. There is reserved to the Members and to the Trust the right set forth in Section 29-
13 CFHTRUS C'GA 11/2014 R5
5-302(12) C.R.S., providing that if, at any time, the state funding provided for the benefit
required by Section 29-5-302, C.R.S. is insufficient to cover the cost of the benefit, then the
requirements of Section 29-5-302, C.R.S. to maintain the benefit shall become optional pursuant
to Section 29-1-304.5.C.R.S. The Trust Committee may establish guidelines consistent with this
Agreement governing any exercise of the right under said Section 29-5-302(12), C.R.S.
7.6 Reports. The Trust Committee shall provide reports needed for purposes of
administration of this Agreement and the Plan.
ARTICLE VIII
PARTICIPATION, WITHDRAWAL AND OBLIGATIONS OF MEMBERS
8.1 Participation in Trust by Members. The initial participating Members in the Trust are
as set forth on Exhibit A. Additional Members may participate in the Trust subject to the
approval of the Trust Committee, which participation shall be effective as of the beginning of the
next Fiscal Year or such other date as determined by the Trust Committee. Participation in the
Trust is limited to those employers who are governmental entities participating for purposes of
Part 3 of Article 5 of Title 29, C.R.S. The Trust Committee reserves the right to require a new
participating Member at the time of joining the Trust to contribute to the reserves of the Trust or
to make such other appropriate financial contribution as determined by the Trust Committee. The
Trust Committee may reject requested participation by any additional Member for any reason.
To participate in the Trust, a Member must properly adopt and enter into this Trust Agreement,
which shall be evidenced by providing to the Trust Committee (i) a certified copy of the
resolution or ordinance of the governing body of the Member approving and entering into this
Trust Agreement, and (ii) a signed counterpart original of this Trust Agreement duly executed by
presiding officer of the governing body or other authorized officer of the Member.
8.2 Withdrawal by Member. A Member may withdraw from participation in the entire
Trust on the following terms and conditions:
(a) Except as provided in this section, any Member which intends to withdraw from
participation in the Trust must give at least ninety (90) days advance written
notice to the Trust Committee. Upon a Member's withdrawal from the Trust, any
Trustees who are employees of such Member shall no longer serve as Trustees.
(b) Upon withdrawal, the Member shall be deemed to have withdrawn from
participation in the entire Trust. Upon the effective date of withdrawal, the
Member's Participants shall cease to participate in the Plan, provided, that if
required by law, a Participant's benefits may be extended pursuant to, if and to the
extent applicable, the terms and provisions of the Plan, including those
Participants who have filed a claim for or are receiving benefits under the terms of
the Plan prior to the effective date of the Member's withdrawal, in which case
benefits shall continue subject to the withdrawing Member's payment of required
contributions.
(c) Upon withdrawal, the Trust Committee also has the right to notify the Participants
14 Crt►rRusI IGA 11/2014 R5
of such withdrawing Member that such Member's participation in the Plan and
Trust has ceased or will cease.
(d) In the event of a Member's withdrawal pursuant to this section, such withdrawing
Member shall have no right to any of the assets, income or reserves of the Trust at
any time, nor shall such Member have any right to a refund or rebate of any of its
contributions to the Trust.
8.3 Successors and Assigns. Upon approval of the Trust Committee, a participating
Member may transfer or assign its participation in the 'Crust to any successor in interest, whether
by merger, consolidation, reorganization, restructuring, transfer of employees, or dissolution,
creation or consolidation of Member entities or governing boards or otherwise.
8.4 Powers of Members. In addition to powers herein vested in the Members, the Members
shall have the power to:
(a) Amend the Trust Agreement by a two-thirds (2/3) vote of the Members present at
a meeting. Written notice of any proposed amendment shall be provided to each
Member at least forty-five(45)days in advance of any vote on the amendment.
(b) Terminate the Plan and disburse its assets by a two-thirds (2/3) vote of all
Members, pursuant to such notice and in keeping with such procedure as shall be
shall be established by the Trust Committee. In the case of such a vote,
termination of the Plan shall be pursuant to provisions of Article X.
8.5 Meetings of the Members. Meetings of the Members shall be held as follows:
(a) Members shall meet at least once annually at a time and place to be set by the
Trust Committee, with notice mailed to each Member at least thirty (30) days in
advance.
(b) Special meetings of the Members may be called by the Trust Committee upon its
own motion and shall be called by the Trust Committee upon written request of
thirty (30) percent of the Members, with notice mailed to each Member at least
thirty(30) days in advance.
(c) The chair of the Trust Committee shall preside at the meetings; the vice chair
shall preside in the absence of the chair.
(d) Thirty percent(30%)percent of the Members shall constitute a quorum to conduct
business.
(e) Except for action to terminate the Plan, proxy voting shall be allowed, pursuant to
such procedures as the Trust Committee may determine. Each Member shall be
entitled to one vote on each issue, to be cast by its Member Representative.
15 CFH`1 RUST'1GA 1112014 R5
8.6 Member Obligations. In addition to the other provisions, hereof, each Member shall
have the obligation to:
(a) Pay all contributions or other payments to the Trust at such times and in such
amounts as shall be established by the Trust Committee. Any delinquent
payments shall be paid with interest pursuant to a policy established by the Trust
Committee and uniformly applied.
(b) Designate in writing a Member Representative and one or more alternates for the
Members' meetings. The Representative and any alternate shall be an employee of
the Member, except as provided in Section 3.1, and may be changed from time to
time. Any alternate may exercise all the powers of the Representative during a
Member meeting in the absence of the Member Representative.
(c) Allow the Trust Committee and Administrator and their agents reasonable access
to records of the Member as required for the administration of Plan and Trust.
(d) Cooperate fully with the Trust Committee and Administrator and their agents in
matters relating to the administration of the Plan and Trust and the administration
and coordination of benefits under the Plan.
(e) Allow the Trust Committee to make decisions regarding, and to designate
attorneys to represent the Member in, the investigation, settlement and litigation
of any claim within the scope of benefits furnished through the Plan.
(f) Comply with the benefits administration, claims handling and related policies
established by the Trust Committee.
ARTICLE IX
ADMINISTRATION
9.1 Accounting.
(a) Books and Records. The Administrator generally shall be responsible for
keeping accurate and detailed records of all investments, receipts and
disbursements and other transactions hereunder, including such specific records as
shall be required by law and such additional records as may be agreed upon in
writing between the Administrator and the Trust Committee. All books and
records relating thereto shall be open to inspection and audit at all reasonable
times by any person or persons designated by the Administrator, the Member, or
the Investment Committee. The Trust Committee shall promptly provide copies
of such books or records to any persons designated by the Administrator.
(b) Accounting. Following the close of each Plan year of the Plan, or more
frequently as the Trust Committee and the Administrator may agree, the Trust
Committee, with the assistance of the Administrator, shall cause to be prepared a
16 ITRUST 1GA 11/2014 R5
written statement setting forth all investments, receipts, disbursements and other
transactions effected during such year or during the period beginning as of the
close of the last preceding year. Except as may be required by statute or by
regulations published by State or federal government agencies with respect to
reporting and disclosure, as may be required pursuant to the terms of the Plan or
this Agreement or as reasonably may be requested by a majority of the Members
or the investment Committee, no person shall have the right to demand or to be
entitled to any further or different accounting by the Trust Committee.
(c) Release. Except with regard to claims of breach of fiduciary duty, upon the
expiration of 90 days from the date of presentation to the Members of such annual
or other statement, the Trust Committee shall forever be released and discharged
from any liability or accountability to anyone as respects the propriety of its acts
or transactions shown in such account, except with respect to any acts or
transactions as to which, within such 90-day period, a Member whose interest is
affected by such act or transaction shall file with the Trust Committee its written
disapproval. En the event such a disapproval is filed, and unless the matter is
compromised by agreement of the Trust Committee, the Trust Committee shall
file its statement covering the period from the date of the last annual statement to
which no objection was made in any court of competent jurisdiction for audit or
adjudication. The applicable statutes of limitation shall be available to the Trust
Committee in the event of a claim of breach of fiduciary duty.
(d) Valuations. The Trust Committee shall designate a party to be responsible for
valuations of assets of the Trust for which prices are not readily available on a
nationally recognized securities exchange.
(e) Reliance on Administrator. The Trust Committee shall be entitled to rely on the
Administrator and any Custodian, other than Trust Committee, for the
maintenance and provision of all records specified in this Section.
9.2 Expenses. The expenses incurred by the Trust Committee in the performance of its
duties hereunder, including fees for legal and other services rendered and all other proper
charges and disbursements of the Trust Committee, including taxes of any and all kinds
whatsoever, that may be levied or assessed under existing or future laws upon or in
respect of the Trust or any money, property or security forming a part of the Trust Fund,
shall be paid by the Trust Committee from the Trust Fund, and the same shall constitute a
charge upon the Trust Fund. To the extent the Member pays any expenses that are
properly payable from the Trust Fund, the Trust Committee shall reimburse the Member
that has made payment from the Trust Fund if requested to do so by the Member.
ARTICLE X
AMENDMENT OF TRUST; TERMINATION OF PLAN
10.1 Amendment of Trust.
17 CFH`IRUST[GA 11/2014 R5
(a) Right to Amend. The Members may amend this Agreement at any time or from
time to time by the affirmative vote of two-thirds (2/3) of all Members, and any
such amendment by its terms may be retroactive. An amendment shall require
compliance with the terms of Section 8.4(a). An adopted amendment shall
become effective upon the date specified in the ballot approved by the Members,
without necessity of further written consent or signatures by the Members. Upon
adoption of any amendment, the Trust Committee shall cause a current copy of
this Agreement to be sent to each Member.
(b) Exclusive Benefit. Notwithstanding the foregoing, no amendment shall be made
which would authorize or permit any assets of the Trust Fund, other than such
assets as are required to pay taxes and administration expenses, to be used for or
diverted to purposes other than the exclusive benefit of Participants or
Beneficiaries.
10.2 Termination of Plan. The Trust shall continue for such time as may be necessary to
accomplish the purposes for which it was created and shall terminate only upon the
complete distribution of the Trust. The Trust may be terminated as of any date (and shall
in fact terminate upon the complete distribution of the funds of this Trust on such date or
thereafter) by unanimous vote of the Trust Committee and approval by a two-thirds (2/3)
vote of all Members. Upon termination of the Trust, provided that the Trust Committee
has not received instructions to the contrary, the Trust Committee shall liquidate the Trust
and, after paying the reasonable expenses of the Trust, including expenses involved in the
termination, distribute the balance thereof according to the written directions of each
Member for the provision of benefits similar to those provided under the Plan for the
benefit of each such Member's Participants and Beneficiaries covered thereunder;
provided, however, that the Trust Committee shall not be required to make any
distribution until the Trust Committee is reasonably satisfied that adequate provision has
been made for the payment of all taxes, if any, which may be due and owing by the Plan
and the Trust; and provided, further,that in no event shall any distribution be made by the
Trust Committee until the Trust Committee is reasonably satisfied that the distribution
will not be contrary to the applicable provisions of the Plan dealing with termination of
the Plan and the Trust.
10.3 Final Accounting. At such time as the Trust is terminated, the Trust Committee shall
render a final accounting of the affairs of the "frust to each participating Member, and
thereafter there shall be no claim or action against the Trust Committee or any Trustee,
and they shall have no further responsibilities or duties and shall be discharged.
ARTICLE XI
MISCELLANEOUS
11.1 Nonalienation of Benefits. Neither the benefits payable from the Trust Fund nor any
interest in any of the assets of the Trust Fund shall be subject in any manner to the claim
of any creditor of a Participant, or Beneficiary or to any legal process by any creditor of
such Participant, or Beneficiary; and neither a Participant nor any Beneficiary shall have
18 CFHTRUST IGA 11/2014 R5
any right to alienate, commute, anticipate or assign any right to benefits payable from or
any interest in the Trust, except as provided in the Plan.
11.2 Benefit. Except as otherwise provided in the Plan and this Agreement, no part of the
Trust hereunder shall be used for or diverted to any purpose other than for the benefit of
Participants and Beneficiaries or the payment of expenses as herein provided.
11.3 Effect of Plan. The Trust Committee is not a party to the Plan, and in no event shall the
terms of the Plan, either expressly or by implication, be deemed to impose upon the Trust
Committee any power or responsibility other than as set forth in this Agreement. In the
event of any conflict between the provisions of the Plan and this Agreement, this
Agreement shall be deemed to be incorporated into and be a part of the Plan, and the
terms of this Agreement shall control over any inconsistent terms of the Plan not contrary
to State law.
11.4 Dispute Resolution.
(a) Disputes arising in relation to benefits under the Plan shall be resolved in
accordance with the procedures established in the Plan.
(b) The parties to this Agreement (each, a "party") are mutually committed to
collaborative problem solving for resolving issues that may arise among or
between them concerning this Agreement. In the event of a dispute, the
complaining party may notify the other party of the dispute in writing and each
party to the dispute will each appoint a representative to negotiate in good faith to
resolve the dispute.These negotiations between representatives of the parties shall
continue until the earliest of: (a) the time the dispute has been resolved; (b) the
designated representatives have concluded that continued negotiation does not
appear likely to resolve the dispute; or(c)thirty (30) days from the date of written
notice of the dispute. If the dispute is not resolved through direct negotiations, the
parties may, with the consent of all parties, attempt to settle any dispute arising
out of or related to this Agreement through mediation. Unless otherwise agreed by
the parties, mediation shall proceed as follows: The parties may agree on a
mediator. If they are unable to agree on a mediator within thirty (30) days of the
agreement to mediate, the parties shall contact an agreed upon dispute resolution
organization or service and shall use its selection process to select a mediator.
Each party shall bear its own costs of the mediation and the parties shall share the
costs of the mediator. The mediation shall be scheduled within sixty (60) days of
the agreement to mediate. If the direct negotiation process is unsuccessful and the
parties do not consent to mediation or the agreed-upon mediation process does not
successfully resolve the dispute within ninety (90) days of the agreement to
mediate, the parties shall be entitled to pursue any other remedy allowed by law
or this Agreement. However, no party shall pursue such a remedy without first
exhausting the direct negotiation process.
19 CFI rmusT IGA 11/2014 R5
11.5 Entire Agreement. This Agreement constitutes the entire Agreement between the
parties hereto with regard to the subject matter hereof, and there are no other agreements
or understandings between the parties relating to the subject matter hereof other than
those set forth or provided for herein.
11.6 Approval of the Members. The Members shall have the right, on behalf of all
individuals at any time having any interest in the Trust, to approve any action taken or
omitted by the Trust Committee.
11.7 Liability for Predecessor or Successor. No successor Trustee hereunder in any way
shall be liable or responsible for any actions or omissions of any prior Trustee in the
administration of the Trust or the Trust Fund prior to the date such successor Trustee
assumes its obligations hereunder, nor shall any prior Trustee in any way be liable or
responsible for any actions or omissions of any successor Trustee.
11.8 Liability for Acts of Others. No Trustee shall be liable for the acts or omissions of a
Member, the Custodian, the Administrator, the Investment Committee or any Investment
Manager except with respect to any acts or omissions of any such party in which the
Trustee participates knowingly or which the Trustee knowingly undertakes to conceal,
and which the Trustee knows constitutes a breach of fiduciary responsibility of such
party.
11.9 Governmental Immunity. It is specifically understood and agreed that nothing
contained in this Agreement shall be construed as an express or implied waiver by the
Trust, the Trust Committee, the individual Trustees, or the Members of governmental
immunity or of the sovereign immunity of the State of Colorado or its instrumentalities or
any provision of the Colorado Governmental Immunity Act, Section 24-10-101 et seq.,
C.R.S.
11.10 Controlling Law. This Agreement shall be construed according to the laws of the State
of Colorado.
11.11 Effective Date. This Agreement shall be effective on and after
LbP-Cenntxr 2_Z..-. , 2014.
11.12 Execution in Counterpart. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original and all of which together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Member and the Trust Committee have caused this
Agreement to be signed by their duly authorized officers or representatives as of the day first
written above.
20 C1.1t1 tuls1 tGA 11/2014 R5
TRUST CO TEE:
By: if �i®a� By: .41/a•( i7 45?
Trustee Trustee
Date: t( (2 ( 1 1f y Date: ///499/2e/9
Member Representative of: Member Representative of:
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Trustee Trustee
Date: Oa 9b fz Date: /t - I4
Member Representative of Member Representative of:
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By: By:
Trustee Trustee
Date: Date:
Member Representative of: Member Representative of:
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21
Pt-teh(o
MEMBER:
Sign: Stephen G. Nawrocki
By: Pres �� Co - cil
Titl••dair
• •r . the City
Attest:
Sign: 4
By: Gina tint cher
Title: City Clerk
City Clerk
Date of Member Adoption of Agreement:
22 CFHTKUST IGA 11/2014 1(5