§ 2-320. Creation and terms of the City and County of Denver undersheriff prisoner purchase, welfare and recreation trust.

There is created hereby a trust to be known and titled as the "City and County of Denver Undersheriff Prisoner Purchase, Welfare and Recreation Trust," ("the trust") having the following described attributes, powers, restrictions, and characteristics, and such others as are implied or conferred by law not inconsistent herewith:

CITY AND COUNTY OF DENVER UNDERSHERIFF PRISONER PURCHASE, WELFARE AND RECREATION TRUST

Section One
General Purpose and Use of City and County of Denver Undersheriff Prisoner Purchase, Welfare and Recreation Trust   

(1)

For the purposes of this trust, the term "jail" shall mean all city detention and correctional facilities now or hereafter operated by the department of safety, including but not limited to the prearraignment detention facility and the county jail, regardless of how such facilities may be denominated elsewhere in the Charter of the city, in the City Code or in other laws, excluding, however, community corrections facilities operated by or under the department of safety.

(2)

The purpose of the trust is to achieve the following:

(a)

To provide for the safeguarding and administration and utilization by the city of monies in lawful U.S. tender in the possession of prisoners in the jail at the time of their arrival at the jail, except as otherwise required by law, and of such other funds as are deposited in or credited to the trust under the terms of this indenture below:

(i)

These funds shall be individually credited to an account for each prisoner possessing, providing or beneficially receiving such funds. Such funds may be utilized by the Trustees, by and through the Denver Undersheriff/Director of Corrections ("Undersheriff") and the Denver Sheriff Department ("Department"), to purchase items, approved by the Undersheriff, for personal hygiene, health and recreation and food and drink for prisoners as may be ordered or requested by such individual prisoners, from such funds as are credited to their individual account, for their individual use and benefit. Any credit balance remaining in the account of any such prisoner at the time of termination of such prisoner's incarceration or detention in the jail shall be paid to such prisoner at the time of such prisoner's release from the jail, or mailed or transferred as set out in subsection 2-319(g) above, after any deductions provided by law, all as determined by the Trustees. Any claim by such prisoner or any person or entity lawfully claiming by or through such prisoner must be presented no later than two (2) years from the date of release of the prisoner from the jail, or be forever barred.

(ii)

Prisoners shall be deemed to have consented to the establishment and operation of this trust, and the expenditure of such funds and of transactional and interest income thereon by the trustees, by allowing their respective accounts to be debited for purchases of such items as may be ordered or requested by them through the trust pursuant to procedures established by the department.

(b)

To utilize funds and nonmonetary consideration paid to or received by the city from purchase activities as described in subsection (a) above, for the benefit of prisoners. Earnings on the trust may be utilized by the trustees for acquisition of goods or services pertaining to the common recreation, health, safety and welfare of all prisoners of the jail, including but not limited to provision of legal research resources, recreational equipment, laundry services and facilities, vending machines, video and film presentations and other recreational, educational or health or welfare related purposes. The city may supplement such earnings as necessary from income generated by vendors' operations at the jail.

(3)

The corpus of the trust shall consist of all of the receipts above described and earnings thereon.

(4)

The trustees, by and through the undersheriff, may enter into such contractual arrangements as they deem necessary to effectuate the purposes of this trust, including but not limited to agreements which provide for receipt by the city of revenue from sales utilizing funds in the trust, which may consist of but not limited to commissions, percentages of revenue or other funds payable to the city, or the acquisition of nonmonetary consideration by the city, including but not limited to computer hardware and software, all arising out of such transactions for the use and benefit of such prisoners.

(5)

Expenses of operation and administration of the trust shall be paid for exclusively out of income from the trust. No prisoner shall be charged additional fees for the administration of his portion or the whole of the trust nor shall city general fund monies be utilized in the operation or administration of the trust.

(6)

The expending authority for the trust shall be the department, at the direction of the trustees, by and through the undersheriff. None of the funds in the trust including investment income and other income generated by the utilization of the funds may be lent, pledged, or hypothecated for any purpose whatsoever, except in ways consistent with the investment policies of the manager of finance as limited by and described in the Charter of the city as is further limited by the terms of this trust. The corpus of the trust must be segregated from other city property and income generated by the trust.

Section Two
Source of Assets

(1)

The source of funds for the trust shall be as follows:

(a)

Except as otherwise required by law, those monies in lawful U.S. tender possessed by prisoners of the jail at the time of their arrival at the jail, together with monies in lawful U.S. tender sent, delivered or provided to the department by third parties for the use and benefit of individual prisoners during the term of their incarceration or detention at the jail.

(b)

Those profits, commissions, percentages of revenue, or other income paid to the city from vendors providing services to the trust at the jail and with earnings generated by the trust as augmented by earnings from additions to the trust from gifts or donations to the trust as set out in Section Nine below.

Section Three
Transfer of Assets to Trust

Except as otherwise required by law, the city shall transfer to the trust all monies that have been received by the trustees from prisoners at the jail and all income from the utilization of such monies. Third persons may donate funds to the trust consistent with the purposes, conditions and limitations thereof, to be held nevertheless, solely for the uses and purposes set forth in the trust and for no other purposes. All funds held in those city accounts captioned "City and County of Denver Undersheriff Prisoner Special Trust Fund" No. 5600/5631 and "City and County of Denver Undersheriff Prisoner Welfare and Recreation Project" No. 1298-3910 at the time of the establishment of this trust shall be lawfully transferred into the trust.

Section Four
Investment and Application of Trust Assets and Income

The trustees shall administer and manage the trust hereunder, and all income to and expenditures from such trust, by and through the department, and with the advice and consultation of the manager of finance. The trustees shall be charged with responsibility in carrying out the terms and conditions of this trust in compliance with the Charter, ordinances, regulations and executive orders of the city, and as otherwise required by law. Income from the trust shall be paid into the trust, and costs and expenses of the administration of the trust shall be paid exclusively from the income, from all sources, of the trust.

Section Five
Restrictions on Use of Trust Assets

The corpus of or income from the trust, except as otherwise required by law, shall not be given to or inure to the benefit of any individual or corporation other than the city for the use and benefit of prisoners of the jail in carrying out the purposes of the trust, provided that the trustees may enter into contractual arrangements for the purchase or lease of goods or services as set out above, which may involve the receipt of revenues or commissions by the trust. In the event the city ceases to exist, and upon the dissolution of this trust, the city may distribute the assets of the trust, after payment of any outstanding credit balances to appropriate prisoners from the trust, to any organization which at the time of distribution is an organization specified by the Internal Revenue Code of the United States as one to which contributions are deductible for federal tax purposes, unless otherwise required by law.

Section Six
Custody of Assets

In order to secure and maintain the trust funds, the trustees shall rely upon the custodial and investment services of the manager of finance of the city, who shall serve without fee.

Section Seven
Appointment and Removal of Trustees

(1)

The manager, the undersheriff, and the Denver Manager of Human Services shall serve indefinitely as the trustees of this trust and shall be the expending authority for the income generated by the corpus of the trust specified herein. The trustees shall serve without fee. A trustee may be removed, for good cause, including but not limited to, a breach of fiduciary duty such as self-dealing or misuse of trust assets, failure to properly account for trust assets, and having interests in conflict with or adverse to the trust. Inability to serve adequately as a trustee shall likewise be grounds for removal.

(2)

The trustees must accept the terms and conditions of this trust in order to serve, and by accepting the appointment do thereby agree to the terms and conditions thereof.

Section Eight
Gifts Irrevocable and Trust Irrevocable

Annual payments, gifts, and settlements made to the city to the credit of the trust or made to the trust under this section of the Code shall be irrevocable. If it shall be determined by the Internal Revenue Service, subsequent to the creation of this trust, that the city or the trust is not exempt from the payment of income tax upon its income or gain derived from the trust or that donors to the trust are not entitled to charitable deductions for income tax purposes for contributions made thereto in the manner and to the full extent provided by the Internal Revenue Code of 1986, as amended, then such gifts and apportioned earnings thereon, as remain in the trust funds at the time of such determination, after payment to prisoners, as appropriate, of their individual credited amounts in the trust as set out above, shall be returned by the trustees to the donors thereof, or, should that be impractical, given to a qualified tax exempt charitable organization selected by the mayor and city council to carry out best the purposes of this trust. This trust shall not, however, thereupon terminate, but shall remain and continue irrevocable and may not be amended by ordinance or other law save and except to comply with requirements of the Internal Revenue Code and regulations promulgated thereunder necessary for it to remain and continue as a tax-exempt trust.

Section Nine
Additional Gifts to Trust

In addition to the payment of funds into the trust for the use and benefit of individual prisoners, third parties and other persons or entities may make gifts and donations of money to the trust, but such gifts shall be treated as corpus of the trust and governed in every respect by the terms and conditions of this trust and may not be conditioned on other requirements.

Section Ten
Good Faith Duty

The trustees, as well as the manager of finance, shall be chargeable only with the exercise of good faith in carrying out the provisions of the trust and shall not, in the absence of bad faith, be responsible or accountable for errors of judgment in managing or investing the trust or in making decisions regarding the provisions of the trust. All actions or omissions of the trustees and the manager of finance in the administration of the trust, except for actions or omissions constituting willful misfeasance or intentional misconduct, shall be deemed to be encompassed within the scope of their duties as officers, officials or employees of the city.

Section Eleven
No Alteration of City Relationship to Prisoners and Detainees or Others

It is not the intent of the city, in establishing this trust, to in any way create any special relationship, beneficial or otherwise, with any prisoner at the jail, or with any other person occupying or utilizing any city facility, separate and apart from, or in addition to, any preexisting relationship(s) that may otherwise arise or exist by operation of or under color of city, state or federal law, nor is it the intent of the city, in establishing this trust, to in any way establish any such prisoner or other person as a third party beneficiary or a person with standing to contest the operation or administration of the trust.

(Ord. No. 242-99, § 1, 3-29-99; Ord. No. 21-01, §§ 2, 3, 1-2-01; Ord. No. 342-05, § 3, 5-16-05; Ord. No. 775-07, § 7, 12-26-07)