HomeMy WebLinkAbout1994-11-15 Support Documentation Town Council Evening Session
VAlL TOlNN COUfVCIL
EVENING MEETfNG
`PUESDAY, NOVEAABER 15, 1994
7:30 P.M. sN TO!! COl1NCBL CHAMBERS
AGENDA
1. CITIZEN PARTICIPATION.
2. Consent Agenda.
A. Resolution No. 23, Series of 1994, A Resolution Adopting The Environmental Strategic Plan.
3. Ordinance No. 23, Series of 1994, second reading of an annual appropriation ordinance: adopting
a budget and financial ptan and making appropriations to pay the costs, expenses, and liabilities
of the Tovun of Vail, Colorado, for its fiscal year January 1, 1995, through December 31, 1995, and
providing for the levy assessment and collection of Towrn ad valorem property taxes due for the
1994 tax year and payable in the 1995 fiscal year.
4. Ordinance No. 24, Series of 1994, first reading of an Amendment to Section 3.40.020, Adding the
Definition For "Telecommunications Senrice".
5. Ordinance No. 26, Series of 1994, first reading of an Ordinance Grarrting a Cable Television
Franchise to Cablevision VI, Inc., d/b/a TCI Cablevision of the Rockies, Inc., to Construct,
Reconstruct, Operate, and Maintain a Cable Communications System Within The Town of Vail
Pursuant to and Subject to the Provisions of Ordinance No. 25, Series of 1994.
6. Ordinance No. 27, Series of 1994, first reading of an Ordinance Adopting a New Town of Vail Police
and Fire Employees' Pension Plan Subject to Approval by Sixty-Five Percent (65%) of the Town's
Police and Firemen; and Setting Forth Details in Regard Thereto.
7. Ordinance No. 28, Series of 1994, first reading of an Ordinance Adopting a New Town of Vail
Employees' Pension Plan; and Setting Forth Details in Regard Thereto.
8. Ordinance No. 29, Series of 1994, first reading of an Ordinance Adopting a New Trust Agreement
Pursuant to Tovun of Vail Police and Fire Employees' Pension Plan and Setting Forth Details in
Regard Thereto.
9. Ordinance No. 30, Series of 1994, first reading of an Ordinance Adopting a New Trust Agreement
Pursuant to Town of Vail Empioyees' Pension Plan and Setting Forth Details in Regard Thereto.
10. Ordinance No. 31, Series of 1994, first reading of an Ordinance Making Supplemental
Appropriations From the Town of Vail General Fund, Capital Projects Fund, The Real Estate
Transfer Tax Fund, Parking StructurP Fund, Heavy Equipment Fund, Booth Creek Debt Service
Fund, and The Vail Housing Fund, of the 1994 Budget and the Financial Plan for the Town of Vail,
Colorado; and Authorizing the Expenditures of Said Appropriations as Set Forth Herein; and Setting
Forth Details in Regard Thereto.
11. Appeal of a PEC denial of a request for a front setbadc variance.
12. Request for a sign variance for the West Vail Lodge.
13. Town Manager's Report.
14. Adjournment.
NOTE UPCOMING MEETING START TIMES BELOW:
(ALL TIMES ARE APPROXIMATE AND SUBJECT TO CHANGE)
•••m•s•
THE NEXT VAIL TOWN COUNCIL REGUL14R WORK SESSION
WILL BE ON TUESDAY, 11/22/94, BEGIIdPIING AT 2:00 P.M. IBV TOV COUNCIL CHAMBERS.
THE FOLLOWING VAIL TOWN COUNCIL REGULAR WORK SESSION
WILL BE ON TUESDAY, 12/6/94, BEGINNING AT 2:00 P.M. IN TOV COl9NCIL CHd1AABERS.
THE NEXT VAIL TOWN COUNCIL REGULAR EVENING MEETING
WILL BE OiV TUESDAY, 12/6/94, BEGINNING AT 7:30 P.M. IN TOV COUNCIL CHANABERS.
• 4D • m • • •
C:WGENDA.TC
~ s
VAIL TOVVN COUNCIL
EVENING AIIEETING
0~ESDAll y NOtlE6VCBER 1 y 1994
C .3o P.M. ItlV II Otl VOUA~CIlL '6eWP'itl17tlBERS
EAP&'6NDED {i~.1EEtlDM'9
7:30 P.M. 1. Citizen Participation.
7:35 P.M. 2. Consent Agenda.
A. Resolution No. 23, Series of 1994, A Resolution Adopting The Environmental
Strategic Plan. '
7:45 P.M. 3. Ordinance No. 23, Series of 1994, second reading of an annual appropriation
Steve Thompson ordinance: adopting a budget and financial plan and making appropriations to pay
the costs, expenses, and liabitities of the Town of Vail, Colorado, for its fiscal year
January 1, 1995, through December 31, 1995, and providing for the levy
assessment and collection of Town ad valorem property taxes due for the 1994 tax
year and payable in the 1995 fiscal year.
8:15 P.M. 5. Ordinance No. 24, Series of 1994, first reading of an Amendment to Section
Sally Lorton 3.40.020, Adding the Definition For "Telecommunications Service."
Steve Thompson
Action Requested of Council: Approve, Modify or Deny.
Backqround Rationale: In 1991 the Town of Vail adopted the Colorado Municipal
Leagues' standard sales tax definitions and did not include a definition for
"Telecommunications Service."
Staff Recommendation: Approve.
825 P.M. 6. Ordinance No. 26, Series of 1994, first reading of an Ordinance Granting a Cable
Tom Moorhead Television Franchise to Cablevision VI, Inc. d/b/a TCI Cablevision of the Rockies,
Inc. to Construct, Reconstruct, Operate, and Maintain a Cable Communications
System Vllithin The Towrn of Vail Pursuant to and Subject to the Provisions of
Ordinance No. 25, Series of 1994.
8:55 P.M. 7. Ordinance No. 27, Series of 1994, first reading of an Ordinance Adopting a New
Tom Moorhead Town of Vail Police and Fire Employees' Pension Plan Subject to Approval by
Steve Thompson Sixty-Five Percent (65%) of the Town's Police and Firemen; and Setting Forth
Details in Regard Thereto.
9:05 P.M. 8. Ordinance No. 28, Series of 1994, first reading of an Ordinance Adopting a Newr
Tom Moorhead Town of Vail Employees' Pension Plan.
Steve Thompson
9:15 P.M. 9. Ordinance No. 29, Series of 1994, first reading of an Ordinance Adopting a IVew
Tom Moofiead Trust Agreement Pursuant to Town of Vail Police and Fire Employees' Pension
Steve Thompson Plan and Setting Forth Details in Regard Thereto.
9:25 P.M. 10. Ordinance No. 30, Series of 1994, first reading of an Ordinance Adopting a New
Tom Moorhead Trust Agreement Pursuant to Town of Vail Employees' Pension Plan and Setting
Steve Thompson Forth Details in Regard Thereto.
9:35 P.M. 11. Ordinance No. 31, Series of 1994, first reading of an Ordinance Making
Steve Thompson Supplemental Appropriations From the Town of Vail General Fund, Capital
Projects Fund, The Real Estate Transfer Tax Fund, Parking Structure Fund, Heavy
Equipment Fund, Booth Creek Debt Service Fund, and The Vail Housing Fund, of
the 1994 Budget and the Financial Plan for the Town of Vail, Colorado; and
Authorizing the Expenditures of Said Appropriations as Set Forth Herein; and
Setting Forth Details in Regard Thereto.
_
9:50 P.M. 11. Appeal of a PEC denial of a request for a front setback variance. Applicant and
Andy Knudtsen Appellant: Dan Frederick.
Action Requested of Council: Uphold/overturNmodify the PEC's decision of denial.
Backqround Rationale: On October 10, 1994, the PEC voted 6r-0 to deny a request
from Mr. Dan Frederick to allow GRFA in the front setback. Please see the PEC
memo and minutes for a complete understanding of the applicanYs proposal and
the PEC's decision.
Staff Recommendation: None.
10:35 P.M. 12. Request for a sign variance for the West Vail Lodge, 2211 North Frontage Road,
Lauren Waterton Lot 1, Block A, Vail Das Schone 3rd Filing and Tract C, a resubdivision of Vail Das
Schone lst Filing.
Action Requested of Council: Approve/deny sign variance request.
Backqround Rationale: On IVovember 2, 1994, the Design Review Board (DRB)
voted unanimously (4-0) to recommend approval for this variance request.
Staff Recommendation: The staff recommends approval of the requested sign
variance, per the staff memorandum to the DRB dated November 2, 1994.
10:45 P.M. 13. Town Manager's Report.
10:55 P.M. 14. Adjournment.
NOYE UPCOIIAIPJG flAEETING START TIMES BELOUV:
(ALL TIMES ARE APPROXIMATE AND SUBJECT TO CHANGE)
0 0 * 0 0 0 0
TPiE NIEXT !/AIL T'OWN COUIVCIL REGULAR lNOFiK SESSION
!AlILL BE ON TUESDAV, 91/8/94, BEGIBVNING AT 2:00 P.M. IIV TOV COUfVCIL CHAMBERS.
THE FOLLOIAlfNG VAIL TOVNN9 COUNCIL FtEGULAR VI/ORK SESSION
lAIILL BE ON TUESDAV, 11/15/94, BEGIIdIVING AT 2:00 P.M. IN YOV COUNCIL CFOANBBERS.
79iE PIEXT VAIL TOWN COUNCIL FiEGULAR EVEPIING AAEETlNG
UNILL BE ON TIDESDAY, 99/95/94, BEGINNIIVG i4T 7:30 P.M. BN TOV COUNCIL CHAflABERS.
0 4D 0 • • • (D
C:VIGENDA.TCE
d
ORDIN,4NCE NO. 23
SER@ES OF 9994
ANNUe4L APPIROPR9ATBON ORDINe4NCE:
ADOPTINC A BIJDGET AIVD EINANCIAL PLAN
PV6VD OdtlAKING APPROPRIPNTIO9tlJ YO PY'9 6 THE COJ II Jy ENrENJEJ, AND ILIMBIILI II IGS
OF THE TOWN OF !/AIL, COLOFiADO,
FOR DTS F9SCAL VEAR .DAiVUARV 9, 1995, TFiROIJ(aF9 DECEnABEPi 31, 1995,
AND PROVIDING, FOR THE LEVY ASSESSIVIENT ABVD COLLECT90N OF
TOWN AD V,4LOREM PROPERTY TAXES DIJE FOR THE 1994 TAX YEAR
AND PAYABLE ON THE 1995 F@SCAL VEAR.
WHEREAS, in accordance with Article IX of the Charter of the Town of Vail, Colorado,
the Town Manager prepared and submitted to the Town Council a proposed long-range capifal
program for the Town and a proposed budget and financial plan for all Town funds and
activities for the 1995 fiscal year; and
WHEREAS, notice of public hearing on the proposed Town budget and capital program
was published on the 1 st day of November, 1994, more than seven (7) days prior to the
hearing held on the 1 st day of November, 1994, pursuant to Section 9.5 of the Charter; and
WHEREAS, it is necessary for the Town Council to adopt a budget and financial plan
for the 1995 fiscal year, to make appropriations for the amounts specified in the budget, and
to provide for the levy, assessment and collection of Town ad valorem property taxes due for
the 1994 year and payable in the 1995 fiscal year.
NOW, THEREFORE, be it ordained by the Town Council of the Town of Vail,
Colorado, that:
1. The procedures prescribed in Article IX of the Charter of the Town of Vail,
Colorado, for the enactment hereof have been fulfilled.
2. Pursuant to Article IX of the Charter, the Town Council hereby makes the following
annual appropriations for the Town of Vail, Colorado, for its fiscal year beginning on the first
day of January, 1995, and ending on the 31 st day of December, 1995:
FUND AMOUNT
General Fund $14,450,556
Capital Projects Fund 9,323,343
Real Estate Transfer Tax 2,088,752
Parking Structure Fund 1,971,291
Heavy Equipment Fund 1,729,976
Police Confiscation Fund 101,464
Debt Service Fund 2,979,903
Health Insurance Fund 1,054,405
Vail Marketing Fund 557,500
Booth Creek Debt Service Fund 68,000
Vail Housing Fund 30,000
Facility Maintenance Fund 1,641,254
Total: 35,996,444
Less Interfund Transfers: <6,275,414>
Net Budget $29,721,030
Ordinance No. 23,
1 Series of 1994
3. The Town Council hereby adopts the full and complete Budget and Financial
Plan for the 1995 fiscal year for the Town of Vail, Colorado, which are incorporated by
reference herein and made part hereof, and copies of said public records shall be made
available to the public in the Municipal Building of the Town.
4. For the purpose of defraying part of the operating and capital expenses of the
Town of Vail, Colorado, during its 1995 fiscal year, the Town Council hereby levies a property
tax of 4.69 mills upon each dollar of the total assessed valuation of $357,888,150 for the 1993
tax year of all taxable property within the Town, which will result in a gross tax levy of
$1,678,495. Said assessment shall be duly made by the County of Eagle, State of Colorado,
as directed by the Colorado Revised Statutes (1973 as amended), and as otherwise required
by law.
5. This Ordinance shall take effect five (5) days after publication following the final
passage hereof. 6. If any part, section, subsection, sentence, clause or phrase of this ordinance is
for
any reason held to be invalid, such decision shall not affect the validity of the remaining
portions of this ordinance; and the Town Council hereby declares it would have passed this
ordinance, and each part, section, subsection, sentence, clause or phrase thereof, regardless
of the fact that any one or more parts, sections, subsections, sentences, clauses or phrases
be declared invalid.
7. The Town Council hereby finds, determines, and declares that this ordinance is
necessary and proper for the health, safety, and welfare of the Town of Vail and the
inhabitants thereof.
8. The repeal or the repeal and reenactment of any provision of the Municipal
Code of the Town of Vail as provided in this ordinance shall not affect any right which has
accrued, any duty imposed, any violation that occurred prior to the effective date hereof, any
prosecution commenced, nor any other action or proceedings as commenced under or by
virtue of the provision repealed or repealed and reenacted. The repeal of any provision
hereby shall not revive any provision or any ordinance previously repealed or superseded
unless expressly stated herein.
9. All bylaws, orders, resolutions, and ordinances, or parts thereof, inconsistent
herewith are repealed to the extent only of such inconsistency. This repealer shall not be
construed to revise any bylaw, order, resolution, or ordinance, or part thereof, theretofore
repealed.
Ordinance No. 23,
2 Series of 1994
*
J
IIVTRODUCED, READ OiV FIRST READING, APPROVED AND ORDERED
PUBLISHED OiVCE IfV FULL, this 1st day of November, 1994. A public hearing shall be held
hereon on the 15th day of fVovember, 1994, at the regular meeting of the Town Council of the
Town of Vail, Colorado, in the Municipal Building of the Town.
Margaret A. Osterfoss, Mayor
ATTEST:
Holly McCutcheon, Towrn Clerk
READ AfVD APPROVED OfV SECOND READING AND ORDERED PUBLISHED
this 15th day of November, 1994.
Niargaret A. Osterfoss, Mayor
ATTEST:
Holly McCutcheon, Town Clerk
Ordinance No. 23,
3 series or,ssa
"~\I l
, il-Ot-qt.i •
CAPITAL IAAPROVEAAENT SUMMARY S~oCJ-
. 19951999 CAPITAL IMPROVEMENT PROJECTS CL %GLU-`1
PRO]ECT Beyond
NO 1995 1996 1997 1998 1999 TOTAL 1999
Revenues:
Sales Tax 4,764,548 5,002,775 5,252,914 5,515,559 5,791,337 26,327,133
Litt Tax 1.045.000 1,097250 1,152.000 1,209,750 1.270.250 5.774.250
County Saies Tau 210,000 220,500 231,500 243,000 255,000 1,160,000
Transter from Parking Fund 204.857 183,000 180,000 195.000 520,000 1.282,857
RETT Loan Payment 535,120 572,189 1,107.309
Interestlncome 124,000 124,000 124,000 124,000 124,000 620,000
6,883,525 7,19 ,714 6,940,414 7,287,309 7.9 0,587 36,271,549
EquipmeM Purchases
17 Alarm Monitor Process Unit 60,000 60,000
33 Pay on Foot Siation at Lionshead PaAcing Structure 98,630 98,630
32 Additional Bus Purchase 230,000 244,000 474,000
5 Fire Trudc Replacement 310,000 310,000
26 New Capital Heavy Equipment 122,300 131,250 134,300 137,700 135,000 660,550
18 Computer Sottware 8 Hardware Replacements & Upgrades p
6 Replace Buses (Federal Grant $1,000,000) 1,286,000 2,030,000 3,316,000
AAeiMenence
16 Resurface Muni Building parking 14,000 14,000
15 Replace Carpet in Muni Building 25,000 25,000
14 Street Furniture Replacement 20,000 20.000 20,000 20,000 20,000 100,000
13 Bus SheAer Replacement Program 20,000 20,000 20,000 20,000 20,000 100,000
]o Parking Structure Capital Maimenance 204,857 183,000 180,000 195,000 520,000 1,282,857
9 Capital Street Maintenance 270,000 175,000 270,000 175,000 475,000 1,365,000
7 Emergency Building Maintenance 25,000 25,000 25,000 25,000 25,000 125,000
Street Reconstruction
s Golf Course Area 1,450,000 1,450,000
8 Matlerhorn ' 900,000 900,000
s Llonsridge Area 2,412,000 2,412,000
8 Vail Valley Drive 2,150,000 2,150,000
8 East Vail - Bridge Rd... 2,290,000 2,290,000
8 East Vail - Meadow Lane 2,093,000 2,093,000
8 West Vail 0 2,100,000
Building Improvements
11 Town Shop Maintenance Improvements 500,000 2,100,000 200,000 2,100,000 3,815,000 8,715,000 1,255,000
Bridge Conatruction
Pulis Bridge ' 75,000 75,000
Covered Bridge Restoration ' 132,700 132,700
Other Improvemerrts
23 Relocate Chedcpoint Charlie 315,000 315,000
22 Install New Bus SheBers 20,000 20,000 20,000 20,000 20,000 100,000
21 Fire Dept - Diesel Exhausl System Station I& 11 22,513 18,105 40,618
l ADA Compliance 50,000 50,000 50,000 50,000 50,000 250,000
'_u FountainBacMlow 19,528 19528
14 Street Light Improvement Program 50,000 50,000 50,000 50,000 50.000 250.000
12 Drainage Improvemenis 79,000 100,500 113,400 120.600 163,600 577,100
35 News Paper Dispensers 35,000 19,000 16,000 70,000
Ice Arena Pedestrian Chute ` 70,000 70,000
East Lionshead Bus Shop ' 60,000 60,000
Bald Mountain Bus Stop • 87,194 87,194
Interchenge Improvemertts
25 West Vail Roundabout 100.000 1,900,000 2,000,000
24 Main Vail Roundabout and Landscaping 1,530,600 1,530,600
27 Simba Run Underpass (TOVs Portion 30%) 250,000 750,000 1,000,000
N4ester Planning
28 Land Use Plan 100,000 100,000
2u Lionshead Master Plan and Design Guidelines 80,000 80,000
30 SDD Consutting Work 30,000 30,000
Update Design Guidelines 60,000 60,000
31 Projeet Nlanagement 200,000
TOTAL OF THE ABOVE PROJECTS 7, 54, , ,4 5 5,392,700 5,95 ,300 7,701,600 34,7 8,777 ,355,00
Transter for Debt Service 1.468,651 1,182,080 1,292,542 1,441,562 1,550,887 6,935,722
Total Expenditures , , , ,565 6,685,242 7,394,862---T252,487 41,724,499-
Revenue 0ver(Under)Expenditures (2,439,818) (2,068,851) 255,172 (107,553) (1,291,900) (5,452,950)
Beginning Fund Balance 4,938,462 2,498,644 429,793 684,965 577,412
Ending Fund Balence 2,498,644 42%793 684,965 577,412 71
CIP951.WK4 1 10/31/94
1995-1999CAPITALIMPROVEMENTPROJECTS 1995 1996 1997 1998 1999 mined 70TAL
V NEW INITIATIVE PROJECTS ! PROJECTS UNFUNDED
35 Sireetscape Improvemems:
Village Core - Gore Creek Dr 8 Bridge Street 1,985,292 1,985,292
East Village - W Drive trom E Meadow,to Soccer Feild 1,766.814 1,766,814
East Lionshead Circle 1,024,418 1,024,418
West Meadow Drive ,675,110 1,675, 110
East Meadow Drive - Vail Road to Willow Bridge Road 1 878,332 878,332
Eazt Meadow Dr - Willow Bridge Road to VV Dr 1,154,915 1,154,915
34 Village Loading Facility (P3 8 J Site) 5,000,000 5,000,000
39 Development Enhancements 90,000 90,000 90,000 90,000 90,000 450,000
37 Sidewalk Improvements 50,000 50,000 50,000 50,000 50,000 250,000
38 Cemetery 1st Phase 660,270 660,270
40 Frontage Road Widening 8 Medians 111,000 537,350 700,000 1,348,350
41 Ford Park Left Tum Lane 338,155 338,155
42 Frontage Road Landscape Medians 153,000 153,000
43 Febuild Entryto Muni Parking Lot 100,000 100,000 '
44 CSO Space Conversion 7,500 7,500
45 West Vail Fire Station 1,235,000 1,235,000
46 Library Remodel 5,000 255,000 260,000
47 Automate Fire Dept Electronics 20,789 21,079 41,868
48 Additional Bus Pultoffs 30,000 30,000 30,000 30,000 30,000 150,000
49 Collector Street / Bus Route Sidewalks 123,000 1,691,000 402,000 2,200,500 4,416,500
Sn Global Positioning System for Buses 160,000 160,000
51 Roadcut Slope Revegetation 30,000 30,000 30,000 30,000 120,000
52 Christmas Lights 20,000 35,000 25,pp0 35,000 115,000
53 Irrigation Control System 60,000 60,000
54 Replace Dispatch Console Panel Phones 28,000 28,000
55 Replace Radio Consoles and Furniture in Dispatch 105,000 105,000
TOTAL 1.389,559 722.079 2.458.505 2,6 6,0 0 02,000 15,685,381 23.483 524
C I P951. W K4 2 10/31 /94
1ItET'II' Budget
(fltecommended)
1995 1996 1997 1998 1999 Total
RETT Revenues
Real Fstate Transfer Tax 1,700.000 1,700,000 1,700,000 1,700,000 1,700,000 8,500,000
Trensfer from VRD 90,000 95,000 100.000 105,000 110.000 500,000 •
Rollfonvardsfrom 1914 395,838 395,838
LotteryRevenue 14,000 14,300 14,600 14,900 15,000 72,800
Interest Income 70,000 58.500 58,500 58,500 58,500 304.000
Recreation Amenity Fee 30.000 30,000 30.000 30,000 30,000 150,000
Total RETT Revenues 2,299,838 1,897,800 1,903,100 1,908,400 1,913,500 9,922,638
RETT Eapenditures
Malntenance
Rec Path Maintenance 100.000 103.000 108,000 113.000 119.000 543,000
Park Maintenance 150,000 160,000 166,000 175.000 185,000 836,000
Subtota! Malntenance 250,000 163.000 274,000 288,000 304,000 1,379,000
Pathways
Dowd Junction Path 50,000 50,000
Vail Trail Safery • 1200 2.200
Ford Park Bike Path ' 15.000 140,000 155.000
West Vail Bike Path * 200.000 100,000
Lionshead Access Path ' 26,000 26,000
S. Frontage Road Path 175,000 500,000 675.000
Vail Valley Drive Bike I,anes 780,000 780,000
SunburstShoulder 135,000 135,000
Vail Das Schone Bike Path 15.000 120,000 135 ,000
Library Path 0 115.000 115,000
Ford Park Walkway/I.ights 78,000 78,000
North/South Trail 30,000 150.000 300,000 550,000 1,030,000
Subtotel Pathways 572,100 _550,000 1,268,000 300,000 691.000 3,381,200
Park Imp rovements
Ford Park Master Plan 30,000 30,000
Pirate Ship Park • 41.000
41,000
Coverrd Bridge Pocket Park " 11,500 11,500
Dowd Junction Land Imp " 8,500 8,500
Playground Safety Improvements 75,000 65,000 32.500 172,500
Back Flow Prevention 15,000 15,000
Big Hom Improvements 45,000 , 4 S,000
Donovan Park ]mprovements 50,000 375.000 425,000
Irrigation Control 60,000 60,000
Buffehr Creek Tot Lot 18.000 18,000
Stephens Park lmprovements 50,000 50,000
Lionshead Tm Lot 85,000 85,000
Subtota! Park Improvements 241,000 65,000 127,500 50,000 478,000 961,$00
Open Lands
Property Acquisition 150.000 0 0 0 0 150,000
Debt Servlce
Golf Course Note 340,432 340,432 340,432 340.432 340,432 1,702,160
Debt Service on Open Lands ? ? ~
Transferto CIP(Note Payable) 535,120 572,189 1,107,309
Subtotal Debt Service 875,552 912,621 340,432 340,432 340432 2,809,469
Total 2,088,752 1,790,621 2,009,932 978,432 1,813,432 8,681,169
Suplus (Deticit) 211,086 107,179 (106,832) 929,968 100,068 ERR
Beg?nning Fund Balance 956,669 1,167,755 1,274,934 1,168,102 2,098,070
Ending Fund Balance 1,167,755 1,274,934 1,168,102 2,098,070 2,198,138
R ETTC IP 1. WK4 10/28/94
~
Suppeementa9 Schedu@e of Lease Purchase Agreements
Total Lease T'otal Lease
Payments for Payments to
1995 Maturity
ReaB Property Leases
Transportation Facility 197,125 558,925
Persona@ Property Leases
Copiers 15,141 38,252
Total 8'ersona9 Property Lease Payments $212,266 $597,177
o L~
t" , i i5
CAPRAL RWPROVEAAEi4f SUpImVAARY
1995-1999 CAPITAL IMPROVEMENT PROJECTS
PROJECf ° Beyond
NO. • 1995 1996 1997 1998 1999 TOTAL 1999 Revanues:
Sales Tex 4,764.548 5,002.775 5252.914 5.515,559 5.791.337 26.327.133
LiftTax 1,045.000 1,097250 1,152,000 1,209,750 1,270,250 5,774,250
CourHy SalesTax 210,000 220,500 237,500 243.000 255,000 1,160,000
TransfertromParkingFund 204,857 183,000 180,000 195,000 520,000 1282,857
Devebper Reimb
REfT Loan Payment 535,120 572.189 1,107.309
Irrterestineome 124,000 124.000 124,000 124,000 124,000 620,000
6,8 3,525 7,19 ,714 6,940,04 7, 7,3 9 7,960,597 6,271,549
Equipment Purehaaes ,
17 Alarm Monltor Process Unit 60,000 60,000
33 Pay on Foot Station at Lionshead Parking Structure 98.630 98.630
32 Additional Bus Purchase 230,000 244.000 474.000
5 Fire Truck Replacement 310.000 310.000
26 New CapitalHeavy Equipment 122,300 731250 134.300 137.700 135.000 660.550 18 Compuler Software 8 Hardware Replacements 8 Upgrades 0
6 Replace Buses (Federal Grant $1 .000,000) 1.286,000 2.030.000 3.376.000 fWaintenance
16 ResuAace Muni Building Parking 14,000 14.000
15 Replace Caipat in Muni Building 25.000 25.000
14 Street Furnitwe Replacement 20.000 20.000 20,000 20.000 20.000 100.000
17 Bus SheRerReplacemenlProgram 20.000 20,000 20,000 20.000 20,000 100.000
lo Parking Structure Capital Maintenance 204.857 183.000 180,000 795,000 520,000 1,282,857
9 Capital StreetMaintenance 570,000 175,000 270.000 175,000 475.000 1.665,000
7 Emergency Building Maintenance 25,000 25.000 25,000 25.000 25.000 125.000
StreM Reconstruction
s GolfCourseArea 1,500,000 .1,500,000
S Matlerhorn • 900,000 900.000
8 Lionsridge Area 2,412,000 2,412,000
S Vail Valley Drive 2,150,000 2,150,000 S East Vail - Bridge Rd 2,290,000 2.290,000
8 East Vail - Meadow Lane 2,093,000 2,093.000
A WB51 Vall 0 2.100,000
Building Improvements
i i Town Shop AAaintenance Improvemenb 675,000 2,100.000 200.000 2.100,000 3.815.000 8,890.000 1.255.000
8ridge Construction •
Pulis Bridge ' 120,000 120.000
Covered Bridge Restoration • 773,000 173.000
Chapel Bridge • 40,000
Other Improvements
21 Relocate Checkpoint Charlie 315.000 315.000
22 Install New Bus Shelters 9 20,000 20,000 20,000 20,000 20,000 100.000
21 Fire Dept - Diesel Exhaust System Station I 8 II 22.513, 18.705 40,618
1 ADA Compliance 50.000 50,000 50,000 50,000 50,000 250,000
20 Fountain BacMlow 19.528 19,528
Io Street Light Improvemerrt Program 50,000 50,000 50,000 50,000 50.000 250,000
12 Droinagelmprovements 144,000 100.500 113,400 120,600 163,600 642.100
. JS News Paper Dispensers 35.000 19.000 16,000 70,000
Ice Arena Pedestrian Chute • 65,000 65.000 .
East Lionshead Bus Shop ' 60.000 60.OQ0
9ald Mountain Bus Stop ' 87,194 87,194
Automate East Vail Interchange ' 9.900 •
Interehange Improvements
25 West Vail Roundabout 100,000 1.900.000 2.000.000
24 AAain Vail Roundabout and Landscaping 1,800,000 1.900.000
27 Simba Run Underpass (fOV's Portion 30 250,000 750,000 1.000,000
AAaster Planning
28 l,and Use Plan 100.000 100.000
29 Lionshead Master Plan and Design Guidelines 80,000 80.000
30 SDD Consulling Work 30,000 30.000 Update Design Guidelines 60,000 60,000
ProjectAAanagement ' 200.000
TOTAL OF THE ABOVE PROJECTS 8.944292 0,4 5 5.392,700 5,953,300 7,701.600 35.8 8,477 3,355.000
Transterfor Debt Service 1,468.651 1,182.080 1,292,542 1.441,562 1.550.887 6.935322
Total Expendilures 1,412.943 . 8.565 ,685242 7,394,862 9,252.487 42,764.19
Revenue Over(Under) ExpendMures (3.529.418) (2.068,851) 255J72 (107,553) ' (1,291,900) (6,492,650)
Beginning Fund Balance 5202217 1,672.799 (396,052) (140.880) (248.433)
Fnding Fund Balance 1,672,799 (396,0521 (140,880) 48,4931 175603_ )
CIP951 WK4 1 _
11 /15/94
~ RETT Budget
(Recommended)
1995 1996 1997 1998 1999 Total
RETT Revenues
Real Estate Tiansfer Tax 1,700,000 1,700,000 1,700,000 1,700,000 1,700,000 8,500,000
Trensfer from VRD 90,000 95,000 100,000 105,000 110.000 . 500,000
Rotiforwazds from 1994 395.838 395,838
Lottery Revenue 14,000 14,300 14,600 14,900 15,000 72,800
Interest Income 70,000 58.500 58,500 58,500 58,500 304.000
Recreation Amenity Fee 30,000 30,000 30,000 30,000 30,000 150,000
Total RETT Revenues 2,299,838 1,897,800 1,903,100 1,908,400 1,913,500 9,922,638
RETT Expenditures
Matntenance
Rec Path Maintenance 120,000 103,000 108,000 113,000 119.000 563,000
Park Maintenance 150,000 160.000 166,000 175,000 185,000 836.000
Subtotal Maintenance 270,000 263,000 274,000 288,000 304,000 1,399,000
Pathways
Dowd Junction Path 50,000 , 50,000
Vail Trail Safery ' 2,200 2,200
Ford Park Bike Path ' 15.000 140,000 155,000
West Vail Bike Path ' 200,000 200,000
Lionshead Access Path • 26.000 26,000
S. Frontage Road Path 175,000 500,000 675,000
Vail Valley Drive Bike Lanes 780.000 780,000
Sunburst Shoulder 135.000 135,000
Vail Das Schone Bike Path 15,000 120,000 135,000
Library Path 0 115,000 115,000
Ford Park Walkway/Lights 78,000 78,000
North/South Trail 30,000 150.000 300.000 550,000 1,030,000
Subtotal Pat6ways 572,200 550,000 1,268,000 300,000 691,000 3,381,200
Park improvements
Ford Pazk Master Plan 30.000 30,000
Pirate Ship Park * 41,000 41,000
Covered Bridge Pocket Park • 11,500 11.500
Dowd Junction Land ]mp " 8,500 8,500 t
Playground Safety Improvemenu 75,000 65,000 32.500 172,500
Back Flow Prevention 15,000 15,000
Big Horn Improvements 45,000 45,000
Donovan Park Improvements 50,000 375,000 425,000
Irrigation Control 60,000 60,000
Buffehr Creek Tot Lot 18,000 18,000
Stephens Pazk Improvements 50,000 50,000
Lionshead TotLot 85,000 859000 '
Subto[al Park Improvements 141,000 65,000 117,500 50,000 478,000 961,500
Open Lands
Property Acquisi[ion 150,000 0 0 0 0 150,000
Debt Service
Golf Course Note 340.432 340,432 340.432 340,432 340.432 1,702,760
Debt Service on Open Lands ? ? ?
Transferto CIP(Note Payable) 535.120 572,189 1,107,309
Subtotal Debt Service 875,551 912,621 340,431 340,432 340,432 2,809,469
Totsl 2,108,752 1,790,621 2,009,932. 978,432 1,813,432 8,701,169
Suplus (Deficit) 191,086 107,179 (106,832) 929,968 1003068 ERR
Beginn[ng Fund Balance 956,669 1,147,755 1,2549934 1,148,102 2,078,070
Endtng Fund Balance 1,147,755 1,254,934 1,148,102 2,0789070 2,178,138
RETTCIPI.WK4 11/14/94
,
ORD9NANCE F90. 25
SERIES OF 1994
Town OF VA9L CABLE TELEVISION FRAiVCH9SE ORDlNANCE
1. This chapter shall be known as the Cable Communications Urdinance.
2. PURPOSE
The purposes of this ordinance are:
a. Provide for the franchising and regulation of cable television within the Town
of Vail.
b. Provide for a cable communications system that wrill meet the current needs
of the Town and that can be improved and upgraded to meet future needs.
c. Provide for the payment of fees and other valuable consideration to the
Town for the use of the public ways and for the privilege to construct and operate cable
communications systems.
d. Provide for the regulation by the Town of certain rates to be charged to
subscribers for certain cable communications services, as permitted by law.
e. Provide for the development of cable communications as a means to
improve communication between and among the members of the public and public institutions
of the Town.
f. Provide remedies and prescribe by penalties for violatipn of this ordinance
and any franchise granted hereunder.
3. APPLICABILITY
This ordinance is applicable to any application for a cable franchise o;r;frartcti#se
re~~uv~l filed on or after the effective date of this ordinance and to any such franchise c~ir.r~I~evual
g;Carrthereafter.
4. DEFINITIOIVS
For the purpose of this ordinance the following terms, phrases, words and the
derivations shall have the meanings given herein. VVhen not inconsistent with the context, words
used from the present tense include the future, words in the plural number include the singular
and words in the singular number include the plural number. The word shall is mandatory and
the word may is permissive. NVords not defined shall be given their common and ordinary
meanings.
a. "Access channel" shall mean any channel set aside for public use,
educational use, or governmental use without a channel use charge.
1
Ordinance No. 25, Series of 1994
b. "Access user" shall mean any person or entity entitled to make use of an
access channel consistent with the intended purpose of the channel.
c. "Application" shall mean a proposal seeking authority to construct and
operate a cable communications system within the Town pursuant to this ordinance. It shall
include the initial proposal plus aii related subsequent amendments and correspondence with the
Town.
d. c~k~l~ ~erv~c~"' me0~S; Ahy ; ~e~iice ~er ~rtt~~h ~ncMudes;; th
e
retr~rtsmESSran of tdc~fi;bra~~d~as t telev~stc~n signaf5, ar!as the ~rm;rnay be ~edefrr~ed by Title 4"~
di the United ~Cn+de ~nd Federal edmmLainj~tians ~orr~rr~iss;it~n i~eg~I~tiaMS:
e• "cdble;:Service" shall mean the one way transmission of video programming
and associated non-video signals to subscribers together with subscriber interaction, if any, which
is provided in connection with the video programming.
f. "Cable communications system" or system shall mean a non-broadcast
facility consisting of a set of transmission paths and associated signal generation, and reception
and control equipment, under common awnership and control, that distributes or is designed to
distribute to public subscribers cable television services, institutional services, or other
communications services, but such terms shall not include:
1) A facility or cornbination of facilities that serves only to retransmit the
television signals of one or more television broadcast signals;
2) A facility or combination of facilities that serves only subscribers in one
or more multiple unit dwellings under common ownership, control, or management, unless such
facility or facilities use any public right-of-way;
3) A facility of a common carrier which is subject, in whole or in part to the
provisions of Title II of the Communications Act of 1934, as amended; except that such facility
shall be considered a cable system [other than for the purposes of 47 U.S.C. 541(c)] to the extent
such facility is used and the transmission of video programming directly to subscribers; or
4) Any facilities of an electric utility used solsly for aperating its electric
utility system.
g. "Town" is the Town of Vail, Colorado.
h. "Channel" shall mean six (6) Megahertz (Mhz) frequency band which is
capable of carrying either one standard video signal, a number of audio, digital or other non-video
signals or some combination of such signals and which is at least six (6) Mhz wide.
2
Ordinance No. 25, Series of 1994
i. "Connection" shall mean the attachment of the drop to the radio or
television set or other communication device of the subscriber.
j. "Converter" shall mean an electronic tuning device which converts
transmitted signals to a frequency which permits the reception on an ordinary television receiver.
k. "Council" or "Town Council" shall mean the governing body o the Town of
Vail.
1. "Drop" shall mean the cable that connects a subscriber's terminal to the
nearest feeder line of the cable communications system.
M. "Easement" shall mean a right to use all public rights-of-way including public
utility easements.
n. "Feeder line" shall mean the coaxial or fiber optic cable running from the
trunk line to line extenders and taps for the purpose of interconnection to individual subscribers.
o. "FCC" shall mean the Federal Communications Commission.
p. "Franchise" shall mean the non-exclusive right and authority to construct,
maintain, and operate a cable communications system through use of the public streets,
dedications, public utility easements, or other public right-of-way or public places in the Town
pursuant to a contractual agreement executed by the Town and a Franchise.
q. "Franchisee" or "Grantee" refers to an entity authorized to construct, or
operate, or both, a cable communications system within the Town pursuant to this chapter
including any lawful successor, transferee, or assignee of the original Grantee.
r. "'~rsncti.~s~ ~gr0~mertt" rnqans a firancM~ge gr~t brtlir~~nce con#rttctu,al;
agreement; c~nta~ning ;the spoc,fiic!;provia,ans df tMe fir~r~chi~se grantbd,;: irtcludint~ referer~ces;
S~~Glf1G~~10f1S, requ~remer~~s ~nd other re~ated matters'
s. Tranc~ise fee" me~ns any ar assessment af any krnd ,mp~osed ~y.:a
franchisrng authbrity dl~;~ gr8r~tee ~S cor~ponsatr~r1 #or;the g~~nte~use of the ;publEC ~ights of
way "Ch~ te~rn ~fran~h~s~ do0s nat In;clude:
~ny;fi~, fea ~r assessrtitent af gerteral appti. ~bility (rn~lc~d~r~g;ar~y such
ar;;assessrner~t':~mpase~i an bQth utrlrt~es: and cabl~ 4Rera#cirs or their s~rvices, buf riot
~nclud~ng a tax, fiee or ~ss~ssment wch 1~ unduly;d~scrimina~ory against c~b~e operators or cable
sut~;scr~ib:~~5 ;
,
ots . tt
c
~
~uf;~Ec dre r~quEred b3r the franc~iis~ b~ i~cutred :by
grantee #ar.<publEc, educ0tiQt~alor ga~rerRrn;0nt~l $ccess fa.cilItiM;
3
Ordinance No. 25, Series of 1994
I!eau1rqments or 0harges ~n;cIdsrital ta th;e A~rardnng or enfiarc~ng of the
frartch~seInclu~lJng ;p~ym~rtt~ for bdn~ls, ';securi~y fur~ds, tette~s af cr~tlr~, Ensurance;;
irtdemnif~~atrbn; ;pe~laltie5, or;.liqu~d~ted da mages, or
(4) Any fee irnposed qnder Trtle 17, U
nEte...d Ses CoCle;:
t. 'Gra~::reven;ues" ~riea~ts tl~e arinual grc>ss r~ce~pts rec~rued by ~~r~rtf~~
from alf sa;urces;o# o#~er~~EC~ris of fihe ~abfe '~ele~risian ~ysfierri wtithirt the 'Cow+n ~a;til1zrr~g; #h0'pu~lic
streefis arid nghts of vt~ay fcar',<avh~rch'a #rartchise is requir~~i Ir~>order to d~li!~r6r Suc~i cMb(e ser~re
excliudmg; ref~andable ~i'epd5its, rebates ar cre~~ts, except that any sa1~~,'exc~se or other fi~es 6r
~hArges coll~cted f~r ;~rect pass through ta I~ca~, ~tate br F~deral g~vernrnerit, ather thar~;the
firariehIse. fsha11 not;;be Includ,e~
U. "Installation" means the act of connecting the system from the feeder cable
to the subscriber's receiver so that the installation is to the subscriber's terminal or receiver.
v. "Institutional services" shall mean one and two way non-entertainment
transmission services for businesses, public agencies and community institutions. Such services
include, but are not limited to, video transmission and voice and data communications.
w. "Leased channel" or "leased access channel" shall mean any channel or
part of a channel, available for commercial use on a fee basis by persons or entities other than
a Franchisee.
X. "Monitoring" shall mean observing a communications signal carried on a
cable communications system, or the absence of such a signal, by any persan without regard to
whether such observation is by visual or electronic means. Monitoring shall not include system-
wide sweeps of the cable communications system for purposes of verifying the integrity of the
system and controlling return path of the transmissions.
Y. "Pay Television" shall mean the delivery over the system of per channel
audio-video signals to subscribers for a fee or charge in addition to the charge for basic service.
Z. "Person" shall mean any person, firm, partnership, association, corporation,
company, or organization of any kind.
aa. "`F'6blic, <e~duc~tianal:;or governrnental ~GC~s$; fac~l~ties" 4r "P~C~ access
fac~lities" rne~ns tbtal ~f the ~olMo~mg:
(1), ~h~ne! c~pa ~~ty designat+~d for nor~co~imer~ial public, edu:~fiiart~:E;
or g~verrtrn:eht um ~cl
Fact)rt~es an~d ~pmerit for ti~e use ~Vsu~ch~ ct~'ar~rtel capadr~r
4
Ordinance Na. 25, Series ot 1994
bb. '`S~rvECe area" ar ',;~ran~faise area" ar~s the erifi~re g~Qgrapttibal area
wrttiirt the!!Towti>' as tt is r~ouv c0nstituted o~ rrtay in tlie future be ;c~ns~ituted; iarlless> t~#h~~vise,
sPecrf~~d hthe fran~h'ise br' perm3t:
cc. "Service tier" shall mean a specific set of cable subscriber services which
are made available as, and only as, a group for purchase by subscribers at a specific rate for the
group.
dd. "Street" or "public way" shall mean the surface and the space below and
above any public street, road, highway, path, sidewalk, alley, court, or easement now or hereafter
held by the Town for the purpose of public travel or public utilities and shall include public
easements or rights-of-way.
ee. "Subscriber" shall mean a recipient of cable television service or other
services provided over a cable communications system.
dd. "User" shall mean a party utilizing a cable communications systems facility
for the purpose of production or transmission of material or information to subscribers.
5. REQUIREMEfVT OF A FRANCHISE
It shall be unlawful to construct, install, maintain, or operate a cable
communications system or part of a cable communications system within the Town without a valid
franchise obtained in accordance with the provisions of this chapter.
6. GENERAL FRAiVCHISE CHARACTERISTICS
Any franchise issued in accordance with the provisions of this chapter shall be
deemed to:
a. Authorize use of the public ways for installing cables, wires, lines and other
facilities in order to operate a cable communications system, but shall neither expressly nor
implied be deemed to authorized the Grantee to provide service o, or install cable, wires, lines,
or any other equipment or facilities upon private property without owner consent, or to utilize
publicly or privately owned utility poles or conduits without a separate agreement with the owners
therefore;
b. Be non-exclusive, and shall neither expressly nor implied be deemed to
preclude the issuance of subsequent franchises to operate one or more cable communications
systems within the Town; and
c. Convey no property right to the Franchise or right to renewal except as
required by Federal and State law.
5
Ordinance No. 25, Series of 1994
7. FRAiVCHISE AS A COfVTRACT
A franchise issued pursuant to the provisions of this chapter shall be deemed to
constitute a contract between the Franchisee and the Town. The Franchisee shall be deemed
to have contractually committed itself to comply with the terms, conditions, and provisions of the
franchise documents, and with all rules, orders, regulations, and determinations applicable to the
franchise which are issued, promulgated, or made pursuant to the provisions of this chapter.
8. COIVFLICTS
a. All terms, conditions and provisions of this chapter and the application for
a franchise shall be deemed to be embodied in a franchise, and conflicts in terms, conditions or
provisions between these documents shall be resolved as follows:
1) The express terms of this chapter shall prevail over conflicting or
inconsistent provisions of the franchise;
2) The express terms of the franchise shall prevail over conflicting or
inconsistent provisions in the application and any request for proposals; and
3) The express terms of any request for proposals shall prevail over
conflicting or inconsistent provisions in the application for the franchise.
b. The provisions of the franchise shall be liberally construed in order to
effectuate its purposes and objectives consistent with this chapter and the public interest. In the
event one or more provisions of the franchise or this chapter or subsequently found to be
unlawrful, null and void or unenforceable, the Town shall, at its sole option, have the right to
consider said provisions severed from the franchise so as to continue the franchise's
effectiveness, in accordance vuith the terms of this chapter. Any franchise agreement will be
construed under the faws of the State of Colorado.
9. Franchisee SUBJECT TO POLICE POWER
A Franchisee shall, at all times during the life of a franchise, be subject to all lawful
exercise of the police power by the Town and through such lawful regulations as the Town shall
hereafter enact. The construction, operation, and maintenance of the system shall also be in full
compliance with all other applicable rules and regulations now in effect or hereafter adopted by
the United States, the State of Colorado, or any agency of said governments.
10. FRAfVCHISE VALIDITY
A Grantee shall agree, by the acceptance of a franchise, to accept the validity of
the terms and the conditions of this ordinance and the franchise in their entirety and that the
Grantee will not, at any time in any claim or proceeding, challenge any term or provision of this
6
Ordinance No. 25, Series of 1994
ordinance or the franchise as unreasonable or arbitrary or argue that the Town did not have
authority to impose such term or condition.
11. FILING OF APPLICATIOIVS
Applications for a cable communications franchise will be considered pursuant to
the following procedures:
a. An application may be filed at any time or pursuant to a request for
proposals issued by the Town.
b. Upon the filing of an application, the Town shall publish notice of the filing
in a newspaper of general circulation in the Town. Any person wishing to submit any comment
on the application shall, within fifteen (15) days of the date of notice of the first application, file
such comment with the Town Manager.
c. All applications to be acceptable for filing must be accompanied by a filing
fee of ten thousand sixty dollars ($10,060). The Town shall apply all filing fees received against
all costs associated with its evaluation of any pending applications pursuant to this chapter. In
the event that total costs are less than the total filing fees, the Town shall refund a portion of the
filing fee on a prorated basis for each Applicant within forty-five (45) days after franchise grant.
The Town shall furnish applicant with documentation of all costs incurred at that time.
12. COfVTEfVT OF APPLICATIONS
To be acceptable for filing, an application must conform to any applicable request
for proposals and all the information specified therein. Where an application is not filed pursuant
to a request for proposals shall contain at minimum, the following information:
a. Indemnification of the ownership of the Applicant, if not a natural person,
including the names and addresses of all persons with one (1) percent or more ownership interest
and the ultimate controlling natural persons and identification of all officers and directors and any
other primary business affiliation of each.
b. An indication whether or not the Applicant, or any entity controlling the
Applicant, including any officer of the corporation or a major stockholder thereof, has been
adjudged bankrupt, has had a cable franchise revoked, or been found guilty by any court or
administrative agency in the United States of:
1) A violation of a security or antitrust law; or
2) A felony or any other crime involving moral turpitude. Identify any such
person or entity and fully explain the circumstances.
7
Ordinance No. 25, Series ot 1994
c. A demonstration of the Applicant's technical and financial ability to construct
and operate the proposed cable facility.
d. A description of the physical facility proposed, including channel capacity
including one way and two wray, if any, the area to be served, a summary of technical
characteristics, and head end and access facilities.
e. A description relating how any construction will be implemented,
identification of areas having above ground or below ground cable facilities, the proposed
construction schedule, and a description where appropriate, indicating how service will be
converted from any existing facility to a new facility.
f. A description of the services to be provided over the system, including
identification of television signals, both broadcast and non-broadcast, to be carried and all non-
television services to be provided initially. Where service will be offered by tiers, identify the
signals or services, or both, to be included on each tier.
g. The proposed rates to be charged, including rates for each service tier, as
appropriate, and charges for installation, converters and other services.
h. Information as necessary to demonstrate compliance with all relevant
requirements contained in this chapter.
i. A demonstration stating how the proposal is reasonable to meet the future
cable related community needs and interests. In particular, the application should describe how
the proposal will satisfy the needs as analyzed in any recent community needs assessment
commissioned by the Town.
j. A demonstration how the proposal was designed to be consistent with all
federal and state requirements.
k. Pro forma financial projections for each year of the franchise term. The
projections shall include a statement of income, balance sheet, statement of sources and use of
funds, and schedule of capital additions. All significant assumptions shall be explained in notes
or supporting schedules set accompanying the projections.
1. A complete list of all cable communications systems in which the Applicant
or a principle thereof holds an equity interest.
M. An affidavit of the Applicant or duly authorized officer thereof certifying, in
a form acceptable to the Town, the truth and accuracy of the information contained in the
application.
8
Ordinance No. 25, Series of 1994
n. In the case of an application by an existing Franchisee for renewed
franchise, a demonstration that said Franchisee has substantially complied with the material terms
of the existing franchise and with applicable law.
o. Any person who files an application with the Town for a cable
communications franchise shall forewith, at all times, disclose to the Town, in writing, the names,
addresses, and occupations of all persons who are authorized to represent or act on behalf of
the Applicant in those matters pertaining to the application. The requirement to make such
disclosure shall continue until the Town shall have rejected an Applicant's application or until an
Applicant withdraws its application.
13. CONSIDERATIOfV OF APPLICATIOfVS
a. The Town shall consider each application for a franchise with the
applications found to be acceptable for filing and in substantial compliance with the requirements
of this chapter and any applicable request for proposals. In evaluating an application, the Town
will consider, among other things, the Applicant's past service record in other communities, the
nature of the proposed facilities and services, including rates to be charged therefor, and whether
the proposal is adequate to meet the future cable related community needs and interests of the
citizens of the Town. VVhere the application is for a renewed franchise, the Town shall consider
whether:
1) The cable operator has substantially complied with the material terms
of the existing franchise and writh applicable law;
2) The quality of the operator's service, including signal quality, response
to consumer complaints, and billing practices, but without regard to the mix quality, or level of
cable services or other services provided over the system, has been reasonable in light of
community needs;
3) The operator has the financial, legal and technical ability to provide the
services, facilities and equipment as set forth in the operator's proposal; and
b. VVhere the Town determines that an Applicant's proposal, including the
proposed service area, would serve the public interest, and may grant a franchise to the
Applicant. The franchise agreement will constitute a contract, freely entered into, between the
Town and the Grantee. Said franchise agreement shall incorporate by reference the relevant
provisions of this chapter. Any such franchise must be approved by ordinance of the Town
Council pursuant to the ordinances of the Town and the Charter of the Town.
9
Ordinance No. 25, Series of 1994
c. In the course of considering an application for renewed franchise, the
Council shall hold a public hearing, consistent with the provisions of 47 U.S.C., Section 626 as
existing or as may from time to time be amended.
d. A franchise granted pursuant to this chapter shall not take effect until the
Applicant pays a grant fee to the Town. The grant fee shall be equal to the Town's reasonable
direct costs in the franchising process, less the application filing fee received. The Town shall
provide the Grantee a statement summarizing such costs prior to the execution of the franchise.
14. ACCEPTAIVCE
A franchise and its terms and conditions shall be accepted by a Grantee by written
instrument, in a form acceptance to the Town Attorney, and filed with the Town Clerk within thirty
(30) days after the granting of the franchise by the Town. In its acceptance, the Grantee shall
declare that it has carefully read the terms and conditions of this ordinance and the franchise and
accepts all of the terms and conditions of this ordinance and the franchise and agrees to abide
by same. In accepting a franchise, a Grantee shall indicate that it has relied upon its own
investigation of all relevant facts, that it was not induced to accept the franchise and that it
accepts all reasonable risks relating to the interpretation to the franchise.;
15. FRAiVCHISE TERM
The term of a franchise shall be as specified in the franchise agreement, but it shall
not exceed fifteen (15) years. If a Franchisee seeks authority to operate a cable system in the
Town beyond the term of its franchise, it shall file an application for a renewed franchise not later
than thirty (30) months prior to the expiration of its franchise.
16. FRANCHISE FEE
a. The Franchisee in consideration of the privilege granted under a franchise
for the use of the public ways and the privilege to construct and operate a cable communications
system, shall pay to the Town five (5) percent of its annual gross revenues or~:;;i~ more;:ttiarifii~e
perc~n~ (5°~0~ is p~rmit#ec3 by;l~~+, tli~ ~rnount prvvEded ~rt ttie ftanCl~~so agreOmenfi for the terrri;
'o.f!`:thie;;;;f;ranGh ise;:
b. A Franchisee shall file with the Town, thirty (30) days after the last day of
each quarter, a financial statement showing the gross revenues received by the Franchisee during
the preceding quarter. A Franchisee shall pay the quarterly portion of the franchise fee to the
Town on or before the time such financial statement is due to be filed. UVith each payment
required by this Section 902 the Franchisee shall submit a vuritten statement, signed and certified
by the Franchisee to be true and correct, shouving for the immediately preceding calendar quarter 10
Ordinance No. 25, Series of 1994
the amount of gross revenues, the amount of a!I revenues derived from the system and an
itemization of all permissible deductions therefrom to arrive at gross revenues. The Franchisee
shall also submit to the Town on or before the 30th day following the end of each calendar year
and following the expiration or termination of this franchise a written statement, signed and
certified by the Franchisee to be true and correct, showing for the immediately preceding year or
partial year, as applicable, the amount of gross revenues, the amount of all revenues derived from
the system and an itemization of all permissible deductions therefrom to arrive at gross revenues.
The Town shall have the right on thirty (30) days notice to the Franchisee to demand that the
annual statement be certified to be true and correct and in compliance with the requirements of
this ordinance by both the Franchisee and an independent certified public accountant in
accordance with sound and accepted accounting practice. The statements referred to in this
subsection shall be in such form and style and contain such details and information as the Town
shall reasonably designate. The acceptance by the Town of payments or reports thereof shall
be without prejudice and shall not constitute a waiver of the Town's right to claim a deficiency in
the payment of franchise fees or to audit the Franchisee's books and records, as hereinafter set
forth.
c. Upon five (5) days prior written notice to the Franchis2e, the Town shall
have the right to cause a complete audit to be made of the books and records of the Franchisee
with respect to the System. If the results of such audit show that the Franchisee's statement of
gross revenues for any period ending not more than three (3) years prior to the commencement
of the audit has been understated by three (3%) percent or more, then the Franchisee shall pay
the Town the cost of such audit, any deficiency payment shown by such audit to be due and
interest thereon at the agreed rate. A report of the findings of the Town's accountant shall be
binding and conclusive upon the Franchisee and the Town.
d. In the event that any franchise payment is not received by the Town on or
before the applicable date, interest shall be charged from such due date at an annual interest rate
then chargeable for unpaid federal income taxes (26 U.S.C., Section 6621). In addition to the
foregoing, the Franchisee shall pay a late charge of five (5) percent of the amount of such
payment. Interest and late charges will not be chargeable to the Franchisee for additional
payment required under the yearly adjustment, provided that such payment does not exceed ten
(10) percent of the total monthly payments made during the year. In the event such payment
exceeds ten (10) percent, the Franchisee shall be liable for interest and late charges for the entire
amount. ,
11
Ordinance No. 25, Series of 1994
e. In the event a franchise is revoked or otherwise terminated prior to its
expiration date, the Franchise shall file with the Town, within ninety (90) days of the date of
revocation or termination, an audited financial statement showing the gross revenues received
by the Franchisee since the end of the previous year and shall make adjustments at that time for
the franchise fees due up to the date of revocation or termination.
17. IiVSURANCE. BOIVDS, IiVDEMNITY
a. Upon the granting of a franchise and following simultaneously the filing of
the acceptance of the franchise and at all times during the term of the franchise including the time
for removal of facilities or management as a trustee as provided for herein, the Franchisee shall
obtain, pay all premiums for, and deliver to the Town written evidence of payment of premiums
for and the originals of the following:
1) A general comprehensive public liability policy or policies indemnifying,
defending, and saving harmless the Town, its officers, boards, commissions, agents, or
employees from any and all claims by any person whatsoever, including the costs, defenses,
attorneys fees, and interest arising therefrom on account of injury to or death of a person or
persons occasioned by the operations of the Franchisee under the franchise herein granted, or
alleged to have been so caused or occurred, with a minimum liability of one million dollars
($1,000,000) per personal injury or death of any one (1) person and three million dollars
($3,000,000) for personal injury or death, of any tvvo (2) or more persons in any one (1)
occurrence. The policy shall be endorsed adding coverage against all claims for personal injury
liability offenses.
2) A property damage insurance policy or policies indemnifying, defending,
and saving harmless the Towrn, its officers, boards, commissions, agents, and employees from
and against any and all claims by any person whatsoever, including the costs, defenses,
attorneys fees, and interest arising therefrom, for property damage occasioned by the operation
of the Franchisee under the franchise herein granted, or alleged to have been so caused or
occurred, with a minimum liability of five hundred thousand dollars ($500,000) for property
damage to the property or any one (1) person and one million dollars ($1,000,000) for property
damage to the property of twro (2) or more persons in any one (1) occurrence. '
3) A performance bond or bonds in favor of the Town with good and
sufficient surety approved by the Town in the sum set forth in the franchise agreement
conditioned upon the faithful performance and discharge of the obligations imposed by this
ordinance and the franchise awarded hereunder from the date hereof. The amount of the bond
12
Ordinance No. 25, Series of 1994
may be reduced as any construction that is required is completed, consistent with the franchise
agreement.
b. The bond requirements set forth above shall no longer apply upon
completion of construction and inspection by the Town as follows:
(1) Franchisee shall give notice to the Town at such time as Franchisee
has completed the construction.
(2) Upon receipt of notice, the Town shall have sixty (60) days to receive
a written report from an independent engineer; provided, however, if the Town fails to receive
such a written report within the sixty (60) days the completion of construction shall be deemed
to have taken place, unless the failure to receive such a report is due to unforeseen events, acts
of God, or events beyond the reasonable control of the Town.
(3) fVotwiithstanding anything to the contrary, the Town may condition
completion of the construction upon receipt of a written report from an independent engineer. The
completion of the system upgrade or system rebuild shall not be deemed to have taken place until
the independent engineer reports the following:
(a) All construction or improvements contemplated by the
Franchisee have been completed or otherwise satisfactorily resolved;
(b) Satisfactory test results using the technical standards f..or;~d'b16
sY.t~~~ e,stabEls:hed b~ #h:e FC~ at up to ten (10) widely separated subscriber drops selected by
the independent engineer.
c. All bonds and insurance policies called for herein shall be in a form
satisfactory to the Town Attorney. The Town may at any time, if it deems itself insecure, require
a Franchisee to provide additional sureties to any and all bonds or to replace existing bonds with
new bonds for good and sufficient surety approved by the Town.
d. A Franchisee shall, at its sole cost and expense, indemnify and hold
harmless the Town, its officials, boards, commissions, agents and employees against any and
all claims, suits, causes of action, proceedings, and judgments for damage arising out of the
operation of the cable communications system by Franchisee under the franchise. These
damages shall include, but not be limited to, penalties arising out of copy right infringements and
damages arising out of any failure by Franchisee to secure consent from the owners, authorized
distributors and licensees or programs to be delivered by the Franchisee's communications
system whether or not any act or omission complained of is authorized, allowed, or prohibited by
the franchise. Indemnified expenses shall include, but not be limited to, all out-of-pocket
13
Ordinance No. 25, Series of 1994
expenses, such as costs and attorneys fees, and shall also include the reasonable value of any
services rendered by the Town Attorney or his or her assistants or any employees of the Town.
e. fVo Franchisee shall permit any policy or bond to expire and the Franchisee,
not less than thirty (30) days prior to its expiration shall deliver to the Town a substitute renewal
or replacement bond or bonds in conformance with the provisions of this ordinance.
18. LETTER OF CREDIT
a. The Town may at its discretion require that a Franchisee obtain a letter of
credit. VVhen and if the Town should so require, the Franchisee shall deposit with the Town a
letter of credit from a financial institution approved by the Town in the amount of fifty thousand
dollars ($50,000). The letter of credit may not be revoked or terminated during the term of the
franchise except with the written approval of the Town. The form and the content of such letter
of credit shall be approved by the Town Attorney. The letter of credit shall be used to insure the
faithful performance by the Franchisee ofi all provisions of the franchise and of this ordinance;
compliance with all orders, permits, and directions of any agency, commission, board, department,
division, or office of the Town having jurisdiction over its acts or defaults under this license; and
the payment by the Franchisee of any claims, liens, and taxes due the Town or other
municipalities which arise by reason of the construction, operation or maintenance of the system.
b. The letter of credit shall be maintained by the Franchisee at twenty five
thousand dollars ($25,000) during the entire term of the franchise as the Town may require, even
if funds are drawn against it pursuant to this ordinance.
c. The letter of credit shall contain the following endorsement:
"It is hereby understood and agreed that this letter of credit may not be
cancelled by the surety nor the intention not to renew be stated by the surety until thirty (30) days
after the receipt by the Town Attorney, by certified mail, of a written notice of such intention to ~
cancel or not to renew."
d. At the Town's option it may draw against the letter of credit for any unpaid
liquidated damages, franchise fees, or other amounts owing to it under the franchise which are
thirty (30) days or more past due. The Town shall notify the Franchisee in writing at least ten (10)
days in advance of drawing upon the letter of credit.
19. LIQUIDATED DAMAGES
In the event that the Town finds the Franchisee is in violation of any material
obligation under this ordinance or the franchise, the Town shall notify the Franchisee in writing
of such apparent violation and require the Franchisee to cure the default within a reasonable time.
14
Ordinance No. 25, Series of 1994
The Franchisee shall respond in writing to the notice of violation within ten (10) working days from
receipt of such notice setting forth the steps taken to correct or propose to correct the violation.
The Town may extend the time for such response upon a showing of just cause by the
Franchisee. Franchisee may, within three (3) days of receipt of such notice, notify the Town that
there is a dispute as to whether a violation or failure has in fact occurred. Such notice by the
Franchisee to the Town shall specify with particularity the matters disputed by the Franchisee and
shall stay the running of the above described time. The Town shall hear the Franchisee's dispute
at a regularly scheduled meeting within a reasonable period of time. If after hearing the dispute,
the claim is upheld by the Town, Franchisee shall have five (5) days from such a determination
to remedy the violation or failure.
The Town may assess penalties as follows:
a. Up to one hundred dollars ($100) per day for construction related violations.
b. Up to fifty dollars ($50) per day for recurring violations.
c. Up to five hundred dollars ($500) for other violations.
The penalties set forth herein are in addition to all other rights of the Town whether
reserved by this franchise ordinance or authorized by law and no action, proceeding or exercise
of a right with respect to such penalty shall affect any other right the Town may have.
20. FORFEITURE AND TERAIIIfVATION
a. In addition to all other rights and powers retained by the Town under this
ordinance and any franchise issued pursuant thereto, the Town reserves the right to forfeit and
terminate the franchise and all rights and privileges of the Franchisee in the event of substantial
breach of its terms and conditions. A substantial breach by the Franchisee shall include, but shall
not be limited to, the following:
1) An uncured violation of any material provision of this ordinance or
franchise issued thereunder, or any material rule, order, regulation, or determination of the Town
made pursuant thereto;
2) An attempt to evade any material provision of the franchise or practice
of any fraud or deceit upon the cable communications system customers and subscribers or upon
the Town;
3) Failure to begin or substantially complete any system construction or
system extension as set forth in the franchise;
4) Failure to provide the mix, quality, and level of services promised in the
application or specified in the franchise or a reasonable substitute therefor;
15
Ordinance Na. 25, Series of 1994
5) Failure to restore service after ten (10) consecutive days of interrupted
service except when approval of such interruption is obtained from the Town;
6) Material misrepresentation of fact in the application for, or during
negotiation relating to, the franchise;
7) Failure to provide surety and indemnity as required by the franchise or
this chapter.
b. The Franchisee shall have no liability to the Town, nor shall the Town have
the right to terminate or revoke this franchise or invoke penalties in accordance with Section 19
of the Cable Ordinance as a result of any failure of the Franchisee to perform, or delay by
Franchisee in the pertormance of, its obligations hereunder (other than to pay the franchise fee
and other payments required by this Agreement) if such failure or delay is caused by factors
beyond the control of the Franchisee, including without limitation, any flood or other Act of God,
laws, regulations, rules or orders of any governmental agency, sabotage, strikes, lockouts or job
actions, failure or delay in transportation or the unavailability of any product or material necessary
to the performance hereof; provided that Franchisee has exercised all due care to prevent the
occurrence of such events which are reasonably foreseeable, including without limitation, actively
pursuing alternative products, materials and means of transportation. In the event that delay in
pertormance or failure to perform affects only part of Franchisee's capacity to perform, then the
Franchisee shall perform to the extent it is reasonably able to do so. The Franchisee agrees that
the excuse for nonperformance under this Section shall last only so long as the act which
excuses performance under this Section shall continue without interruption. In correcting any
causes of nonperformance and in effecting any partial performance, Franchisee shall take all
necessary corrective actions as expeditiously as possible.
c. The Town shall make a written demand by certified mail that the Franchisee
comply with any such provision, rule, order or determination under or pursuant to the franchise.
If a violation of the franchise continues for a period of thirty (30) days following such written
demand without written proof that the corrective action has not been taken or is being actively and
expeditiously pursued, the Town may consider terminating the franchise; provided, however, a
written notice thereof shall be given to the Franchise at least fifteen (15) days in advance and the
Franchisee must be given an opportunity to appear before the Council to present its arguments.
Should the Town determine, following the public hearing, that the violation by the Franchisee was
the fault of the Franchisee and within the Franchisee's control, the Town may, by resolution,
declare that the franchise be forfeited and terminated; provided, however, the Town may in its
16
Ordinance No. 25, Series of 1994
discretion, provide an opportunity for the Franchisee to remedy the violation and come into
compliance with the franchise and this ordinance so as to avoid the termination.
21. IiVSOLVEiVCY
The franchise granted hereunder may be terminated prior to its expiration if the
Town Council finds that Franchisee becomes insolvent, unable or unwilling to pay its debts as
they become due, files a petition for relief under any state or federal bankruptcy, reorganization,
insolvency or similar law (or any such petition is filed against the Franchisee and is not dismissed
without sixty (60) days), is adjudged as bankrupt, assigns all or a substantial part of its assets for
the benefit of its creditors, all or part of Franchisee's facilities are sold under an instrument to
secure a debt, or a receiver is appointed with respect to all or a substantial part of the
Franchisee's assets or stock.
22. REMOVAL OF CABLE COMMUNICATIOIVS SYSTEM
In the event this franchise agreement expires, is revoked or otherwise terminated,
Franchisee shall remove at its own expense all designated portions of the cable communications
system from all streets and public ways within the Town. In removing its plant, structures and
equipment, Franchisee shall refill, at its own expense, any excavation that shall be made by it and
shall leave all public ways in as good a condition as that prevailing prior to Franchisee's removal
of its equipment and appliances without affecting the electrical or telephone or other utility lines,
wires, pipes or attachments. The Town may inspect and approve the condition of the public
ways, cables, wires, attachments and poles after removal. The liability, indemnity and insurance
as provided herein and in the Vail cable television ordinance shall continue in full force and effect
during the period of removal and until full compliance by Franchisee with the terms and conditions
of this paragraph and this ordinance.
In the event of a failure by Franchisee to complete any work required by this
franchise agreement or the Vail cable television ordinance, or any other work required by Town
law or ordinance within the time as may be established and to the satisfaction of the Town, the
Town may cause such work to be done. The Franchisee shall reimburse the Town the costs
thereof within thirty (30) days after receipt of an itemized list of such costs.
23. SUBSCRIBER FEES AND RATES
a. The initial fees to be charged to subscribers for all services including
installation fee and other one time charges shall be specified in any franchise agreement issued
pursuant hereto.
17
Ordinance No. 25, Series of 1994
b. Those fees and charges which are subject to regulation by the Town in
accordance with Federal law shall not be increased without prior approval of the Town.
c. In order to obtain Town approval for rate increases, the Franchisee shall
file a revised schedule of rates writh the Town at least ninety (90) days in advance of a proposed
rate increase. Subscribers shall be notified of the proposed increases within ten (10) days of
notice to the Town. This filing shall specify the rates or fees to be increased and associated
regulations which may affect charges to the subscribers and the justifications for said increases
and charges. The Franchisee shall promptly submit any additional supporting information
requested by the Town.
d. VVithin thirty (30) days of the rate increase filing, the Town shall schedule
a public meeting before the Council to hear subscriber and Franchisee comment on the proposed
increase. Following the public meeting, the Council shall determine whether or not to grant the
proposed increase or a portion thereof prior to the expiration of said ninety (90) day period.
e. Rates shall be just and reasonable, considering the Franchisee's costs,
including a reasonable rate on investment over the remaining term of the franchise, and shall not
give any undue or unreasonable preference or advantage to any subscriber or class of
subscribers.
f. Rates and charges may be reduced at any time without prior Town
approval, provided that the reductions do not result in rates which are unreasonably discriminatory
to any subscriber or class of subscribers. VVhere temporary reductions are put into effect for
promotional purposes for a specified time period, a return to the permanent rate shall not be
considered a rate increase for the purpose of this Chapter. The Town shall be notified of all
reductions in rates whether permanent or temporary.
g. Rates and charges not subject to regulation by the Town under Federal law
or regulation may be changed by the Franchisee following a minimum of thirty (30) days prior
notice to the Town and a minimum of thirty (30) days prior notice to all subscribers of basic
service.
24. REPORTS
a. Annual Report
IVo later than one hundred twenty (120) days after the end of the each Franchisee's
fiscal years, the Franchisee shall file a written report with the Town which shall include:
18
Ordinance No. 25, Series of 1994
1) A summary of the previous calendar year's activities and development
of the system, including but not limited to, services begun or dropped, number of subscribers,
including gains and losses, homes past, and miles of cable distribution plants and service.
2) A financial statement certified by an officer of the Franchisee including
a statement of income, a balance sheet, and a statement of sources and applications of funds.
The statement shall include notes that specify all significant accounting policies and practices
upon which it is based, including, but not limited to, depreciation rates and methodology,
overhead and interest system cost allocation methods, and basis for interest expense. A
summary shall be provided comparing the current year with the three previous years. The
statement shall contain a summary of the payments.
3) An annual summary of complaints received.
4) An annual projection of plans for the future.
5) An annual report of the company.
6) A current annual statement of cost of construction by component
category.
7) An ownership report, indicating all persons, who at any time during the
preceding year directly controlled or benefited from an interest in the franchise of five (5) percent
or more of the Grantee.
8) A copy of all the Franchisee's rules and regulations applicable to
subscribers and users of the cable communications system.
b. Additional Reports
The Franchisee shall prepare and furnish to the Town at the times and in
the form prescribed, such additional reports with respect to its operation, as may be reasonably
necessary and appropriate to the performance of any of the rights, functions or duties of the Town
in connection with this ordinance or the franchise agreement.
25. RECORDS REQUIRED
a. Mandatory Records
The Franchisee shall at all times maintain:
1) A record of all complaints received during the term of the franchise.
2) A full and complete set of plans, records and "as build" maps showing
the exact location of all cable television system equipment installed or in use in Town, exclusive
of subscriber service drops.
19
Ordinance No. 25, Series of 1994
b. Inspection by Town
Upon reasonable notice to the Franchisee, the Town shall have the right
to inspect all property, maps, and records relating to the cable operations at any time during
normal business hours. All records required by the Town for such inspection shall be made
available within the Town of Vail, Colorado, within a reasonable time after the request.
26. FILIIVGS
The Franchisee shall mail or deliver a copy of all filings it makes with State and
Federal agencies to the Town Clerk. Said copy shall be mailed or delivered on the filing date.
27: CONSUMER:PRaTgGTCON P,N!D~:SE1~1l1CE STAIUDAR. DS
a: E~xcept 4 s 4tl~erwise prouitle~! Eri the firanchise agreement, tf~e Fl~;iPeP
x: ~::X:
shAl1 maintaIn th~ n~cessary facHJties, e~quJpm;nt artd psrsor~nel ;t. coimp[y ~i1tW the to1lawing
consumer;;ptatec~o~ ar~d ser~rice stAr~d$rds under nQrmal c'~r~ditE~~s af ~per~fiio~:
1) S(af#~crent toli fre;e telePhrone;l~n~ capac~ty d~rrng narrri~l busiriess ~ours
ta assure;;thaf a; mjJnjmum of r~inety 41ve percent (9~~,ia) afarr calls wufbe ans~iere~ ;befor~the
fr~urth (~:th) r!ng ar~d n?riety percent {g0°~0) afi a1f ~c~llers for servrce will not b~ red to vu~[t t~ar~
fihen thirty;;(3U~ se~c4r~cls be#orbbeir~g c4ri!rtectecl to ~ servi~e represerr~tive'!
2) jEj merg~ncy #elephone; lino cap~aoity on a; fwenty four.;~24) tio~ar' basts;;
In~clud~ng ~veekends ari~ hal~davs:;
3) A Eo~al business; a~~1 senri~e;;~ff,ce;,oper~>;d~ring; t~ormal busiriess I~aurs'
dt leasfi eii~ht t~ours; dl. d4 i~n~1 at le~st ~aur ho~rs weef~y t~rt eueriings or weeke~t~ls,;~r~d
6dequately staffbd ta! ~ccept subs~r~ber p~~rmert~s; ~nd°;respond t~ service requests >antl
carrl plaJnt I s:
~rnerg~rtcy s~rstem maintenan~~ and repa~r'`s#aff, capabl~ of
respQnding fio arid repairlng t'najat s~rstem;rnalfur~cf~on;an a~±nrer~ty~#our (2h~ur por dt~y basis;
5) ~r~ ir~st~ll~tion s~~f, c~p~bl~ ;c~# rnstallir~ServiCe„ti~ ar~y subscriber ~ri#hin;
sever~ s aft~r rece~pt a# a~equest,: ~n ail !ar~a$ w~9re; ~rur~k;antl,feetler cable have beeri
acti vat, bd::
6} AttFie subs~crrb~r's reque~t, Fr~r~~hESee sh~tl seh~dule; ~uith~n ~ s~ecified
four (4) hour t: I rrie per~~d, al! s{~~irttrttenfis ~urfh subscribers for rn~tallafiro~ af ~~rvr~~:
h.e Francf?isae sha[i rertder~ff~c?er~t s~rvice, make r6ir5 pr~mptly, ~nc~
firrtdrrbpfi seim~W ~inly fbr g~ti4d; CauS~ a t1d fUr tl~0 ShOrteSt ti~te p~osSible SC~16du;letl inteupf
ihsbf~r as po8sEble, sh.all bO .Pre~ceded by ti~e ~nd s~ialf occ~ar durirtg a periad of mtnEmurn use
of fitte cabl~ system, p~ef6rAb'Iy befuiieen rrtidnEgtit ~ndA 1VI, p0. A,M
20
Ordinance No. 25, Series of 1994
8} The ~ranch~see shall!ma~nt~,n a re~a~r force of #echmctans normalfy
capabte of res~i~nding; to subscriber requests for serv~t~ wit~tin the #t~l~ow~ng time €r~mes: xxxx, aF.vr aSystem ai,tage 1~lEthEri twQ (2~ haurs, includjng ~reek~rids
af reoevvEng subscribet! cajis or request~ ~ar s~rrr~c0 w1~h bynumb;~r ~dent~fy a systern ~utag;e ~f.
sosa;nd Qr ;p~~tur.e ~f tirt~ ~1;;) or m~r±~ chanr~els; aff+~ct~r~g ;at le~st ten ! perce;r~# {ifl°~o) ofi< th+e
sw!iscribers ~f fhe system.;
b~'~r ~,rt is;olated,vuage 1l~ithin twent~r 4our ~24~ ttours; ir~clu+dirtig
weekends; of re6e4vE~g requests fr~r s~r~~ce jderit~fyEng; ara 1 soi~ted d~,tage of sountl or;;p~cture for
orte`'~~) or; mare;~h~nri;els that ffecfs #t~r~e (3}r more subscribers Qrt weekends;;;;an ou~ge;
affecting fewer tttar~ ~hr+~e (3); subscribers;sh~ll resuit it~ a s~rvice caif na;later tl~an th~ folit~wrrtg;
,
ond ay,; rna;cn;in
ir~feri~r s~grtal q;u~[ity U1lithin for#y eig!ht (48j ~tours, irtcludirt;g
weekenris, of rece~ving a r~quest for sec~i~~ce ~dent~fyE~ig ~ problem; conpern,ng;p ~cture or sp;und
;i}uaIi;ty;:;
9) Th~ ~rani~~see s~ralf ;b~ deerned ta h~ve resporrded' to A re~uest fior
ser~rice under t~e pravisions of #his S+~~t~on wl4en ~ te~hnIci~n 4rr1~res at the s+~rv~ce lacat~on;ar~i
: ; .>:<:<.;. . _ .
b~gm~ wo;rk on th~ prabl~r~. En tMe case af a sc~bscriber ~afi ~e~ng ttome ~rh e;n
the t~ctiniciar~
arnVes, the te~Mn~c~~n shall (eavvuritten n~t~f~c~~rorr o;fi arnval tee ~3} successive subscriber
fa~lures ta ;be present ~t an appbir~t;ed tIrn6 shall excvse ~rantee o~ fihe' du#y to ;respond;
'Che ~rancl~jsb+~ sh~i r~ot;;charge fa~r the repaIr or; repl~cernen;t ~f
defecti~re e~quipmet~t p,ro~'de~l by Rhie ~ra~ichis~e to su€bbers;
7;i) lJrtless e xcused, the Franch~see. sha~l determ1ne tM~ nature af ~he
prvblern w~#h~r~ fart~r eigl~t 8~ hours o fi benmg worl~ and res~Iv~ aIl cab[e ~yst~m re[ated
prablert~s w~#hEn f~ve (5~ busin;eg5 d~ys utll~ss #ecl~t~ccally ~~feasible:;
0~r req~,est,; the ,~=rarrct~~sed s~tall pr4~r~~e a~~aropr~ate reb~tes tQ
subsc~ibers +~i~ose servIce ~r~s beer~ intertupte~ #er ~ur ~ vr mo~e h+au. rs:
)
E1pon f{5) r~~ys nthe ~r~nchIs0e sF~~ll es#~IESh ~ts cor~pliarice,
wIth gny ~r ~ll of the: sY~nd~r~s reqUire~i abov~ ;7'h~ ~~~chisee s~tall ~arovicte ;;suffiic~ent
documenfiat,on ~o permif #he Tawn :to verify the compliance
1,41} A repeatect and ver~ftabl~ pat~ern of;non complrar~ce wrth the c;ansumer
prvte4o~ st~ndards ofi ~through 13 ab~ue, aft ~r thFrancti~see's rec~~~t of du;e n+~t~ce ~nd;~r~
opportunEty fio ~ure, may b~ ~eemed a mater~al breach afi the frar~ch
21
Ordinance Na. 25, Series of 1994
15~ The ~ran~M~see sh~all establESh wr~tten pro~etlureS fior rece~~ac~ng
upo'n and; resolv~nT subs~rib~r camplal~tts ~t~oUt' irtteniention by tf1~ 'C~~n '~Me wri~tera
proc~dures shV li' ~rescribe thi- rnanner rn ~+h~ch a subS~r~bpr !may suk~mit a c:ampl~~nt either ~ral~y
or ir~ writErrg specify~ng th~ cr~~er's g!roundg f~r tiissAt~sfactian; ThFranGhis~e;sht~ll file.~
Copy of these pr:ocedu;r~s ~rith tC~e Town:
yTh~ 'T'~uvn sh~i! have;the r~ght ta rev~e~r the Ftttnch~see`s respanse to;
Su#~Scriber cem~laintS;: iC~ Qrd~r Yo d;et8r~rliflB tkt. ~r~;rrchise"e's cc~mpiraiM with fhe:: fchise
reqirirernertfs, sct .o theubsqriber°s rtg[~t ta pr~v~~y ;
ItShaEI b~ the; rtght ~f all subscribers fo contmue re~ing seruice
~nsa4ar as;th~rr finar~c~~l and;othec abl1gatians ~o the Frar~eh~see are h0rrared in the event tha;t
the ~ran~Misee elects r~kau;~l~, mad~ty, ~r se1l the syst~m, 'ar th~ ~'owr~ gtves riotice of 1nte;rat to
term~nafie ;~r not ta reneuv #he €r~nchistM~ Franci~~see shatl act sa,;as to: err~ that,
subscrilaers receive se~rice so Ibrig as t~e #r~r~chis~ remarns in f0rce.
xx: 7,~} lrt tl~~ ~venfi of'~ ci7srig~ o~fi<aanfrol of the fra;ri;chisee, or in thte
operator ;~cqui~es the s~sterr~, tl~e orrgEnai Frxnch~see sh~ll cooper~tm; wEfi1 the Tow
andl~r th~ rtew ~raMeliisee or ~perator ~r~ mair~taEning 0ontinurty of serVlce to:a[i subscti~iers;
During such p~rr~~t, fihe: ~rancktisee<shall be ~ntktle+d ta ;fih~e revenues f~r ~rt~ period durir~g whiic~
~t oper~tes; the systerrt>
offieers, aget~ts or;emplay~es of the FrancFirsee o;r ~ts cQratra~~ors
or subconfr~c#ars; whjr~ th~ r~ormal;cour5e of wor~ came ~r,ta contact w~th:;rnemkiers of fihe pubf~c
or , Wh~ require entry or~;to sber's p~remises shatl c~rry a phota-~ttentifrc~tton card a€o~m
approv~d the ;;Town;; ~ran~hESe~ shall' 0cc~u~it for ali ~derit~~cat~on cafds at al1 fiitn;es
~uery vehrcl~ ~rl~isee a.ts ma~ar sut7cor~tr$ctors sh~ll be cle~rly E+d~nt~f~ed w~rk
for t~ie frarichise
2. ~ U{~oh request of the Tovirn, k~ut not rnore 'th$n once ~~rtu~lly, tl~e
Franchjsee stta[I ~~nd~c~ ~ subsber satESfaption sq
rve
Y perta ~r~irig to ;thte quality o~ servE
whiclti rna be transrrt~fit~~t ta ubsoribers ir~ th~ :~rancMJsee'S tC1V0E4~ ~O[' :SENIG~!S
results af such su~rey ~h~)1 be: provlde~i ta :the Tawn on; a~mely bas~s Tbe cast of such surr~y
shall b~ borne by the Franch,e::
se
24) A~tdrt~o~ai senr~ce s#ar~~darc~s ar~d stand~rds goverrifng` co~surri.er
prot~cor~ ~nd respans~; by #~ti ~'r~~hise~; to s~k~s~riti~r co~ripEa~r~ts not dtiherwise prou~d-ed f
In fih~s, Chap~er rn~iy be $
Yabitshed in; th~ franchrs6 ~r~ement; and th~~ ~ran~hES~e shall col'rtpty
wrth such st3nd~rds ope~~tron~ af the c~le tp l0visi0n <Systert~. Av~rif~ed ;~r~d cortt~rtu~rig;
22
Ordinance No. 25, Series of 1994
pa~tern o#;nona4rr~pliance may be:deeme;d a mat~r,~l;breach ofi tt~e fi;gr~ch~~se,; pro~~tle~ tf~at;the
~ranchisee sh~ll; rece€ve due process, inc~~,dIng WrItten r~o~catiari and :an appa~unit~ ta ci,re;
prE~r to any sanction be~~g Arnposetl.
22) Ctt year thriiughout the A ii erm ~f ~he #Can~Chr$~, Afi re~uested by;tMe
Touvn, the fiowrrt ar~d the F'ranchhall rneet ~iubf~ciy t~ r~v~ew s.stem R+~rforrnanc~'and qu
af servEce The Va17.10u9 rep~ets raqujred pursuant ;to th~s Chapter, the r~sults ~f techrii~ai
~~rformarice tts, fih~e ~~cor~ a~ subscrEb~r mpl~~rt~ ~nc~ the hise,e's respotl5e to
corrtpl~Irtt~, And tl~e irtfarmatjon a~qurrec~ ir~ ahy subscr~ber surveys; sha ll be uzed as t~e b~sEs
for,re~riew In add~t~bn; ~ny subscriber tri~y sukirn~# commerits ar ;complain#s durEng e re vAew
m~etinc~s~ ;e~ther orally;ar ~r~ ~r~trng,: aind these shalE be candered ; 1Nithir~ fittrrty (3~) days affi~r
ca~i;clus~on; of system perf0rmanc+~ r~u~ev~; r~~etEng> the 7'a+~n may issue ~~ntlmgs w,tF~ ;respect to
the cable 5ystern's frArichise c~mpliance ar~d q~ialrty servi~e 1f the o~+rt ~leferm~n~s that; the
Fraricf~is~e ~s n~t ~orrzpli~rtce wrifih #he ~equ~rorn~tt~s;of thIsCttspter at' th~e fracth~ `~o~rrt
rnay; tl~rect; trie chIsee to;ccarrect the areas ;af ~0r~cflr~pliance withift ~ reasona~bl~ p~r~odf
trme; r~ 64the ~rancMisee, af~er ~ue r~ot~ce, ta c;arcect the aceas bf;: rior~campl~artce w~thrn
th~ p~r~ad sp0cifietl t~ierefor a~ ta c4mr~ence,c~,~pl,~c~;;thereaftLr; S~1dIl 1Je cbriStdered A
mat~r~a~'breacl~ afi the fr~n~h!~se, ar~d tl~e Town r~riay exercise any re:me~y with~n the seope of this
Chapter a~d the firan~cNiise agreerrter~t c~ns1 d~red appropr~at~~
28. SERVICE TO SUBSCRIBERS
A Franchisee shall provide all the following services to subscribers:
a. A basic subscriber television service tier which consists, at minimum, on
any legally required must carry signals an information and weather channel and at least one (1)
public educational and governmental access channel. This rriay k~e supersed~d by the
fortti:coming F:QC; defir~i,tiot~ bf; "ba
sIc ser~rice trer", ~n Gonforrnar~ce ttt thb 1992: C~ble Act.
b. The Franchisee shall provide leased access channels to the extent required
by Federal law.
c. A Franchisee shall provide equipment directly or through grants for local
program production by all cable users for live and video tape presentation over the cable
television system En q~cor~Jance wt#M the provisi0ns of the #r~n~[~ise Agre~ment; The Franchisee
shall have no control over the content of access programs. Any public access channel shall be
made available to any member of the public on a first come, first served, nondiscriminatory basis.
23
Ordinance No. 25, Series of 1994
29. PUBLIC DROPS
The Franchisee shall provide without charge within the franchise area one drop
activated for basic subscriber cable television service to each fire station, public school, police
station, public library, municipal building and other such buildings used for public purposes. As
provided in the franchise agreement, the Franchisee shall provide live cablecasting capability to
designated public buildings.
30. LOCK OUT DEVICE
The Franchisee shall provide, for sale or lease, upon request, a lockout device for
use by s subscriber. Such device shall be capable of restricting the reception of any channel
~n~lutl~ng ~oth 0b.
rd~o and a~ciio! p~rtidns of #h~ programmEng c~~ri6d ar~ thdt chanr~eC: The
lockout device should be made available to all subscribers requesting it and the charge and
availability of this device shall be made a part of the rate schedule.
31. PROTECTION OF SUBSCRIBER PRIVACY
Franchisee shall protect the Town's privacy consistent with the provision of 47
U.S.C. 631, as amended.
32. COIVSTRUCTION AIVD INSTALLATIOfV VVORK
a. The Towrn shall have the right but not the obligation to inspect all
construction and installation work performed by the Franchisee subject to this Chapter as it shall
find necessary to insure compliance with the governing ordinances and the franchise.
b. All construction, installation, and maintenance must comply with all Town
ordinances including all uniform codes adopted by the Town and all state and local regulations
and good and accepted industry practices.
33. LOCATIOIV OF STRUCTURES LINES AfVD EQUIPMENT ~
a. The Franchisee shall utilize existing conduits and other facilities whenever ~
possible, and shall not construct or install any new, different or additional conduits or other
facilities whether on public property or on privately owned property until approval of the property
owner or appropriate governmental authority is obtained. However, the location and installation
of any conduit, or other facility by a Franchisee shall not create a vested interest, and such
structures, or facilities shall be removed, replaced, or modified by a Franchisee at its own
expense whenever the Council or other governmental authority determines that the public interest
so necessitates.
b. All transmission and distribution structures, lines and equipment installed
by the Franchisee within the Touvn shall be located so as to cause minimum interference with the
24
Ordinance No. 25, Series of 1994
proper use of streets, alleys and other public ways and places and to cause minimum interference
with the rights or reasonable convenience of property owners who adjoin any of the streets, alleys
or other public ways or places and where they will not interfere with any gas, electric, telephone,
water or other preexisting utility facility.
c. All such fixtures in any street or public way shall be placed in full
accordance with the standards set forth in the Municipal Code of the Town of Vail.
d. Cable shall be installed underground at Franchisee's expense. Previously
installed aerial cable shall be placed underground in concert with other utilities when both the
telephone and electrical utilities convert from aerial to underground construction. Franchisee shall
place cable underground in newrly platted areas in concert with both the telephone and electric
utilities unless this requirement is waived by the Town. Equipment shall not be stored on Town
right-of-way.
A preconstruction conference with the property owners will be completed
prior to commencing any underground construction, and the Town shall assist and cooperate in
such conferences if necessary. All soil, earth, sod or improvements disturbed by the installation
shall be replaced and restored to their original condition. Patching of highways, roads and
driveways will be completed in accordance with the specifications promulgated by, and subject
to inspection and approval by, Town, County or State engineers, as appropriate.
35. REPLACEMENT OF PAVIfVG
The Franchisee at its own cost and expense and in a manner approved by the
Town shall replace and restore all paving, sidewalks, driveways or surface of any street or alley
or public way disturbed, in as good a condition as before the work was commenced and shall
maintain the restoration in an improved condition for a period of one (1) year. Failure of the
Franchisee to replace or restore such paving, sidewalk, driveway, or street surface within forty
eight (48) hours after completion of work shall authorize the Town to cause the proper restoration
to be made at the Franchisee's expense.
36. ALTERATION OF STREETS BY Town
If the Town shall lawfully decide to alter or change the grade of any street, alley,
or other public way, the Franchisee, upon reasonable notice by the Town, shall, in a timely
manner as requested by the Town, remove and relocate its poles, wires, cables, underground
conduits, and other facilities at its own expense. If other utilities are compensated, Franchisee
shall be entitled to the same compensation.
25
Ordinance No. 25, Series of 1994
37. TRIMMIfVG TREES
A Franchisee shall have the authority to trim trees upon an ovErhanging of streets,
alleys, sidewralks, and public places of the Town so as to prevent the branches of such trees from
coming into contact with wires and cables and other television conductors and fixtures of the
Franchisee. The Town may require all trimming to be done under its supervision and direction
and at the expense of the Franchisee.
38. TEMPORARY MOVE OF CABLES
A Franchisee shall on the request of any person holding a valid house moving
permit, temporarily raise or lower its wires or cables to permit the moving of buildings or other
large projects. The expense of such temporary raising or lowering of wires shall be paid by the
person making the request, and the Franchisee shall have the authority to require such payment
in advance. The Franchisee shall be given not less than forty eight (48) hours advance notice
to arrange for such temporary wire changes.
39. REFUNDS NIVD SERVICE TERMINATIONS
a. A Franchisee shall establish and conform to the following policy regarding
refunds to subscribers and users:
If the Franchisee collects a deposit or advance charge on any service or
equipment requested by a subscriber or user, the Franchisee shall provide such service or
equipment writhin thirty (30) days of the collection of the deposit or charge or the Franchisee shall
refund such deposit or charge within five (5) business days thereafter. Any converter security
deposit collected by the Franchisee shall be returned to the subscriber twenty-four (24) months
after the installation of such converter, or upon termination of service by the subscriber and return
of such converter undamaged with allowance for reasonable wear and tear and payment of any
outstanding balance due and payable, whichever occurs first. If and when the Franchisee collects
deposits from its subscribers, it shall pay interest on any deposit required of the subscriber at the
agreed rate in effect from time to time minus two (2) percentage points. The Franchisee may
elect to pay such interest in the form of credits to subscriber accounts. Nothing in this Section
shall be construed:
1) To relieve a Franchisee of any responsibility it may have under
separately executed contracts or agreements with its subscribers or users;
2) As limiting a Franchisee's liability for damages, if any, which may be
imposed under the franchise for the violation or breach of any provisions thereof; or
26
Ordinance No. 25, Series of 1994
3) To timit the Franchisee's liability for damages, if any, because of its
failure to provide the service for which deposit or charge was made.
b. The following requirements shall apply to subscriber disconnections:
1} There shall be no charge for disconnection of any installation,
service or outlet. All cable communications equipment shall be removed within a reasonable time
from a subscriber's property upon the subscriber's request, such time not to exceed thirty (30)
days from the date of request. Franchisee may charge for adding or deleting channels at the
subscriber's request.
2) If any subscriber fails to pay a properly due monthly subscriber's fee,
or any other properly due fee or charge, the Franchisee amy disconnect the subscriber's service;
provided, however, that such disconnection shall not be effected until thirty (30) days after the due
date of the monthly subscriber fee or charges and shall include a minimum five (5) days written
notice to the subscriber of the intent to disconnect. After disconnection, upon payment in full of
all proper fees or charges, including the payment of any reconnection charge, the Franchisee
shall promptly reinstate the service.
40. SERVICE AREA
The Franchisee shall offer full cable television service to all areas of the Town
unless specifically authorized to serve a lesser area. A franchise issued in accordance with this
Ordinance shall require that all dwelling units within the franchise territory be offered service on
the same terms and conditions; provided, however, multiple family dwelling complexes,
apartments, or condominiums may be served on a master-bill basis; and further, service to
motels, hotels, hospitals, and similar businesses or institutions may be offered on terms and
conditions different from single residence subscribers. In the event that subsequent to the
issuance of a franchise the Town annexes additional territory, a Franchisee shall extend its cable
television services into the annexed area within a reasonable time of a request by the Town to
do so. Such reasonable time shall not be less than nine (9) months.
41. COIVTIIVUITY OF SERVICE
a. Vllhere a Franchisee rebuilds, modifies, or sells its system, it shall ensure
that all subscribers receive continuous, uninterrupted service regardless of the circumstances.
b. As long as it is entitled to revenues from the operation of the cable system,
a Franchisee shall maintain continuity of service during any temporary transition in the franchise,
including but not limited to, the followring circumstances:
1) Revocation of the franchise.
27
Ordinance No. 25, Series of 1994
2) IVonrenewal of the franchise.
3) Transfer of the cable system to the Town or another entity.
42. TRAfVSITIOiVAL OPERATION
In the event a Franchisee continues to operate the system in a transitional period,
the Town acquiescence, following the expansion, revocation, or other termination of the franchise,
it shall be bound by all the terms, conditions, and obligations of the franchise as if it were in full
force and effect. The terminating Franchisee shall cooperate with the Town and any subsequent
Franchisee in maintaining and transferring service responsibility.
43. PERIODIC REEVALUATIOIV AIVD REIVEGOTIATIONS
a. Since the field of cable communications is rapidly evolving and many
technological, regulatory, financial, marketing, legal, competitive, and other changes are likely to
occur during a franchise term, a degree of flexibility is needed in order to achieve and maintain
a modern and efficient cable communications system that adequately serves the public. To this
end, the Town with cooperative assistance from a Franchisee, shall periodically reevaluate the
system operation and negotiate appropriate franchise changes.
b. The Town shall reevaluate the Franchisee's cable operations and service
three (3) years following the award date of the franchise and every three (3) years thereafter for
the life of the franchise. The Franchisee shall cooperate with the Town in such evaluation and
provide information as may be necessary for the evaluation.
c. Followring the public release of a reevaluation report, the Town and the
Franchisee shall meet to discuss the reevaluation and possible means of improving service to the
public. At that time, the parties shall negotiate any changes in the franchise that may be
necessary or desirable. Upon request of the Town, Franchisee shall, no earlier than ninety (90)
days and no later the thirty (30) days prior to a review and evaluation session, conduct a written
survey of subscribers. Each questionnaire shall be prepared and constructed in good faith so as
to provide measurements of subscribers preferences and satisfaction for:
1) Programming offered by Franchisee at the time the survey is conducted.
2) Programming generally available to cable subscribers nationally but not
offered by Franchisee at the time the service is conducted.
3) Maintenance and subscriber complaint practices.
As a part of the review and evaluation session, Franchisee shall report in writing what steps it
may be taking to implement the findings of the survey.
28
Ordinance No. 25, Series of 1994
d. The Town and the Franchisee may meet at other times to discuss and
negotiate possible changes to the franchise pursuant to an agenda agreed to in advance by both
parties. Such special sessions are intended to provide a mechanism for effecting franchise
changes necessitated by major events affecting cable communications, such as state or federal
legislation, new or revised state or federal regulations, or an extraardinary change in
circumstances.
44. THEFT OF SERVICES AND TAMPERIfVG
a. iVo person, whether or not a subscriber of the cable television system may
intentionally or knowingly damage or cause to be damaged any wire, cable, conduit, equipment
or apparatus of the Franchisee or commit any act within intent to cause such damage, or to tap,
remove, or tamper with or otherwise connect or maintain any wrire or devise to a wire, cable,
conduit, equipment and apparatus or appurtenances of the Franchisee with the intent to obtain
and maintain a signal or impulse from the cable system without authorization from or
compensation to the Franchisee, or to obtain and maintain cable tnlevision or other
communications service with the intent to cheat or defraud Franchisee of any lawful charge to
which it is entitled.
b. Any person convicted of violating any provision of this Section is subject
to a fine of not more than five hundred dollars ($500) for each offense.
45. REIVEGOTIATION
If any court of competent jurisdiction, the FCC or any state regulatory body rules,
decisions or other action determines prior to the commencement of system construction, that any
material provision of this Ordinance or any franchise granted pursuant thereto, is invalid or
unenforceable, then in such event, the Town shall retain the right to renegotiate any franchise
entered into prior to any such rule, decision or other action. For the purpose of this section,
"Commencement of System Construction" shall mean the first day that physical construction,
including but no limited to, the placing of cable on poles or underground, actually begins.
46: FFiANCH1~EII:ENE WAL
Franchis~ rene~uaIs Sha11 baccorda nc~ wrt~;appl~cabl0 lavu "Ch. e Tbwn ar~d4he
~rarlchisee;; by rrtutua) c~nseltit, tn~y:er~fier; into r~r~ea1i r~ego;fiiatior~s: ~t ~n~ t~me;tlurirtg;tha tetrrl
of the; ~ranch~s~, Llpon rr~ut~~l;exec~iti~tt ot~ frar~C
hrse renewal agreern~rtt, th~ ~'ranch!isee s~~;Il:
rerrrtiburse the T~W.rr f~~: ~o~ts ?ncrderttq1: ta the ;::frar~chlse re eu~
~al aw~rd, rtot :;ta ex~e~d ~~y
rn,ximum spe~cifidcJ Jrt ttte ~greement; An ~Uctt re1mbur'sernerit sMall<nbt be ch~rg~d rr~st ~ny
Y;:
franchise fee due the 'Teavutl cl~rrng4he term df't~~ firartchise.;
29
Oidinance No. 25, Series of 1994
4FRANCHlS~
a!; 1"he Fran~hES~e 'hall not; sel~;' ~ransfer, lea~e, ass~gn, suble~ ~r dESpase ~f,
}n Yv hale ar~ ~n par~either b~ farce+d !r ira~rolunt~ry safe,; or by or~irnary s~le; ~antract, conso~l!tlatio~ri;
or otta0r~irse; th~ fran;ch~se :or ar~y of the r~ghts 4r privI l~ges fiMerein gr~nt~d, w~th0ut the ;pr
conaent di the Tawn and ~en only upon such ferms and cor~dEt~ons 4$ may be prescribed by the
~`ovun und~r ~pplicable lauu,;which;consent 5ha11 r~Qt;be urtreaso~~bly tlenEed or ~tel~ye~ ;'P~ny.
~ttempt ta setransfer,l"as'e, assign or Dthbr~i~se A~sp0sq of th~ frahch;is+e w~tho~t the crsr~sent
of;fhe Tawr~ sh~(t k~e r~u~l aYa1d: Tf~~ granting ot a secur~ty friterestari;y:~~ie' Franchiise~
assets, or ~ny ;rnortgag~ or oth~r hypathec~fiior~, sh~ll not b~ Cansr+tlored g; transfer fior tt~e'
putposos af th~,s sq~t~or~.; . The transfer o# th+~ fr~nOh~se from an~ ;~hally +owned subs~tliary t~
~rai;~ch~see's p~rer~t c~im~~ny ~a an~t~r+ri~oilyr~wn~d;subs~d~arys~iall not r~~uar.e Tawn consent
b. Ttte re;qqrrements of Sub ct
bn; a shalx apply to anY change `1n:: c.oqtrb.l of
the; ~"r~nchisee `'Chea~d ;"cor~troi" as: used.:hter~iM ~s no# i1rr~ited ta or`stockhoiclers> ar
partnership ~rtt~r.ests, bu~ cludes ~ctu6i ~uork~ri'g cont~al in whtatevqr r~~rttter exd frt the'
event th~t th~ ~r~nctt~see c~rpar~t~on, PrEar autl~orE~atEan ofi thTo~un slabe requiretl where
owbershrp or confiral ofi n~or~ ~h~r~ <ter~ percen# ;(1 00 o) a~f the votrrig stock af the ~rar~ch~see is
~cc{u~red k~~ ~ persc3ri or group of P~rsarts ~Cfirr~g in CaC~cerC~! ~tonof w11vlri owr~1 or cor~tt~l th~
vqtEng st~~k t~# th,e Tr~Ch isee the ~ffec#u~ Aata :af the ;fr~rt1. irl9utarly o{ cctv~l
TFrancF~~$ee sh~l~ not'fy the Tawn ;,r~ w~tir~g of ~ny ~~reclosure or ar~y
ott~er ~ud~c~;~i sa(e df ~11 <dr a substarifiIal p~rt ~fi the ~ranch~is~'pr~p~r;ty af thie Fr~nch~see ot uppn
the terrn~n~tE~n ~f;a~y I~ase ~r ~ntere'st cover~n~ alt or a substar~#ral part ~f sa~c~ franchise; prope~t~:
Sucli not1fic~tion sh- ll tae car~srdered: by the Towri as ~ottlrt~t ~ chAnge in cort#ra! af owr~ers~i~
ofthb frar~chise has taken place ar~d the prav~sions ur~der thEs Sectlan gau~rrt~r~g the eansent af
.the To~rn to suCh:che !r~ con#rbt;.ofi awriership sh~l~ apply, ob:
d; ~or fihe .
ur d
pr3se oterrri:inj~g vut~ether it ~tta[I c~risent ti~ such ch ~h
fr~r~sf ~
e, or;acquIsit?on ~f ~ontr~l, the Tc~wta rna~ inq~t~r6 Into tl~e qu~lifrcation8 of the pros~aecti.ve
transfere~ ~r coritrQlling paCkyy aC~tl ,the Frat1~hisee sh~l( asSist thE To~?n Et1 h rn~u~r~ lrt;
seek,i~g fihe'Towrt's ~rrs~nt to ar~y ctiange P# owr~1~`rp or contr~l, the ~raneh~se;e sriaiI;hawe th~e;
r~spons~billy o# frisur~ng tMat ;tk~e ~fetee campletes an ~pplicafiion ~t~; fiarm and subst~r~ic~
reasgna~lysatisf$~tar}+~~ the Towr1, whIch appl~cat~an str;~ll AncIude the Jnform~#~on;req~ired ~nder
Sectiort ^'1 120' afi this +-M#~r ~rt ~ptiC~tt~ri Sh~il <be submitt~~i to #h: Towtt t~bt tess fihett:
sixfy (~0) d!ys pr~or tb fhe d~te tr.a nsfer T~e tr'~nsf~ree s~t~l1 be required to establish tttAf:it
possesses tMe qu~I~~?cat~ons and f~n~c~~1 antl t~ehrri; c~p~b~l~ty to ~per~te ~nd ma~rita~rt th~
30
Ordinance No. 25, Series oi 1994
syst~m and porrjpMy with fr~r~~I~ESe req~iret~tents far #he remair~d~r c~# ti~e t~rm af the franchise
If tiie legal, f,nai~c~al ch~racter, and fiecttr~lca1 qual~f~cat~ons;of the ;apRl.can~ are safi~sfactory.tk~e
'Towrn shall c~nsent ta tMe transfer of the #ranch4s~ ;The ~on~ont' c~f tt~e T~uvr~ to 5u:ch transf.er
Shall r~of ;l3~ ~t1~e~sflrt3bly d~nr8d Qr dc~..
e: ~y fit~ancE~! ~nstiiut~an I~av~ng a pledge afi tlie F~arreh~see or fts assefi~ for
th:e advar~aemerrt of mori~y for 4he: canstruitYan andlOr 0peratian of ~hefrar~eh~se sl~a~l haY~ the
pgli1l r~otify fitte Tawr~ th~t it ~r rts d~s~gne~ sf~ctory to ~~e ~"awr~ shaIl tak6 control of; antl
operate' the Cable televis~Ot1 Sysfietn, ,n tMe e"ent ;af a;Franctiisee def~ult fl# ~ts frnartC~al
Obtigatlans ~urther, sald fi~iarrc~~l ~rrsf~tufiion 5ha11 al$o su~arn~t a plan f~r sucM~;op~rati~n withir~;
thir~r (~p) days af ur~rng such control <that will ~nsure co~ntInued; serv~~~ and:cam~aI~ar~ce wrth
~ranch;ise req~,~rements dur~ng the t~rr~ tFte fm~ic?~ ~rtst~tu~I~n exerc~s~s >~ntral a~rer;the
systern 7he #Jnalal'inst~tutiQn 5ha[I not rc1s0 contral o~rer the s'm tem far aP
er~od e~ceetl~ng
orte (1) ye~r unles~ exten~ted by t~i~ To~rn irt discr.etian ~rtd ~iuri~g s~itd Perrotl of trrne l# sh~l!I
h~ve tMe ~Eght t+o;petitE0r~ fi~te tti;~p trar~sfe~ thb fircf~ESe ;to anottter ~ranch~ee
f~ U p~n tr, <~rat1C~11SL'~ $I11I ~i~IfribUrS~ ~h~ "'OWI~ Q~ fFt@ TQiN11~s
Xx: reasanable prvice~s~ng;~nd revI ew;~xpense ~n cQnnect~an ~i;rfri a transfet af the frar~ch~se or of
control Qffihe fran~his~; ~hclu:ing theut l~rn~tations c~sts of atlmInistrgt~ve reuifJnanc"raE, I~ga!I
ar~d technical eval~atEa~ of :~he praposetl transfer, consultants (inclu~i~it~ teal~nroai artd legai
exper#s antl al1 costs incurred tay such experts), not~ce antl publication cos~s; and docurrient
preparat~an e~epenses Ar~y su~i~ reirnbursemen~ shali r~ot be; charged aga~nst arry franGhfiee
due to the :Tot~t~ dung: the t~rm of tho frarlchise:; .
48 MOLTIpA NCHfSES
Th~ T'o~rn m~y gra~t a.ny nurriber of fr~r~ChiSes subject to ~pplrcable l #ate
or ~ederal la~ T't~e "Covun I~r~~t tlae numbe~ bffranc#~~ses granted; t~aset# upar~; laut not
necessaHly:l~mlted ttt~e re~uirei~ts of ~ppl~c~le Iaw and specff,c I0c~l cQns,deratjons; suc~i
1) The cifiy c~~tha pubt~C r~gt~ts o# ~rayt0 accomm0d~te;multPlo c~les
1Ct c~CICIEt3Qtl i"Lb t}le: C$I3IG~u, ~OC1CIllE~S r"~C3CI ~t~~$ L?t ~~'1' I.ItEII
ty syst~ms, such as elecfir?cAl power;
teleplion~;!gas ari'd ~ewe
9T~~ benef~ts that may ~ccru6;tc~ cablq subscril~~rs as a'result;of ~cible
system ~ompn, su~f~ a~ lower r~tes ari~ Em~roued> se~r~ce~
31
Ordinance No. 25, Series of 1994
"C~e d~sa drrantag~es tMat m~y! rosult;Irorn cable system cx~mpetrtrorr, such:
as ;the r~quirerneAt ~or rr~ulfrple p~rles~l~ t~n resjder~ts' proRerfy, and tMe -upt~~n ar,s~nq;fram
rturrt~rous excairapans a# the ~rgMts tA tn~~y:
b: Mft;~rartch~s~e a~rarded a franchIse tt~ ser~re t~re enfir6 T.~rri sMal! off~r
service fia all ;re~idences in tMe 'Tt~wnrtt ~,ccei;rdance wE~h ;can5tr~ctiort: an~f senr1t~; sch~iiules
mutually agr~e~; upon be~uv~en the;Tov~r~ ~n~ the ~raricl~~see, ar~d con~rstent w~th app:Jcable> ~a+~
c: I~e~e[opers of neuv res~dentJal hausir~g w~1th undergraiir~~ ~#il~ties sl~
prov~de candu~t fio accom~otlate cables;#or ~t least ~iro (2);cak~l€ systerns:;
d. !r~ the 8
v~r~t af mu[t~ple FranOhrsees tlesir,r~g to serve new res~tlehtlal
de4.el0pments th wh190 ~he electrjc;p0~rar anc~ te)ep~one ~~il~tles are unc~ergraurtd, tltie ~bll~vu~n
procedure il ~pply:vu~th tesp~ct tc~ ~c+~~ss ~a:and utIliz~tron a# unc~ergrounci ea~semer~ts,.
TMe develpp~er sha~l be re~pans~bt~ faor~tact1~ and su~vey~r~g;;al~
frarich,seci cab~e.;aperatars Ao; ascerta,n w~i~h operat~rs desrre to Rra~u~tle;c~ble ;telesian service
ta tMat de;vela~rnent The dsv~lcipar r~ay es~k~iis h~ reason~bie ddl~ne to rece~ue cabf+e:
oper~tor ~esponses 'Che finw devel~pt~eht ~t;~ stiall i~dicate fhe mble oper~tors: th~t ilsve
agreeito ;ser~re ;fihe dev~1apment;
2) or~e (t) dr i~uo;t~) cable op~rators w~sh t~ pr~i~Itle se~r,ce,;they sl~~l
be acc~mrnodated In tlae ~oEn;t ut~li~Ee~ trench on;a nond~scrrm~nator;y sttar.:etl cost basis'~, If f~wer
p~
tMart fiwo (2)0 1'a~t3 fS l;l'tCIEC~I~t~f~S'L, the dev~lc~per 5ha11 p~ov~d~ c~r~duifi to cor~mod~t0 i~+o
(2~ spts of cable telsiot3 c~bles anc~ dedicate #a the Tov~m at~y tn~tialty t~noccupied ~Qr~duit ~'he
~deu~loppr sh~lt ki0 entitl~~i t~;reCb~er t~~ cbsts ~f s~~h mtt~a~ly ur~~ccuRieci c~nduifi En ;the eVen~
tl~~t #h~ Towr~ ~vf~s~t~u~n#I~ I6sseS ~.r...:sells ~ccuPI.X.: 0y or use r~gF~~s to ;y ~'r~nch
de~~~oper ~Fial! prav~de at ~ea~t ter~ ~l~) work~ng days n~tice di tkie
date th'at utty trenches ~rill b~ oper~ to; the tabl6 +~perators °that have agreed to ser~re the
developrneht. Whi'R tl'IG ff2ftGhG'S (?IJe11, Gak?~B Oj?~'tOI"5 ;S~taII I1~iT~ f~VQ (2~ ti(VOPI~Et'19 df3~(S: ~0,
begrri the I;i~sta[Iat,an of the~r ;c~bles, ~n~ fiue (5} wark~r~g days, after b~inrtirtq
' irtst~lf~tior~ t~;
cOrTlplete tf1StAllOtibn
4}; Ttte fI.Pal develo~mertf;mMp sha)I nat bp approved until the develdper
subrn~ts ~vidence;;th~t;;
r lt t~as ~to~~fii~+d eactt Fr~c~tise. th~t unclerground; utrl~ty;trench~s
are to be op,ell as a~ ar~ estir~~ted date, ~nd that eaC~ ~'rartchts~e w~ll b~ allawed access to ~ucM
~rert.~tes, jricW~l~r~g fire~tct~es €~o~rt pto - ased streets ;ta mdiindU~l; ham~ s~tes; on ~pe~~fietl
nondiscrimiriatoty e~ms ~rt+d cot~cdti~i,~s, and
32
Ordinance No. 25, Series of 1994
It has rece~v6d;g wr,tten pot~frcatrorr fr+artt ~ach ~rar~qthat
the ;F rartchp56e lnt~rtds:;to jnstall !ts f.acEi~tres dur~ng t~e op~n trer~~h p~r~ac3 an the: spec~fEe~ term~
antl;~ond~ti~ns, ar such ~th~~r tetms and contl,ts as are rriutu~lly ~~reeabie 16 the c~ev~toper
and :the franchisee; or krr.ec~~ved no repiy fr~m a~r~nchfsee w~th~n ;te~r d~ys ~~ter`~ts
rro#,t~0n to such Franch~see, En wh~ch case the Fr~ch~see will be ~deemetl ~o have w~arvetl;,ts
P. rtur~?ty ta ~:nstall 1t8; facaities cithe oper.: tr~ncW perror~;;
5} ~h~~r?n~ the rit utilifi~es trenclti si~all b~6 s~,b~~ct tQ com~fi~r~c~ wlth St
:
. .
regut~tory n~y ~ntl ~tty st~al.fi: suc h~4rr~~ar~~e ~s not.poss~t~le, th~ tlev~eiop~e
d rc# r sri~lt
~r~vtde a sep~tafe tr~nch for thb c~ble tel,on c6bles, with: the e~t~r~ ~ost ~~r~re~ among the ~
p~rtidpat~n~ o~r~t~r~ W~~ tl~e ~o~currence ofi th+e davl0per, #he ~.ffect~ed ufiHt~es antl ~e c~k~fe
.
operator~, ~It~rnatE~e tali~tr~an prolc~dure;s, such a~ thte t~se af dper trenoh~s, may b~ ut~l,z~tl;
sub~ect to appl,.cable
~ An <.>y
6::,>;. ;;.:.:::h m
cabl~ aper~#or w~sg to serve:; ~n ar,~4 M. w~re the trenches h$~e
been;0iosed shait;b+e respartsible f~r:~ts awrr trench~n~ and e~ ca~ts,:
, <<.,. ,,<.;..;.tthat
7; > ; :<:< :.:::t~.
} In ~he even; mor~;than on~e 1;)frar~~hrs~ rs awarded; te Towrr
~ :
reseri~~s fihe right; t01rm;it the r~~,mber of dtop cables per r~s~dence,: oc to requ~re ~at Ah~ dr~p
: .
cable'(s~ be ;ut1(12~d ~niy c~bfe: operator lect~d' ;by th~ rdent pro~~de servtce:
8~< The wn res6rves the rht ta grarrt an er~croachmant perm~t ta a c~bte
~ranch~s~~ ~ppl~car~t ta jnsfial[ conduit ~nd/or. 0able ~n ant~cI,an ofi II~e gtant~n~ t~f a fr~ricliise:
.
<:<;:........... . a.;;..;.:.;;.::::...::.:::::
nstalta :t~a ;:ns;saif be ~t ~k~~ appl~cant s risk, w,th~ no rec~urse ~~ns~ th~e Town ~r~ the e~rent
t e:ppndlng #ranch~s6 appt~c~t~ort Js r~~t gr~rrted The Tt~wn may r~uire app[1cant t~ pr0v,de
a separate tr~ncM for ~ts;condu;if and/~r ca~(e, ~t th~ a~placan€"s`cost~ Tfe:.c~MSf~uctror~ of
separate trench, ~f ptl
77
etl, sh'~II be : mm'.6oatd1nA~ed wE~h, and'su~~ to, to the tleveloper's o~erall
constructi~n :~che~ul~;
ln ~ddit o
iott 4 ariy t~~ghts ~pectficaity re~et~ed to the To~rn bjr fihis ~ha~pier;' .
the Ttxv~n re~erve s #o ~fislf e~ety r~ghY antl ~aower whI~h is requcr~t~ tQ be r~erv~ed #ay ~~ro~~si~n
of any ~ardIn~n~~ ;e~ the f.r.an9h~se;
b. : ; > <
Th T~wr~ 11; I~av~; the rtgl~i to wa~ve :$ny;;provision p# ~he frarrchi~~;
. .
exce~t thlretl: by ~'edet~t ar ~tate ra~ulan, f the T~wn defermlri:es 1 th~t tt is i~ fl~~'
. . . .
.
pubf~c ;~nterest to; ~o so, arrc~ that fih~ er~forcement ofi st~ch prawist~~r wil( impos~rd~e'
Wdship oh the ~'r~ehise"* c~r the subscrbers 70 be e.:ffectrve; su~h w~i~rer s(~all ~ae eu~d~nce
.<:::..;:.::::<:.: : . . by a state~nent ~n w.r~t~ng a~iu(y a~thor~zed repr~ser~~~t~ue a€he T~iwn VV~~~er ~f ar~y
. . . .
33
Ordinance No. 25, Series o( 1994
prdv?~~Qn ~n Qn~ (1 ~ ~r~~tan~e sf~a~1 not be!dee~nec~ ~ wa~v~r Q# such provI a pon sUbsequent t~ sUVh
~nstance nor be deerried a~ia~~rer af ~ny:other praufs~orr of thq #ranch,s~ unless tf~e sfi~teme~t s~
Mcite5:
Q. t~ an~ area ~f tranchise r~gutat~by theT`own is p'rOempte~ by,~'ed0ral or
St~te 1aw or~ r29`c~l~tio~, ~nd su~h preernpf~on is later eltm:rnated or mfldEfied, #h~ TOwr1, at ~t5'sol~
option, rrt~y assume or reassume :reg~l~tiot~ to: the ea~tent;perrt~itfed by lav~
50. SEVERABILITY
If any provision, section, subsection, sentence, clause or phrase of this Ordinance
is for any reasons held to be unconstitutional, void or invalid or for any reason unenforceable, the
validity of the remaining portions of this Ordinance shall not be affected thereby, it being the intent
of the Town Council in adopting and approving this Ordinance then no portion hereof or provision
or regulation contained herein shall become inoperative or fail by reason of any unconstitutionality
or invalidity of any other portion, provision or regulation and all provisions of this Ordinance are
declared to be severable.
51. If any part, section, subsection, sentence, clause or phrase of this ordinance is for
any reason held to be invalid, such decision shall not affect the validity of the remaining portions
of this ordinance; and the Town Council hereby declares it would have passed this ordinance, and
each part, section, subsection, sentence, clause or phrase thereof, regardless of the fact that any
one or more parts, sections, subsections, sentences, clauses or phrases be declared invalid.
52. The Town Council hereby finds, determines, and declares that this ordinance is
necessary and proper for the health, safety, and welfare of the Town of Vail and the inhabitants
thereof.
53. The repeal or the repeal and reenactment of any provision of the Municipal Code
of the Town of Vail as provided in this ordinance shall not affect any right which has accrued, any
duty imposed, any violation that occurred prior to the effective date hereof, any prosecution
commenced, nor any other action or proceedings as commenced under or by virtue of the
provision repealed or repealed and reenacted. The repeal of any provision hereby shall not
revive any provision or any ordinance previously repealed or superseded unless expressly stated
herein.
54. All bylawrs, orders, resolutions, and ordinances, or parts thereof, inconsistent
herewith are repealed to the extent only of such inconsistency. This repealer shall not be
construed to revise any bylaw, order, resolution, or ordinance, or part thereof, theretofore
repealed.
34
Ordinanca No. 25, Series of 1994
~
. ,
IIVTRODUCED, READ, APPROVED, AND ORDERED PUBLISHED ONCE IN FULL OIV
FIRST READIfVG this day of , 1994, and a public hearing shall be held on this
Ordinance on the _ day of , 1994, at 7:30 p.m. in the Council Chambers of the Vail
fVlunicipal Building, Vail, Colorado.
,
ATTEST: Margaret A. Ostertoss, Mayor
s
a
~
i
\
Holly L. McCutcheon, Town Clerk
READ AIVD APPROVED OfV SECOfVD READING AiVD ORDERED PUBLISHED
this _ day of 1994_
,
ATTEST: Margaret A. Osterfoss, Mayor Holly L. McCutcheon, Town Clerk
C:\ORD9425 ~
35
Ordinance No. 25, Series o} 1994
~
ORD@BdAPICE NO. 26
SERIES OF 1994
AN ORDINANCE GRAPI`PBn9G A CABLE TELEVISIOF@ FF$ANCHBSE
~O C6'1B1LE'47 Ia7IOAtl M iy IOtlC. D/B/PO TQlO 6/PiBLEtl Ie7IoN OF THE
ROiiK0ESy IN'le. II O CO1tlS~RU4dT, B7GVoNST5'6VioT, OPGRO'4TEy 01ND
MA9NTAEfd A CABLE COINIIAUNlCATiONS SYSTEIVI VVBTHBN THE TOVVN
OF !lA9~ PURSUANT TO AIVD SUBJECT TO THE PR01/VS901VS OF
ORD9NANCE N0. 25, SERIES OF 1994.
. NOUV, THEREFORE, BE IT ORDAINED BY THE TOWIV COUNCIL FOR VAIL,
COLORADO:
1) Pursuant to Ordinance fVo. 25, Series of 1994, the franchise agreement between
the Town of Vail, Colorado and Cablevision VI, Inc. d/b/a TCI Cablevision of the Rockies, Inc.,
attached hereto as Exhibi4 A, and made a part hereof by reference, is hereby authorized and
approved, and the Town Manager is hereby authorized and directed to execute said franchise
agreement on behalf of the Touvn.
2) If any part, section, subsection, sentence, clause or phrase of this ordinance is for
any reason held to be invalid, such decisian shall not affect the validity of the remaining portions
of this ordinance; and the Towrn Council hereby declares it would have passed this ordinance, and
each part, section, subsection, sentence, clause or phrase thereof, regardless of the fact that any
one or more parts, sections, subsections, sentences, clauses or phrases be declared invalid.
3) The Town Council hereby finds, determines, and declares that this ordinance is
necessary and proper for the health, safety, and welfare of the Town of Vail and the inhabitants
thereof.
4) The repeal or fihe repeal and reenactment of any provision of the Municipal Code
of the Town of Vail as provided in this ordinance shall not affect any right vuhich has accrued, any
duty imposed, any violation that occurred prior to the effective date hereof, any prosecution
commenced, nor any other action or praceedings as commenced under or by virtue o# the
provision repeated or repealed and reenacted. The repeal of any provision hereby shall not
revive any provision or any ordinance previously repealed or superseded unless expressly stated
herein.
5) All bylaws, orders, resolutions, and ordinances, or parts thereof, inconsisten4
herewith are repealed to fhe extent only of such inconsistency. This repealer shall not be
construed to revise any bylaw, order, resolution, or ordinance, or part thereof, theretofore
repealed.
1
Ordinance No. 26, Series ot 1994
~
n
~
INTRODUCED, READ, APPROVED, AND ORDERED PUBLISHED ONCE IN FULL ON
FIRST READING this day of , 1994, and a public hearing shall be held on this
Ordinance on the _ day of , 1994, at 7:30 p.m. in the Council Chambers of the Vail
Municipal Building, Vail, Colorado.
Margaret A. Osterfoss, Mayor
ATTEST:
Holly L. McCutcheon, Town Clerk
READ AND APPROVED ON SECOND READING ANlD ORDERED PUBLISHED
this _ day of , 1994.
Margaret A. Osterfoss, Mayor
ATTEST:
Holly L. McCutcheon, Town Clerk
C:\ORD9426
2
Ordinance No. 26, Series of 1994
Y
~ EkHIBIT A
The Franchise Agreement vvas distributed to Council on iVovember 8, 1994.
cAoROSazs
3
Ordinance No. 26, Series of 1994
10/03/94
CABLE TELEVISION FRANCHISE AGREEMENT
BETWEEN THE TOWN OF VAIL
AND TCI CABLEVISION OF THE ROCKIES, INC.
AVAIL01-02
TABLE OF CONTENTS
SECTION 1 RENEWAL OF FRANCHISE . . . . . . . . . . . 2
SECTION 2 GENERAL REQUIREMENTS . . . . . . . . . . . . S
SECTION 3 SERVICE AREA AND LINE EXTENSION POLICY 16
SECTION 4 SYSTEM REBUILD . . . . . . . . . . . . . 17
SECTION S SERVICES AND PROGRAMMING . . . . . . . . . 23
SECTION 6 SUPPORT FOR LOCAL CABLE ACCESS 24
SECTION 7 REGULATION . . . . . . . . , . . . . . 26
APPENDICES
A OWNERSHIP
B SURETY GUARANTEE (SAMPLE)
C CONNECTION OF AND SERVICE TO PUBLIC FACILITIES
D GRANTEE COMMI,TMENT TO PEG ACCESS FAC:ILITIES AND EQUIPMENT
1
AGREEMEAIT
THIS AGREEMENT, NIADE AND ENTERED INTO THIS DAY OF
, 1994, BY AND BETWEEN THE TOWN OF VAIL, A MUNICIPAL
CORPORATION OF THE STATE OF COLORADO, AND CABLEVISION V I, INC., DBA
T C I CABLEVISION OF THE ROCKIES, INC., A SUBSIDIARY OF TELE-
COMMiJNICATIONS, INC.
WITAtESSETH
WHEREAS, THE TOWN OF VAIL, PURSUANT TO TITLE 21, CHAPTER
21.02 OF TOWN MUNIGIPAL CODE, IS AUTHORIZED TO GRANT AND RENEW ONE OR
MORE NON-EXCLUSIVE REVOCABLE FRANCHISES TO OPERATE, CONSTRUC7.', MAINTAIN
AND RECONSTRUCT A CABLE TELEVISION SYSTEM WITHIN THE TOWN; AND
WHEREAS, THE TOWN, AFTER DUE EVALUATION OF CABLEVISION VI,
INC., DBA T C I CABLEVISION OF THE ROCKIES, INC., AND AFTER PUBLIC
HEARINGS, HAS DETERMINED THAT IT IS IN THE BEST INTERESTS OF THE TOWN
AND ITS RESIDENTS TO RENEW ITS FRANCHISE WITH CABLEVISION V I, INC.,
DBA T C I CABLEVISION OF THE ROCKIES, INC.
NOW, THEREFORE, THE TOWN OF VAIL (HEREINAFTER "THE GRANTOR" )
HEREBY GRANTS TO CABLEVISION V I, INC., DBA T C I CABLEVISION OF THE
RoCKIES, INC. (HEREINAFTER "THE GRANTEE") A RENEWAL OF ITS rp,gLE
TELEVISION FRANCHTSE IN ACCORDANCE WITH THE PROVISIONS OF TITLE 21,
CHAPTER 21 . 02 AND THIS AGREEMENT.
1 '
SECTION 1 REIdEWAL OF FRMCHISE
1.1 GxMT
THE CABLE TELEVISION FRANCHISE GRANTED ON AUGUST 1 S, 1989, TO
HERITAGE CABLEVISION BY TITLE,2 l, CHAPTER 2 1.0 4 OF THE MUNICIPAL
CODE~ AND NOW HELD BY CABLEVISION VI, INC., DBA T C I CABLEVISION OF
THE ROCKIES, INC., A CORPORATION WHOSE OWNERSHIP IS INDICATED IN
EXHIBIT "A", IS HEREBY RENEWED, SUBJECT TO THE TERMS AND CONDITIONS OF
THIS AGREEMENT. THE RENEWAL EXTENDS THE FRANCHISE, AUTHORITY, RIGHT
AND PRIVILEGE, TO CONSTRUCT, RECONSTRUCT, OPERATE AND MAINTAIN A CABLE
TELEVISION SYSTEM WITHIN THE STREETS AND PUBLIC WAYS IN THE TOWN OF
VAIL AS IT IS NOW OR MAY IN THE FUTURE BE CONSTITUTED. 1.2 RIGHT OF GRATdTOR TO ISSUE APTD RENEW R2APdCHISE
THE GRANTEE ACKNOWLEDGES AND ACCEPTS THE PRESENT RIGHT OF THE
GRANTOR TO ISSUE AND/OR RENEW R FRANCHISE AND THE GRANTEE AGREES IT
SHALL NOT NOW OR AT ANY TIME HEREAFTER CHALLENGE ANY LAWFUL EXERCISE OF
THIS RIGHT IN ANY LOCAL, STATE OR FEDERAL COURT. THIS IS NOT,
HOWEVER, A WAIVER OF ANY CONSTITUTIONAL OR LEGAL RIGHT OR PRIVILEGE ON
THE PART OF THE GRANTEE.
1.3 EFFECTIVE DATE OF REATEWAL
THE RENEWAL SHALL BE EFFECTIVE ON THE DATE THAT BOTH PARTIES HAVE
EXECUTED THIS AGREEMENT, PROVIDED THAT SRID DATE IS NO LATER THAN
THIRTY (30). DAYS AFTER THE DATE THE TOWN COUNCIL, BY RESOLUTION,
2
APPROVES THIS AGREEMENT. THE RENEWAL IS FURTHER CONTINGENT UPON THE
FILING BY THE GRANTEE WITH THE TOWN CLERK, OF THE EXECUTED FRANCHISE
AGREEMENT AND THE REQUIRED SECURITY FUND AND INSLfRANCE CERTIFICATES,
EXCEPT THAT IF THE FILING OF THE SECURITY FUND OR ANY SUCH INSURANCE
CERTIFICATE DOES NOT OCCUR WITHIN SIXTY (60) DAYS AFTER THE EFFECTIVE
DATE OF THE RESOLUTION APPROVING TAIS RENEWAL AND ANY EXTENSION OF TIME
,
HEREUNDER, THE GRANTOR MAY DECLARE THIS RENEWAL nfULL AND VOID.
1.4 DURATION
THE TERM OF THE RENEWAL SHALL BE FIFTEEN (1 S) YEARS FROM THE
EFFECTIVE DATE HEREOF, AT WHICH TIME IT SHALL EXPIRE AND BE OF NO FORCE
AND EFFECT UNLESS RENEWED. RENEWAL SHALL BE IN A.CCORDANCE WITH
APPLICABLE FEDERAL AND STATE LAW.
1 . 'rJ FRANCHISE NOT EXCLUSIVE •
THIS FRANCHISE SHALL NOT BE CONSTRUED AS ANY LIMITATION UPON THE
RIGHT OF THE GRANTOR, THROUGH ITS PROPER OFFICES, AND IN ACCORDANCE
WITH APPLICABLE LAW, TO GRANT TO OTHER PERSONS OR CORPORATIONS RIGHTS,
PRIVILEGES OR AUTHORITY SIMILAR TO THE RIGHTS, PRTVILEGES AND AUTHORITY
HEREIN SET FORTH, IN THE SAME OR OTHER STREETS AND PUBLIC WAYS OR _
PUBLIC PLACES OR OTHER PLACES THE GRANTEE IS ENTI'I'LED TO OCCUPY BY
FRANCHISE, PERMIT OR OTHERWISE, PROVIDED, HOWEVER, THAT SUCH ADDITIONAL
GRANTS SHALL NOT OPERATE TO MATERIALLY MODIFY, REVOKE OR TERMINRTE ANY
RIGHTS GRANTED TO THE GRANTEE HEREIN, AND SHALL BE; IN ACCORD WITH THE
PROVISIONS OF TITLE 21, CHRPTER 21.02.
3
1. G COTdFLICT WITH TITLE LZ , CHAPTER 21. OZ
THE PROVISIONS OF TITLE 21, CHAPTER 21.02, ARE HEREBY
INCORPORATED HEREIN BY REFERENCE AS IF SET OUT IN FULL, AND FORM PART
OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IN EVENT OF ANY
CONFLICT BETWEEN THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THE
PROVISIONS OF TITLE 21, CHAPTER 21.02, THIS AGREEMENT SHALL PREVAIL.
SHOULD TITLE 21, CHAPTER 21.02 BE AMENDED, REVISED, SUPERSEDED OR
OTHERWISE CHANGED AFTER THE EFFECTIVE DATE HEREOF IN SUCH WAY AS WOULD
MATERIALLY AFFECT THE TERMS AND CONDITIONS OF THIS AGREEMENT, SAID
AMENDMENT, REVISION OR CHANGE SHALL NOT APPLY TO THIS AGREEMENT WITHOUT
THE GRANTEE'S APPROVAL.
1.7 DEFIATITIOAiS
THE DEFINITIONS CONTAINED IN TITLE 21, CHAPTER 21.02 ARE
INCORPORATED HEREIN AS IF FULLY SET FORTH.
4
SECTION 2 GENERAL REQUIRIImENTS
2.1 C~sOVERNING REQUIREMENTS
THE GRANTEE SHALL COMPLY WITH ALL LAWFUL RLQUIREMENTS OF THIS
AGREEMENT, TITLE 21, CHAPTER 21.02 AND APPLICABLE STATE AND FEDERAL
LAW.
2.2 FRANCHISE FEE
THE GRANTEE SHALL PAY TO THE GRANTOR AN ANNUAL FRANCHISE FEE OF
FIVE PERCENT (So) OF GROSS ANNUAL REVENiJES RECEIVED BY THE GRANTEE
FROM ALL OPERATIONS OF THE CABLE SYSTEM IN THE TOWN OF VAIL. THE FEE
. SHALL BE PAYABLE QUARTERLY BY MAY 31 FOR THE QUARTER ENDED MAxcx.3 l,
AUGUST 31 FOR THE QURRTER ENDED JUNE 30, NOVEMBER 3 FOR THE QUARTER
ENDED SEPTEMBER 3 O AND FEBRUARY 2 8 FOR THE QUARTER ENDED DECEMBER 3 l.
2.3 PROCESSING COSTS
(A) DURING THE TERM OF THIS RENEWAL, IF THE GRANTEE
INITIATES A REQUEST FOR APPROVAL REGARDING THE TRANSFER OF THIS
FFZANCHISE OR CHANGE IN CONTROL OF THE GRANTEE, THE GRANTEE SHALL
REIMBURSE THE GRANTOR FOR ALL REASONABLE OUT-OF PUCKET COSTS INCURRED BY
THE GRANTOR AS PART OF THE GRANTOR'S REVIEW AND PROCESSING OF THE
REQUEST. ANY SUCH COSTS SHALL NOT BE CHARGED AGATNST ANY FRANCHISE EEE
DUE TO THE GRANTOR DURING THE TERM OF THE FRANCHISE.
(B) TO AID IN THE ANALYSIS AND RESO:LUTION OF ANY FUTURE
DISPUTED MATTERS RELATIVE TO THE FRANCHISE, THE GR.ANTOR AND THE GRANTEE 5
MAY, BY MUTUAL AGREEMENT (BOTH AS TO WHETHER TO HIRE AND WHOM TO '
HIRE), EMPLOY THE SERVICES OF TECHNICAL, FINANCIAL OR LEGAL
CONSULTANTS, AS MEDIATORS. ALL REASONABLE FEES OF THE CONSULTANTS
INCURRED BY THE GRANTOR AND/OR THE GRANTEE IN THIS REGARD SHALL BE
BORNE EQUALLY.
2. 4 IrasvRAvcE
(A) UPON THE EFFECTIVE DATE OF RENEWAL THE GRANTEE SHALL,
AT ITS SOLE EXPENSE, TAKE OUT, AND MAINTAIN DURING THE LIFE OF THIS
AGREEMENT A POLICY OF PUBLIC LIABILITY INSURIaNCE THAT SHALL PROTECT THE
GRANTEE, THE GRANTOR, ITS OFFICIALS, OFFICERS, DIRECTORS, EMPLOYEES AND
AGENTS FROM CLAIMS WHICH MAY ARISE FROM OPERATIONS UNDER THIS AGREEMENT,
WHETHER SUCH OPERATIONS BE BY THE GRANTEE, ITS OFFICIALS, OFFICERS,
DIRECTORS, EMPLOYEES AND AGENTS, OR ANY SUBCONTRACTORS OF GPANTEE. THE
LIABILITY INSUFtANCE SHALL INCLUDE, BUT SHALL NOT BE LIMITED TO,
PROTECTION AGAINST CLAIMS ARISING FROM BODILY AND PERSONAL INJURY AND
DAMAGE TO PROPERTY, RESULTING FROM THE GRANTEE'S AUTOMOBILES, PRODUCTS
AND COMPLETED OPERATIONS. THE AMOUNTS OF INSURANCE SHALL NOT BE LESS
THAN THE FOLLOWING:
SINGLE LIMIT COVERAGE APPLYING TO BODILY AND
a
PERSONAL INJURY AND PROPERTY DAMAGE:
TWO MILLION DOLLARS ($2, OOO, OOO)
6
• THE FOLLOWING ENDORSEMENTS SHALL BE ATTAC:HED TO THE
LIABILITY POLICY: -
(1) THE POLICY SHAI,L COVER ON AN "OCCURRENCE" BASIS.
(2) THE POLICY SHALL COVER PERSONAL INJtifRY AS WELL RS
BODILY INJURY. (3) THE POLICY SHALL COVER BLANKET CONTRACTUAL LIABILITY
SUBJECT TO THE STANDARD UNIVERSAL EXCLUSIONS OF
CONTRACTUAL LIABILITY INCLUDED IN THE CARRIER'S
STANDARD ENDORSEMENT AS TO BODILY INJURIES, PERSONAL
INJURIES AND PROPERTY DAMAGE.
(4) BROAD FORM PROPERTY DAMAGE LIABILITY SHALL BE .
AFFORDED. (5) THE GRANTOR SHALL BE NAMED ADDITIONAI, INSURED ON THE
POLICY.
(6) AN ENDORSEMENT SHALL BE PROVIDED WHICH STRTES THAT THE
COVERAGE IS PRIMARY INSURANCE AND THAT NO OTHER
INSURANCE EFFECTED BY THE GRANTOR WIL:L BE CRLLED.UPON
TO CONTRIBUTE TO A LOSS UNDER THIS COVERAGE.
(7) STANDARD FORM OF CROSS-LIABILITY SHALL BE AFFORDED.
e -
(S) AN ENDORSEMENT STATING THAT THE POLIC`.C SHALL NOT BE
CANCELLED WITHOUT THIRTY (3 O) DAYS NUTICE OF SUCH
CANCELLATION GIVEN TO THE GRANTOR.
(B) THE GRANTOR RESERVES THE RIGHT TO ADJUST THE LIMIT
COVERAGE REQUIREMENTS AT NO MORE OFTEN THAN.EVERY rOUR (4) YEARS. ANY
7
SUCH ADJUSTMENT BY THE GRANTOR WILL BE NO GREATER THAN THE INCREASE IN
THE DENVER METROPOLITAN AREA CONSUMER PRICE INDEX (AI,L CONSUMERS) FOR
SUCH FOUR (4) YEAR PERIOD.
(C) THE GRANTEE SHALL SUBMIT TO THE GRANTOR DOCUMENTATION
OF THE REQUIRED INSURANCE INCLUDING A CERTIFICATE OF INSURANCE SIGNED BY
THE INSURANCE AGENT AND COMPANIES NAMED, AS WELL AS ALL PROPERLY
EXECUTED ENDORSEMENTS.
(D) ANY DEDUCTIBLE OR SELF-INSURED RETENTIONS MUST BE
DECLARED TO THE GRANTOR.
2.5 INDEMNIFICATION
(A) EXCEPT AS OTHERWISE PROVIDED HEREINf THE GRANTEE
SHALL INDEMNIFY, HOLD HARMLESS, RELEASE AND DEFEND THE GRANTOR, ITS
OFFICERS, EMPLOYEES AND AGENTS FROM AND AGAINST ANY AND ALL ACTIONS,
CLAIMSf DEMANDSf DAMAGESf DISABILITY, LOSSESf EXPENSES INCLUDING
ATTORNEY'S FEES AND OTHER DEFENSE COSTS OR LIABILITIES OF ANY NATURE
THAT MAY BE ASSERTED BY ANY PERSON OR ENTITY INCLUDING THE GRANTEE FROM
ANY CAUSE WHATSOEVER INCLUDING ANOTHER'S CONCURRENT NEGLIGENCE ARISING
OUT OF OR IN ANY WAY CONNECTED WITH THE AFORESAID OPERATIONSf THE
EXERCISE OR ENJOYMENT OF THE FRANCHISE RENEWED PURSUANT TO THIS
AGREEMENTf AND/OR THE ACTIVITIES OF THE GRANTEE, ITS SUBCONTRACTORS,.
EMPLOYEES AND AGENTS HEREUNDER. THE GRANTEE SHALL BE SOLELY
RESPONSIBLE AND SAVE THE GRANTOR HARMLESS FROM ALL NIATTERS RELATIVE TO
PAYMENT OF THE GRANTEE'S EMPLOYEES INCLUDING COMPLIANCE WITH SOCIAL
SECURITY, WITHHOLDING, ETC.
8
(B) THIS INDEMNIFICATION OBLIGATION IS NOT LIMITED IN ANY
WAY BY A LIMITATION ON THE AMOUNT OR TYPE OF DAMAGES OR COMPENSATION
PAYABLE BY OR FOR THE GRANTEE UNDER WORKERS' COMPENSATION, DISABILITY
OR OTHER EMPLOYEE BENEFIT ACTS, ACCEPTANCE OF INSURANCE CERTIFICATES REQUIRED UNDER THIS AGREEMENT, OR THE TERMS, APPLICABILITY OR
LIMITATIONS OF ANY INSURANCE HELD BY THE GRANTEE.
( C) THE GFtAiJTOR DOES NOT, AND SHALL NOT, WAIVE ANY RIGHTS
AGAINST THE GRANTEE WHICH IT MAY HAVE BY REASON OF THIS
INDEMNIFICATION, BECAUSE OF THE ACCEPTANCE BY THE GRANTOR, OR THE
DEPOSIT WITH THE GRANTOR BY THE GRANTEE, OF ANY GF THE INSURANCE
POLICIES DESCRIBED IN THIS SECTION.
(D) THIS INDEMNIFICATION BY THE GRANTEE SHALL APPLY TO
ALL DAMAGES AND CLAIMS FOR DAMAGES OF ANY KIND SUFFERED BY REASON OF
ANY OF THE AFORESRID OPERATIONS REFERRED TO IN THTS SECTION, REGRRDLESS
OF WHETHER OR NOT SUCH INSUF2ANCE POLICIES SHALL HAVE BEEN DETERMINED TO
BE APPLICABLE TO ANY OF SUCH DAMAGES OR CLAIMS FOk DAMAGES.
(E) THE GFtANTEE SHALL NOT BE REQUIRED TO INDEMNIFY THE
GRANTOR FOR NEGLIGENCE OR MISCONDUCT ON THE PART C)F THE GRANTOR OR ITS
OFFICIALS, BOARDS, COMMISSIONS, AGENTS, OR EMPLOYEES (HEREINAFTER "SUCH
ACTS"). THE GRANTOR SHALL HOLD THE GRANTEE HARM:{,ESS FROM ANY DAMAGE
RESULTING FROM ANY SUCH ACTS OF THE GRANTOR OR ITS OFFICIALS, BOARDS,
COMMISSIONS, AGENTS OR EMPLOYEES IN UTILIZING ANY PE G ACCESS OR
EMERGENCY ALERT CHANNELS, EQUIPMENT, OR FACILITIE:i AND FOR ANY SUCH ACTS
COMMITTED BY THE GRANTOR IN CONNECTION WITH WORK F'ERFORMED BY THE
9
GRANTOR AND PERMITTED BY THIS AGFtEEMENT, ON OR ADJACENT TO THE CABLE
SYSTEM.
2.6 GRANTEE'S INSURANCE
THE GRANTEE SHALL NOT COMMENCE ANY SYSTEM RECONSTRUCTION WORK OR
PERMITANY SUBCONTRACTOR TO CONIMENCE WORK UNTIL BOTH SHALL HAVE OBTAINED
OR CAUSE TO BE OBTAINED ALL INSURANCE REQUIRED UNDER THIS SECTION.
SAID INSURANCE SHALL BE MAINTAINFD IN FULL FORCE AND EFFECT UNTIL THE
COMPLETION OF RECONSTRUCTION, AND APPROVAL THEREOF BX THE GRANTOR.
2.7 WORKERS COMPENSATION INSURANCE
THE GRANTEE SHALL OBTAIN AND MAINTAIN WORKERS COMPENSATION
INSURANCE FOR ALL THE GRANTEE'S EMPLOYEES, A1JD IN CASE RNY WORK IS
SUBLET, THE GRANTEE SHALL REQUIRE ANY SUBCONTRACTOR SIMILARLY TO PROVIDE
WORKERS COMPENSATION INSURANCE FOR ALL SUBCONTRACTOR'S EMPLOYEES, ALL
IN COMPLIANCE WITH STATE LAWS, AND TO FULLY PROTECT THE GRANTOR FROM
ANY AND ALL CLAIMS ARISING OUT OF OCCURRENCES ON THE WORK. THE GRANTEE
HEREBY INDEMNIFIES THE GRANTOR FOR ANY DAMAGE RESULTING TO IT FROM
FAILURE OF EITHER THE GRANTEE OR ANY SUBCONTRACTOR TO TAKE OUT AND
MAINTAIN SUCH INSURANCE. THE GRANTEE SHALL PROVIDE THE GRANTUR WITH A
CERTIFICATE OF INSURANCE INDICATING WORKERS COMPENSATION COVERAGE PRIOR
TO COMMENCING RECONSTRUCTION OF THE SYSTEM.
2.8 SECURITY FUND
(A) IN ACCORDANCE WITH TITLE 21, CHAPTER 2 1.02, WITHIN
SIXTY (F)O) DAYS OF THE RESOLUTION ADOPTING THIS AGREEMENT, THE GRANTEE
SHALL ESTABLISH AND PROVIDE TO GRANTOR A SECURITY FUND, AS SECURITY FOR
10
THE FAITHFUL PERFORMANCE BY THE GRANTEE OF ALL MATERIAL PROVISION OF
THIS AGREEMENT. THE SECURITY FUND SHALL CONSIST OF TWO (2.) PARTS.
THE FIRST PART SHALL BE A BONDi WHICH MAY BE A COEtPORATE GUARRNTEE AND
WHICH SHALL BE IN THE AMOUNT OF FIVE HUNDRED THOU,SAND DOLLARS
S O O,O O O), AND IN A FORM ACCEPTABLE TO THE GRANTOR'S TOWN ATTORNEX,
AND ESSENTIALLY SIMILAR TO THE EXAMPLE PROVIDED IN EXHIBIT "B". THE '
SECOND PART SHALL BE IN THE AMOUNT OF AT LEAST FIVE THOUSAND DOLLARS
5,00 O) AND SHALL EITHER BE IN THE FORM OF AN IRREVOCABLE LETTER OF
CREDIT, OR A CASH DEPOSIT ESTABLISHED IN A LOCAL E3ANK IN AN INTEREST-
BEARING ACCOUNT PAYABLE TO THE ORDER OE' THE GRANTOR AS TRUSTEE FOR THE
GRANTEE, WITH ALL INTEREST DISTRIBUTED TO THE GRANTEE.
(B) THE BOND SHALL BE MAINTAINED AZ' THE FIVE HUNDRED
THOUSRND DOLLAR ($5O O, 000) LEVEL UNTIL THE SYSTEM REBUILD PROVIDED
FOR IN SECTION 4.1 HEREIN IS COMPLETED/ AT WHICH TIME THE BOND SHALL
BE RELEASED, PROVIDED THERE ARE THEN NO OUTSTANDIIQG MATERIAL VIOLRTIONS
OF THIS AGREEMENT. THE CASH OR LETTER OF CREDIT PORTION OF THE
5ECURITY FUND SHALL BE MAINTAINED AT THE FIVE THOUSAND DOLLAR
($S, OOO) LEVEL THROUGHOUT THE TERM OF THIS AGRE;;MENT, i7NLESS RELEASED
500NER BY THE GRANTOR.
(C) THE SECURITY FUND MAY BE ASSES3ED BY THE GRANTOR FOR
THOSE PURPOSES SPECIFIED IN TITLE 21, CHAPTER 21.02, IN ACCORDANCE
WITH THE PROCEDURES OF SECTION 2.9 HEREIN AND/OR TITLE Z l, CHAPTER
21 . O2 , RS THE CASE MAY BE, PROVIDED THAT THE GRANTEE HAS RECEIVED
WRITTEN NOTICE AND THIRTY (30) DAYS AFTER RECEIP'P OF NOTICE TO CURE ANY
11
MATERIAL VIOLATIONS PRIOR TO ANY ASSESSMENT. AS LONG AS THE GRANTOR
FOLLOWS THE PROCEDURES SPECIFIED HEREIN FOR UTILIZING AND/OR WITHDRAWING
FUNDS FROM SAID SECURITY FUND, THE GRANTEE SHALL NOT INITIATE LITIGATION
OR NON- TOWN ADMINISTRATIVE ACTION TO PREVENT OR IMPAIR THE GRANTOR FROM
ACCESSING THOSE FUNDS. THE GRANTEE'S RECOURSE, IN THE EVENT THE
GRANTEE BELIEVES ANY TAKING OF SECURITY FUNDS IS IMPROPER, SHALL BE
THROUGH LEGAL ACTION AFTER THE SECURITY HAS BEEN DRAWN UPON. .IF THE
GItANTOR'S ACTION OR TAKING IS FOUND TO BE IMPROPER BY ANY COURT OR
AGENCY OF COMPETENT JURISDICTION, THE GRANTEE SHALL BE ENTITLED TO A
REFUND OF THE FUNDS PLUS INTEREST AND/OR AIdY OTHER AWARD WHICH SUCH
COURT OR AGENCY SHALL MAKE.
(D) IF THE GRANTOF2, AFTER FOLLOWING THE PROCEDURES OF
SECTION 2.9 HEREIN, SHALL DRAW [JPON THE LETTER OF CREDIT OR CASH
PORTION OF THE SECURITY FUND, THE GRANTEE SHALL CAUSE THIS PORTION OF
THE SECURITY FUND TO BE RESTORED TO THE ORIGINAL AMOUNT OF FIVE
THOUSAND DOLLARS S, 000) WITHIN THIRTY (30) DAYS OF ANY DRAW.,
FAILURE TO RESTORE SHALL BE DEEMED A MATERIAL BREACH OF THIS AGREEMENT.
(E) NOTHING HEREIN SHALL BE DEEMED A WAIVER OF THE NORMAL
PERMIT AND BONDTNG REQUIREMENTS MADE OF ALL CONTRACTORS WORKING WITHIN
THE TOWN'S RIGHTS-OF-WAY.
2.9 PROCEDURE FOR REMEDY3NG FRANCHISE VIOLATIONS
(A) THE PROCEDURE FOR REMEDYING FRANCHISE VIOLATIONS OR
BREACHES SHALL BE CONSISTENT WITH THE PROCEDURES OF TITLE 21, CHAP.TER
21.02. THE GRANTOR, BY ACTION OF THE TOWN MANAGER OR A DELE;GATE,
12
SHALL FIRST NOTIFY THE GRANTEE OF THE VIOLRTION IN WRITING BY PERSONAL
DELIVERY OR REGISTERED OR CERTIFIED MAIL, AND DENAND CORRECTION WITHIN A
REASONABLE TIME, WHICH SHALL NOT BE LESS THAN FIVE (S) DAYS IN THE
CASE OF THE FAILURE OF THE GRANTEE TO PAY ANY SUM: OR OTHER AMOUNT DUE
THE GRANTOR UNDER THIS AGREE•MENT OR TITLE 21, CIiAPTER 21.02, AND
THIRTY (30) DAYS IN ALL OTHER CASES. IF THE GRANTEE FAILS TO CORRECT
THE VIOLATION WITHIN THE TIME PRESCRIBED OR IF THE GRANTEE FAILS TO
COMNIENCE CORRECTIVE ACTION WITHIN THE TIME PRESCR:IBED AND DILIGENTLY
REMEDY.SUCH VIOLATION THEREAFTER, THE GRANTEE SHA.LL THEN BE GIVEN A
WRITTEN NOTICE OF NOT LESS THAN TWENTY (2 O) DAYS OF A PUBLIC HEARING
TO BE HELD BEFORE THE COUNCIL. SAID NOTICE SHALI, SPECIFY THE ,
VIOLATIONS ALLEGED TO HAVE OCCURRED.
(B) AT THE PUBLIC HEARING, THE COUNCIL SHALL HEAR AND
CONSIDER ALL RELEVANT EVIDENCE, AND THEREAFTER RENDER FINDINGS AND ITS
DECISION.
(C) IN THE EVENT THE.COUNCIL FINDS THAT THE GRANTEE HAS
CORRECTED THE VIOLATION OR HAS DILIGENTLY CONIIMENCED CORRECTION OF SUCH
VIOLATION AFTER NOTICE THEREOF FROM THE GRANTOR AND IS DILIGENTLY
PROCEEDING TO FULLY REMEDY SUCH VIOLATION, OR THAT NO MATERIAL VIOLATION
HAS OCCURRED, THE PROCEEDINGS SHALL TERMZNATE AND NO PENALTY OR OTHER
SANCTION SHALL.BE IMPOSED. IN DETERMINING WHETHER A VIOLATION IS
MATERIAL, THE GRANTOR SHALL TAKE INTO CONSIDERATION THE RELIABILITY OF
THE EVIDENCE OF THE VIOLATION, THE NATURE OF THE 'VIOLATION AND THE
DAMAGE (IF ANY)~ CAUSED TO THE GRANTOR THEREBY, WHETHER THE VIOLATION
13
WAS CHRONIC, AND ANY JUSTIFYING,OR MITIGATING CIRCUMSTANCES AND SUCH
OTHER MATTERS AS THE GRANTOR MAY DEEM APPROPRIATE.
(D) IN THE EVENT THE COUNCIL FINDS THAT A MATERIAL
' VIOLATION EXISTS AND THAT THE GRANTEE HAS NOT CORRECTED THE SAME IN A.
SATISFACTORY MANNER OR HAS NOT DILIGENTLY CONID4ENCED CORRECTION OF SUCH
VIOLATION, THE COUNCIL MAY IMPOSE LIQUIDATED DAMAGES, ASSESSABLE FROM
THE SECURITY FUND, OF UP TO ONE THOUSAND DOLL.4RS .($1, 000) PER DAY OR
PER INCIDENT, FOR UNEXCUSED VIOLATIONS OF THE SYSTEM REBUILD COMPLETION
SCHEDULE PROVIDED IN SECTION 4.1 HEREIN, AND UP TO TWO HUNDRED DOLLARS
2 O O) PER DAY OR PER INCIDENT FOR ALL OTHER VIOLATIONS, PROVIDED THAT
ALL VIOLATIONS OF A SIMILAR NATURE OCCURRING AT THE SAME TIME SHALL BE
CONSIDERED ONE (1) INCIDENT.
2.10 RESERVATION OF RIGHTS
THE GRANTOR AND THE GRANTEE RESERVE ALL RIGHTS THAT THEY MAY
POSSESS UNDER THE LAW UNLESS EXPRESSLY WAIVED HEREIN.
2.11 STATE AND FEDERAL PREEMPTION
IN THE EVENT THAT THE STATE OF FEDERAL GOVERNMENT DISCONTINUES
PREEMPTION IN AREA OF CABLE COMMUNICATIONS OVER WHICH IT CURRENTLY
EXERCISES JURISDICTION IN SUCH MANNER AS TO EXPAND RATHER THAN LIMIT
MUNICIPAL REGULATORY AUTHORITY, THE GRANTOR MAY, IF IT SO ELECTS, ADOPT
RULES AND REGULATIONS IN THESE AREASr TO THE EXTENT PERMITTED IN THE
THEN APPLICABLE LAW OR REGULATION.
14
SECTION 3 SERVICE AREA AND LINE EXTENSION POLICY
3.1 FRANCHISE AND SERVICE AREA
THE GRANTEE'S FRANCHISE AND SERVICE AREAS SHALL BE THE ENTIRE ° TOWN OF VAIL, AS NOW CONSTITUTED AND AS MAY BE CONSTITUTED DUR2NG THE
TERM OF THIS AGREEMENT. THE GRANTEE SHALL OFFER THE FULL RANGE OF
RESIDENTIAL CRBLE SERVICES TO ALL RESIDENTS OF THE TOWN, AT STANDARD INSTALLATION CHARGES.
3. Z COMMERCIAL AREAS
FOR AREAS OF THE TOWN THAT ARE PRIMARILY CONIIKERCIAL, THE GRANTEE
SHALL INSTALL, OR CRUSE TO BE INSTALLED, APPROPRI.ATE CONDUIT AT ANY
TIME THAT OPEN UTILITY TRENCHES ARE AVAILABLE AND THE GRANTEE HAS
RECEIVED AT LEAST TEN (10) WORKING DAYS ADVANCE rfOTICE OF THE
AVAILABILITY OF THE TRENCHES. RESIDENCES IN PRIMARILY COMMERCIAL AREAS
SHALL BE PROVIDED WITH CABLE SERVICE UPON REQUEST, ON A TIME AND
MATERIALS BASIS.
15
SECTION 4 SYSTEM REBUILD
4.1 REBUILD
(A) THE GRANTEE SHALL REBUILD, AS APPROPRIATE, TAE
EXISTING'CABLE SYSTEM TO PROVIDE AN OPERATING FREQUENCY RANGE OF AT •
LEAST FIFTY FOUR MEGAIiERTZ (54 MHz) TO FIVE HUNDRED FIFTY MEGAHERTZ
( 550 MHz WITHIN THIRTY-SIX (36) MONTHS OF THE EFFECTIVE DATE OF
THIS AGREEMENT. COMPLETION OF CONSTRUCTION SHALL BE DEFINED AS THE
ABILITY TO PROVIDE, WITHOUT DIGITAL COMPRESSION, UP TO SEVENTY-EIGHT
(7 CHANNELS OF VIDEO PROGRAMMING TO ALL RESIDENTIAL SUBSCRIBERS
WITHIN THE TOWN, AS WELL AS SATISFACTORY COMPLETION OF ANY PERMIT-
SPECIFIED REQUIREMENTS AND THE PUBLIC BUILDING CONNECTIONS PROVIDED IN
SECTION 4.2 AND EXHIBIT "C" HEREIN.
(B) THE REBUILD SHALL UTILIZE A"FIBER OPTICS TO THE
SERVICE AREA" DESIGN IN WHICH OPTICAL FIBER DELIVERS SIGNALS FROM A
CENTRAL HUB TO NODES SERVING APPROXIMATELY FIFTY (50) TO ONE THOUSAND
(l,000) RESIDENCES. THE NODES SHALL INTERFACE THE OPTICAL FIBER WITH
COAXIAL CABLES WHICH DISTRIBUTE SIGNALS TO CABLE SUBSCRIBERS, AND ALSO
SERVE AS INPUT-OUTPUT POINTS FOR CONNECTION TO PUBLIC BUILDINGS AND
BUSINESSES.
4.2 INTERACTIVE CONNECTION TO PUBLIC BUILDINGS
NO LATER THAN THE COMPLETION OF THE SYSTEM REBUILD PROVIDED IN
SECTION 4.1(A) ABOVE, THE GRANTEE SHALL CONNECT EACH OF THE PUBLIC
BUILDINGS LISTED IN EXHIBIT "C", PARAGRAPH 1, TO A FIBER OPTIC NODE OF
16
THE SYSTEM SO AS TO PROVIDE THE CAPABILITY TO TRANSMIT AND RECEIVE
BROADBAND VIDEO, DATA AND VOICE COMMUNICATIONS BETWEEN TWO (2) OR MORE
PUBLIC BUILDINGS, CONTINGENT ONLY UPON THE FUTURE INSTALLATION OF
APPROPRIATE TERMINAL AND INTERFACE EQUIPMENT AT THE TRANSMISSION AND
RECEPTION PUBLIC BUILDING LOCATIONS. THE "PRIOR:LTY"'BUILDINGS LISTED
IN C- 1(A) SHALL BE PROVIDED WITH ACTIVATED TWO-WAY COMMIJNICATIONS
CAPABILITY, WHILE THE PUBLIC BUILDINGS LISTED IN L- 1(B) SHALL INITIALLY
BE PROVIDED WITH ONE-WAY DOWNSTREAM CONNECTIONS, WHICH CAN BE UPGRADED
IN THE FUTURE TO INTERACTIVE STATUS. THE ACQUISITION AND INSTALLATION
OF TERMINAL AND INTERFACE EQUIPMENT SHALL BE THE kESPONSIBILITY OF THE
GRANTOR, WHILE THE INSTALLATION AND MAINTENANCE OE NETWORK FACILITIES
AND EQUIPMENT EXTERNAL TO THE PUBLIC BUILDINGS SHALL BE THE
RESPONSIBLITY OF THE GRANTEE.
4.3 DEVELOPMENT OF INTERACTIVE PUBLIC COMMIJNICATIONS SERVICES
(A) THE GRANTOR AND THE GRANTEE SHALL COOPERATE IN AN EFFORT TO UTILIZE THE INTERACTIVE COMMLJNICATIONS CAPABILITIES OF THE
REBUILT SYSTEM TO DEVELOP AND EVALUATE PiJBLIC COMMUNICATIONS SERVICES.
NO NETWORFC USAGE CHARGES SHALL BE APPLIED, FOR THF TERM OF THE
FRANCHISE, FOR GRANTEE SUPPORT OF TRADITIONAL ONE--WAY PE G ACCESS
SERVICES SUCH AS THE UTILIZATION OF OPEN-CIRCUIT A.CCESS CHANNELS. FOR
A PERIOD OF THREE (3) YEARS SUBSEQUENT TO THE INTERACTIVE CONNECTION OF
THE "PRIORITY" BUILDINGS IN EXHIBIT C- 1(A) [THE "TEST AND EVALUATION
PERIOD"], GRANTEE SHALL NOT APPLY ANY NETWORK CHARGES TO INTERACTTVE
17
VIDEO AND DATA CLOSED-CIRCUIT COMMUNICATIONS ORIGINATING FROM, OR
RECEIVED AT, ANY PRIORITY BUILDING.
(B) DURING THE TEST AND EVALUATION PERIOD, THE GRANTEE
SFIALL PROVIDE APPROPRIATE CONSULTANT AND TECHNICAL SUPPORT TO THE
GRANTOR TO ASSIST IN THE DESIGNi DEVELOPMENT AND TESTING OF NEW
INTERACTIVE SERVICES OF INTEREST TO THE GRFINTOR. THE TERMS AND
CONDITIONS OF THIS SUPPORT SHALL BE SPECIFIED IN A DEVELOPMENT AGREEMENT
TO BE NEGOTIATED BETWEEN THE GRANTOR AND THE GRANTEE.
(C) ANY SERVICES DEVELOPED THROUGH THE USE OF THE CABLE
SYSTEM FACILITIES SHALL BE IN ACCORDANCE WITH APPLICABLE LAW, AND SHALL
NOT SUBJECT THE GRANTEE TO REGULATION AS A PUBLIC UTILITY.
4.4 FUTURE SYSTEM MODIFICATIONS
(A) TO ASSURE THAT THE GRANTEE'S CABLE SYSTEM CONTINUES
TO.REFLECT THE GENERAL CABLE INDUSTRY STATE-OF-THE-ART THROUGHOUT THE
TERM OF THE FRANCHISE, THE GRANTOR AND THE GRANTEE AGREE TO UTILIZE
CRBLE SYSTEMS IN THE FOLLOWING COLORADO COMMUNITIES AS A BASIS FOR
COMPARISON. THE COMPARISON COMMiJNITIES (ALSO REFERRED TO AS THE
"COMPARISON GROUP") SHALL BE:
(1) BRIGHTON (S)
(2) I DRHO S PRINGS (6)
(3) LovEi,P.rrD (7)
(4) CANYON CITY (8)
(B) THE GRANTOR AND THE GRANTEE AGREE THAT SUBSEQUENT TO
THE COMPLETION OF THE REBUILD REQUIRED IN SECTION 4.1 ABOVE, BUT NOT
18
SOONER THAN FIVE (S) YEARS AFTER THE EFFECTIVE DATE OF THIS AGREEMENT,
WHEN THREE (3) OR MORE OF THE CABLE SYSTEMS IN THE COMPARISON GROUP (ALSO REFERRED TO AS THE "COMPARISON SUB-GROUP") OFFER VIDEO -
PROGRAMMING SERVICES.WHICH EXCEED THE SERVICES PROVIDED ON THE GRANTEE'S
SYSTEM BY TEN (10) SERVICES• OR MORE, THE GRANTOFt MAY REQUIRE THE
GRANTEE TO PROVIDE ADDITIONAL VIDEO PROGRAMMING SERVICES TO MEET OR
EXCEED THE AVERAGE PROVIDED BY THE COMPARISON SUB-GROUP. THE GRANTEE SHALL COMPLETE THE MODIFICATION WITHIN SIX (F)) MUNTHS OF RECEIPT OF THE
GRANTOR REQUEST, SUBJECT TO THE AVAILABILITY OF SYSTEM CHANNEL
CAPACITY. (C) THE GRANTOR AND THE GRANTEE FURTHER AGREE THAT
SUBSEQUENT TO THE COMPLETION OF THE REBUILD REQUIF:ED IN SECTION 4.1
ABOVE, WHEN THREE (3) OR MORE OF THE CABLE SYSTEbiS IN THE COMPARISON
GROUP HAVE ACTIVATED UPSTREAM COMM[JNICATIONS CAPACITY AND ARE OFFERING
' INTERACTIVE RESIDENTIAL SERVICES, WHICH MAY INCLUL)E BUT ARE NOT LIMITED
TO TELEPHONE AND DATA COM[INICATIONS, THE GRANTOR MAY REQUIRE THE
GRPNTEE TO RCTIVATE THE UPSTREAM CAPACITY OF THE CzRANTEE'S SYSTEM. THE
GRANTEE SHALL COMPLETE THIS ACTIVATION WITHIN TWELVE (12) MONTHS OF
RECEIPT OF THE GRANTOR REQUEST.
(D) IF AN UPGRADE REQUEST PURSUANT TO SECTION 4.3(B) OR
(C) ABOVE IS MADE BY THE GRANTOR, AND THE COST OF SUCH AN UPGRADE WILL
EXCEED ONE MILLION DOLLARS ($1, 000, O O O), THE GiRANTEE SHALL BE
ENTITLED TO APPROPRIATE COMPENSATION INCLUDING, BUT NOT NECESSARILY
LIMITED T0, AN EXTENSION OF THE FRANCHISE TERM.
4. S EMERGENCY ALERT CAPABILITY
19
WITHIN SIX (6) MONTHS OF THE EFFECTIVE DATE OF THIS AGREEMENT,
THE GRANTEE SHALL PROVIDE THE SYSTEM CAPABILITY TO TRANSMIT AN EMERGENCY
ALERT SIGNAL TO ALL PARTICIPATING SUBSCRIBERS, IN THE FORM OF AN AUD20
OVERRIDE CAPABILITY TO PERMIT THE GRANTOR TO INTERRUPT AND CABLECAST AN
AUDIO MESSAGE ON ALL CHANNELS SIMULTANEOUSLY IN THE EVENT OF DISASTER OR
PUBLIC EMERGENCY. THIS CAPABILITY SHALL CONTINUE TO BE OPERATIONAL
DURING AND SUBSEQUENT TO THE SYSTEM REBUILD REQUIRED BY SECTION 4.1
ABOVE.
4 . F STANDBY POWER
CONCURRENT WITH THE SYSTEM REBUILD PROVIDED IN SECTION 4.1 ABOVE,
THE GRANTEE SHALL PROVIDE STANDBY POWER GENERATING CAPACITY AT THE CABLE
COMMiJNICATIONS SYSTEM CONTROL CENTER AND CAPABLE OF PROVIDING AT LEAST
TWELVE (12) HOURS OF EMERGENCY SUPPLY. THE GRANTEE SHALL MAINTAIN
STANDBY POWER SYSTEM SUPPLIES THROUGHOUT THE COAXIAL CABLE PORTION OF
THE SYSTEM, CAPABLE OF PROVIDING EMERGENCY POWER WITHIN THE STANDARD
LIMITS OF COMrERCIALLY AVAILABLE POWER SUPPLY UNITS.
4.7 PARENTAL CONTROL LOCK
THE GRANTEE SHALL PROVIDE, FOR SALE OR LEASE, TO SUBSCRIBERS,
UPON REQUEST, A PARENTAL CONTROL LOCKING DEVICE OR DIGITAL CODE THAT
PERMITS INHIBITING THE VIDEO AND AUDIO PORTIONS OF PREMIUM CHANNELS.
4 . S STATUS MONITORING
THE GRANTEE SHALL PROVIDE AN AUTOMATIC STATUS MONITORING SYSTEM OR
A FUNCTIONAL.EQUIVALENT WHEN THE CABLE SYSTEM HAS BEEN ACTIVATED FOR
20
INTERACTIVE SERVICE PROVIDED THAT SUCH STATUS MONITORING IS TECHNICALLY
AND ECONOMICALLY PROVEN T•O THE GRANTEE'S SATISFACTION.
4.9 TECHNICAL STANDARDS
THE FEDERAL COMMUNICATIONS COMMISSION (FC C) RULES AND
REGULATIONS, PART 76, SUBPART K( TECHNICAL STANDARDS AS AMENDED
FROM TIME TO TIME, SHALL APPLY, TO THE EXTENT PERMITTED BY APPLICABLE
LAW.
4. ZO RIGHT OF INSPECTION
THE GRANTOR SHALL HAVE THE RIGHT TO INSPECT ALL CONSTRUCTION,
RECONSTRUCTION OR INSTALLATION WORK PERFORMED SUBJECT TO THE PROVISIONS
OF THE FRANCHISE AND OTHER PERTINENT PROVISIONS OF LAW, AND AS PART OF
THE GRANTOR'S OBLIGATION TO PROTECT THE PUBLIC HE.FILTH, SAFETY AND
WELFARE OF ITS CITIZENS.
21
SECTION S SERVICES AND PROGRAMMING
5.1 SERVICES AND PROGRAMMING
THE GRANTEE SHALL PROVIDE THE GRANTOR WITH R LIST OF VIDEO AND
OTHER SERVICES OFFERED, WHICH LIST SHALL BE UPDATED EACH TIME A CHANGE
IS MADE. TAE GRANTEE SHALL NOT REDUCE THE NUMBER OF SERVICES WITHOUT THIRTY (30) DAYS PRIOR WRITTEN NOTIFICATION TO THE GRANTOR AND SYSTEM
SUBSCRIBERS, PROVIDED THAT GRANTEE HAS ADEQUATE KNOWLEDGE AND
NOTIFICATION, IF SUCH A CHANGE IS CAUSED BY EXTERNAL CIRCUMSTANCES.
5.2 LEASED CHANNEL SERVICE
THE GRANTEE SHALL OFFER LEASED CHANNEL SERVICE ON REASONABLE TERMS
AND CONDITIONS AND IN ACCORDANCE WITH APPLICABLE LAW.
22
.
SECTION F) SUPPORT FOR LOCAL CABLE ACCESS
6. 1 PEG AccESS OPERATING COSTS
BASED ON THE PROVISIONS OF THE CABLE COMMUNICATIONS POLICY ACT OF
1984 AND FUTURE APPLICABLE LRW, THE GRANTOR SHAL:L DETERMINE FROM TIME
a TO TIME THE FUNDING LEVEL THAT THE GRANTOR DESIRES TO MAKE AVAILABLE
FOR PUBLIC, EDUCATIONAL AND GOVERNMENTAL (PE G) A(:CESS OPERATING COSTS,
AND THE MOST APPROPRIATE ENTITY OR ENTITIES TO MANAGE PE G ACCESS
OPERATIONS.. ANY GRANTOR ALLOCATION OF GRANT FUND'a' PROVIDED BY EXHIBIT
D.2 FOR EQUIPMENT, FACILITIES AND CHANNELS FOR PE:G ACCESS USE SHALL BE
BASED UPON AN OPERATING PLAN, APPROVED BY COUNCIL RESOLUTION, WHICH
DELINEATES THE SOURCE OF THE OPERATING FUNDS TO THE EXTENT SPECIFIED IN
EXHIBIT "D".
6.2 GRANTEE SUPPORT FOR PE G USAGE
THE GRANTEE SHALL PROVIDE THE FOLLOWING OR FQUIVALENT SUPPORT FOR
PE G CABLE USAGE WITHIN THE FRANCHISE AREA:
(A) PROVISION AND USE OF.THE'GRANT :EUNDS AND CHANNELS
DESIGNATED IN EXHIBIT I'D" OF THIS AGREEMENT FOR LOCAL PE G ACCESS
EQUIPMENT AND FACILITIES IN ACCORDANCE WITH THE REQUIREMENTS OF EXHIBIT
I'D " .
(B) MAINTENANCE OF THE GRANTEE'S PE G ACCESS FACILITIES
AND CHRNNELS, AND SUPPORT OF PE G PROGRAMMING TO THE EXTENT SPECIFIED IN
EXHIBIT I'D" OF THIS AGREEMENT.
23
,
(C) PROVISION OF FREE PUBLIC BUILDING INSTALLATION AND
BASIC SERVICE, AND PROVISION OF INTERACTIVE COMMUNICATIONS CAPABILITY,
TO AND/OR FROM THE LOCATIONS SPECIFIED IN EXHIBIT "C".
6.3 COMPLIANCE WITH FEDERAL LAW
IN ACCEPTING THIS FRANCHISE, THE GFtANTEE AGREES THAT THE
COMMITMENTS INDICRTED IN SECTION 6.2 ABOVE ARE VOLUNTARILY ENTERED INTO
AND WILL NOT BE CHARGED AGAINST ANY FRANCHISE FEES DUE TO THE GRANTOR
DURING THE TERM OF THE FRANCHISE.
24
s
SECTION 7 REGULATION
7.1 FRANCHISE REGULATION
THE FRANCHISE RENEWED UNDER THIS AGREEMENT SHALL BE SUBJECT TO
REGULATION BY THE GRANTOR IN•ACCORDANCE WITH ALL OF THE LANiFUL
PF20VISIONS OF TITLE 21, CHAPTER 21.02, AND APPLICABLE FEDERAL AND
STATE LAW.
7.2 FORCE MAJEURE
THE FORCE MAJEURE PROVISIONS OF TITLE 21, CHAPTER 21.02 SHALL
APPLY.
0
25
0
IN WITNESS WHEREOF, THE GRANTOR AND THE GRANTEE HAVE EXECUTED THIS
B
AGREEMENT THE DATE AND YEAR FIRST ABOVE WRITTEN.
APPROVED AS TO FORM: TOWN OF VAIL
BY: '
DATE:
ATTEST:
TOWN CLERK
( S EAL )
CABLEVISION VI, INC., DBA TCI
CABLEVISION OF THE ROCKIES, INC.
(CORPORATE SEAL) BY:
NAME, TITLE.
DATE:
26
0
EXHIBIT A
OWNERSHIP
(TO BE PROVIDED BY TCI)
0
EXHIBIT B SURETY GUARANTEE
( SANNIPLE )
0
EXHIBIT C
CONNECTION OF AND SERVICE TO PUBLIC FACILITIES
0
0
C-1
1. IATITIAL CONNECTIOAi
(a) The following "Priority" public buildings
shall be connected, with activated interactive
communications capacity, contingent only upon the
installation of internal terminal and interface equipment,
at no installation charge, to the nearest fiber optic node
of the rebuilt cable system, no later than the completion
date of the system rebuild provided in Section 4.1 of this
Agreement:
Building Identification Location
(b) The followinq public buildings shall be
connected, with "interactive-capable" capacity, at no installation charges, to the nearest fiber optic node of the
rebuilt cable system, no later than the completion date of .
the system rebuild provided in Section 4.1 of this
Agreement.
Building Identification Location
2. Services provided The following public buildings
shall continue to be provided with the highest level of
' o
,
C-2
basic cable service, at no monthly charge, throughout the
term of the franchise:
Building Identification Location •
3. internal cabling of Schools The following
schools shall be internally cabled by the Grantee, so that a
minimum of five (5) rooms per school, as designated by a
cognizant school representative, shall bED capable of
receiving video and/or data communications transmitted by the Grantee or an authorized public agenry:
Building Identification Location
o 0
a
c-1 • ,
EXHIBIT D
GRANTEE COMMITMENT TO
PEG ACCESS FACILITIES AND EQUIPMENT
~
R
D-1
EXHIBIT D: GRANTEE COMMITMENT TO PEG ACCESS FACILITIES AND
EQUIPMENT
1. PUBLIC, EDUCATIONAL AND GOVERNMENT (PEG) ACCESS
CHANNELS (a) Upon the effective date of this
Agreement, the Grantee shall make one (1) "open" video
channel available exclusively for PEG use. An "open"
channel is defined as one available to all cable
subscribers. This channel shall be ded:icated for the term
of the franchise renewal, provided that the Grantee may
utilize any portion of this channel dur-l_ng any time when it
is not scheduled for PEG use. The Grant:or and the Grantee
shall establish rules and procedures for such scheduling in
accordance .with Section 611 of the Cable Communications
Policy Act of 1984.
(b) Upon completion of the system rebuild to Five
Hundred Fifty Megahertz (550 MHz) capacity, the Grantor may
request and the Grantee shall provide up to a total of two
(2) "open" channels for PEG use. The Grantor may not submit .
such a request unless the PEG channel al:ready being utilized
is cablecasting at least twenty (20) hours per month for a
period of six (6) consecutive months, of locally produced
video programming on each channel already designated for PEG
use, and, further, that additional contemplated PEG
P n
d
0
D-2
programming cannot effectively utilize the existing channel
during the time it is available.
(c) Upon completion of the system rebuild, the Grantee
also shall dedicate to the Grantor sufficient interactive capacity on the fiber optics portion of its cable system for
PEG access use to permit the public facilities listed in
Exhibit C.l to transmit and/or receive video, data and voice
communications either to the public, or internally on a .
closed-circuit basis. •
2. PROVISION OF PEG ACCESS EQUIPMENT AND FACILITIES
(a) Upon the effective date of this Agreement, the
Grantee shall provide a PEG Access Equipment Fund equal to
fifty cents ($0.50) per subscriber per month for individual
residential subscribers, and twenty-five cents ($0.25) per
subscriber per month for subscribers subject to bulk-
billing, to be utilized solely for PEG access equipment and
facilities. PEG access equipment and facilities are defined
to include, but not be limited to, data communications
terminal equipment as well as video equipment.
(b) The PEG Access Equipment Fund shall be paid by
Grantee to Grantor quarterly, on a concurrent basis with the
franchise fee. If not expressly prohibited by Federal or
State law or regulations, Grantee may itemize on subscriber
bills the PEG access grant as an "external cost" on
subscriber bills, where the term "external cost" shall be as
r 1
'i
v
D-3
described in any applicable Federal Communications
Commission rate regulations. If, at any time in the future,
Federal or State regulations expressly prohibit such an
external cost treatment, then Grantee s:hall pay to Grantor,
as compensation for the loss of the PEG Access Equipment .
Fund, the following amounts:
(1) If the external.cost treatment prohibition
takes effect in the years one (1) through seven (7) of the
franchise term, the sum of Seventy-Five Thousand Dollars
($75, 000) .
(2) If the external cost trea.tment prohibition
takes effect after the seventh anniversary of the effective
date of the franchise, no compensation shall be required. .
(c) Al1 funds under this grant shall be allocated in
accordance with an operating plan approved by resolution of
the Town Council. Each operating plan shall contain, as a
miniinum, the following information:
(1) List of intended PEG users.
(2) Planned type and level of programming or
communications service for each user.
(3) Capital equipment, facilit:ies and estimated
costs required to support the intended uses. This shall
include a survey of existing publicly-owned equipment that
might be available for the intended purposes.
r ~
~
0
D-4
(4) User commitments by the Grantor or a PEG user
to cover operating expenses for at least a three (3) year
period.
(5) An evaluation that the existing public
facilities and equipment are inadequate to meet the.needs of
the operating plan.
3. PEG operations
The Grantor may negotiate agreements with
neighboring jurisdictions served by the same cable system,
educational institutions, or others to share operating
expenses as.appropriate. The Grantor and the Gra.ntee may
negotiate an agreement.for management of PEG facilities
and/or channel capacity, if so desired by the parties.
4. Title to PEG equipment
The Grantor shall retain title to all PEG
equipment provided with funding made available in accordance
with paragraph 2 above. S. relocation of PEG channels
If the Grantee relocates any PEG access channel to
a different channel number, the Grantee shall reimburse the
Grantor for any out-of-pocket Grantor costs incurred as a
result of the relocation. The Grantee shall provide the
Grantor and all subscribers with at least thirty (30) days
written notice of such relocation.
6. promotion of PEG access
n ~
T
D-5 •
The Grantee sYiall al.low the Grantor to place bill
stuffers in the Grantee's subscriber statements at a cost to
the Grantor not to exceed the Grantee's cost, no more than
twice per year upon the written request of the Grantor and .
at such times that the placement of such materials would not
effect the Grantee's cost for the produc-tion and mailing of
such statements. The Grantor agrees to pay the Grantee in
advance for the actual cost of such bill stuffers. The
Grantee shall also make available access information
provided by the Grantor in subscriber parkets at the time of
installation and at the counter in the_system's business
office. The Grantee shall also distribul=e, at no charge to
the Grantor, through advertising insertion equipment, no
more than twice annually, promotional and awareness
commercial spots produced at the Grantor"s cost and
submitted by the Grantor in a format compatible with such
equipment once the Grantee has acquired and activated such
capability.
.
,
, ORDINANCE N0. 27
- Series of 1994
AN ORDINANCE ADOPTING A NEW TOWN OF VAIL
POLICE AND FIRE EMPLOYEES' PENSZON PLAN
5UBJECT TO APPRO'VAL BY SIXTY-FIVE PERCENT (65$)
OF THE TOWN'S POLICE AND FIREMEN;
AAID SETTING FOP,TH DETAILS IN REGARD THERETO.
WHEREAS, the Town.of Vail has adopted a Police and Firemen's
Pension Plan, the effective date of which was January 1, 1983 and -
has adopted a first, second, third, fourth, fifth, and sixth
amendment to said plan, the effective dates of which were September
20, 1983, May 2, 1984, December 4, 1984, June 18, 1986, August 17,
1988, and August 7, 1990, respectively; and
wIIEREAS, the Police and Fire employees of the Town of Vail now
wish to adopt a new Town of Vail Police and Fire Employees' Pension
Plan, as attached hereto and incorporated by reference; and
wiIEREAS, such new plan must be approved by the Town Council of
the Town of Vail; and
WHEREAS, the new Town of Vail Police and Fire Employees'
Pension Plan has been approved by 65% of the police and fire
employees of the Town of Vail.
NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN
OF VAZL, COLORADO:
1. The Town of Vail Police and Fire Employees' Pension Plan
which is attached hereto and incorporated herein by reference is
hereby approved by the Town Council as has been approved by sixty-
five percent (65%) of the police and fire employees of the Town of
vail. '
2. If any par[, section, subsection, sentence, clause or
phrase of this Ordinance is for any reason held to be invalid, such
decision shall not affect the validity of the remaining portions of
this Ordinance; and the Town Council hereby declares it would tiave
passed this Ordinance, and each part, section, subsection,
sentence, clause or phrase thereof, regardless of the fact that any
one or more parts, sections, subsections, sentences, clauses or
phrases be declared invalid.
3. The Town Council hereby finds, determines and declares
chat this Ordinance is necessary and proper for the health, safety
and welfare of Che Town of vail and the inhabitants thereof.
4. The repeal or the repeal and reenactment of any provision
of the Municipal Code of the Town of Vail as provided in this
Ordinance shall not affect any right which has accrued, any duty
imposed, any violation that occurred prior to the effective date
hereof, any prosecution commenced, nor an}, other action or
. proceedings as commenced under or by virtue of the provision
repealed or repealed and reenacted. The repeal of any provision
hereby shall not revive any provision or any ordinance previously
,
' Y
repealed or superseded unless expressly stated herein. •
5. All bylaws, orders, rfasolutions, and ordinances, or parts
the=eof, inconsistent herewith are repealed to the extent only of
such inconsistency. This repealer shall not be construed to revise
any bylaw, order, resolution, or ordinance, or part thereof,
heretofore repealed.
INTRODUCED, READ AND APPROVED ON FIRST READING this day
of , 1994, and a public hearing shall be held on this Ordinance on the . day of _ , 1994 at 7:30 P.M. in the
Council Chambers of the Vail Municipal Building, Vail, Colorado.
Ordered published in full this day of ,
1994.
Margaret A. Osterfoss, Mayor .
ATTEST:
Holly L. McCutcheon, Town Clerk
INTRODUCED, READ AND APPROVED ON SECOND READING AND ORDERED
PUBLISHED this day of
, 1994.
Margaret A. Osterfoss, Mayor
ATTEST:
Ho11y L. McCutcheon, Town Clerk
a
TOWN OF VAIL
POLICE AND FIRE EMPLOYEES' PENSION PLAN
SAW2084\92679.2 .
~
TABLE OF CONTENTS
Pacre
~ ARTICLE I
. NAME AND PURPOSE OF PLAN . . . . . . . 1
ARTICLE 2I ~
DEFINI'I'IONS . . . . . . . . . . . 1
Section 2.1 "Administ:rator" . . . . . . . . . , 1
Section 2.2 "Anniversary Date" . . . . . . . : . 2
S;ection 2.3 "Beneficiary" . . . . . . . . . . . 2
Section 2.4 "Break ir.i Service" . . . . . . . . . 2
Section 2.5 "Code" . . . . . . . . . . . . . . . 2
Section 2.6 "Compensation" . . . . . . . . . . . 2
Section 2.7 "Effective Date" . . . . . . 2
Section 2.8 "Employee" . . . . . . . . . . . . 2
Sectidn 2.9 "Employer" . . . . . . . . . . . 3
Section 2.10 "Employment Anniversary
Date" . . . . . . . . . . . . . . . . . . 3
Section 2.11 "Full-Time Regular Employee" 3
Section 2.12 "Highly Compensated •
Employee" . . . . . . . . . . . . . . . . . . 3
Section 2.13 "Recreation District" . . . . . . . 4 .
Section 2.14 "Retirement Board" . . . . . . . . 5
Section 2.15 "Total D:isability" . . . . . . . . 5
Section 2.16 --."Trustee" . . . . . . . . . . . . . 5
Section 2.17 "Trust Fund" . . . . . . . . . . . 5
Section 2.18 "Year" anci "Plan Year" . . . . . . 5
Section 2.19 "Year of Service" . . . . . . . . , 5
, ARTICLE III
~ PARTICIPATION OF EMPLOYEES . . . . . . 5
Section 3.1 Eligibilit:y . . . . . . . . . . . 5
Section 3.2 ParticipaYion of Non-Full-Time
Regular Employees . . . . . . . . . . . . 5
Section 3.3 Retirement Board to Determine
Participants . . . . . . . . . . . . . . . . . 6
ARTICLE IV
CONTRIBUTIONS AND LIMITAT.IONS ON ALLOCATIONS 6
Section 4.1 Contributions by the Employer
for Full-Time Regular Employees . . . . . . . 6
Section 4.2 Contributions for Non-Full-Time
. Regular Employees . . . . . . . . . . . . . . 6
Section 4.3 Voluntary Contributions by
Participants . . . . . . . . . . . . . . . . . 7
Section 4.4 Return of Employer
. Contributions . . . . . . . . . . . . . . . . 7
Section 4.5 Limitations on Allocations 8
-i-
SAW\52084\92679.2
- Section 4.6 Limitation on Benefits and
Contributions When an Employee
Participates in Both a Defined Benefit
and a Defined Contribution Plan of the
- Employer . . . . . . . . . . . . . . . . . . 9
Section 4.7 Contribution Percentage Test
for Matching and Employee Contributions 10
ARTICLE V
DETERMINATION AND VESTING OF PARTICIPANTS' INTERESTS 11
Section 5.1 Allocation of Employer
Contributions . . . . . . . . . . . . . . . 11
Section 5.2 Allocation of Earnings, Losses
and Changes in Fair. Market Value of the
Net Assets of the Trust Fund 12
Section 5.3 Participant Accounts . . . . . . 12
Section 5.4 Valuation of Accounts 13
Section 5.5 Vesting of Participants'
Interests. . . . . . . . . . . . . . . . . 13
Section 5.6 Determination of Years of
Service for Vesting Purposes . . . . . . . . . 15
Section 5.7 Leaves of Absence; Military
Service . . . . . . . . . . : . . . . . . . 15
Section 5.8 Vesting Upon Termination of
Plan or Discontinuance of Contributions
to the Plan . . . . . . . . . . . . . . . . . 16
ARTICLE VI
RETIREMENT DATE DETERMINATION OF BENEFICIARY 16
Section 6.1 Retirement Date . . . . . . . . . . 16
Section 6.2 Determination of Beneficiary 16
ARTICLE VII
DISTRIBLTI'ION FROM TRUST FUND . . . . . . . 17
Section 7.1 When Interests Become
Distributable and Effect Thereof . 17
Section 7.2 Notification of Trustee and
• Transfer of Interest to Segregated
Account . . . . . . . . . . . . . . . . . . . 17
. Section 7.3 Time of Distribution . . . . . . . . 18
Section 7.4 Required Distribution
Commencement Date . . . . . . . . . . . . . . 19
Section 7.5 Manner of Distribution . . . . . . . 19
Section 7.6 Limitation on Duration of
Payments . . . . . . . . . . . . . . . . . 20
Section 7.7 Special Rules for Distributions
After the Participant's Death . . . . . . . 20
Section 7.8 Withdrawals . . . . . . . . . . . . 21
Section 7.9 Spendthrift Provisions . . . . . . 21
Section 7.10 Insurance Contracts . . . . . . . . 22
-ii-
SAW\52084\926791
Section 7.11 Authorization of Loans to
Participants . . . . . . . . . . . . . . . . . 22
Section 7.12 Hardship Distributions . . . . . . 23
Section 7.13 Claims Procedures . . . . . . . . . 24 .
ARTICLE VIII
CONTINUANCE, TERMINATION AND AMENDMENT OF PLAN AND TRUST 25 ,
Section 8.1 Conti.nuance of Plan by .
Successor Government . . . . . . . . . . . . . 25
Section 8.2 Distribution of Trust Fund on
Termination of Plan. . . . . . . . . . . . . . 25
Section 8.3 Amendment or Termination of
Plan and Trust Agreement . . . . . . . . . . . 25
ARTICLE IX
MISCELLANEOUS . . . . . . . . . . . 26
Section 9.1 Transfers Between Qualified
Plans . . . . . . . . . . . . . . . . . . . . 26
Section 9.2 Benefits to be Provided Solely
from the Trust Fund . . . . . . . . . . . . . 27
Section 9.3 Notices from Participants to be
Filed with Retirement Board . . . . . . . . . 28
Section 9.4 Agent for Service of Process 28
Section 9.5 Text to Control . . . . . . . . . . 28
Section 9.6 Law Governing and
Severability . . . . . . . . : . . . . . . . . 28
Section 9.7 Employer':; Obligations . . . . . . . 28
Section 9.8 Plan for Exclusive Benefit of
Participants; Reversion Prohibited . . . . . . 29
-iii-
SAW152084192679.2
TOWN OF VAIL
POLICE AND FIRE EMPLOYEES' PENSION PLAN
THIS RESTATED PENSION PL,AN is adopted by the Town of Vail
(hereinafter referred to as the "Employer").
ARTICLE I
NAM& AND PURPOSE OF PLAN The Employer established a qualified money purchase pension
plan for its employees who qualify as participants and their
beneficiaries known as the Town of Vail Police and Fire Employees'
Pension Plan (hereinafter referred to as the "Plan"), for the
purpose of providing retirement benefits for its police and fire
employees. The Plan was created and is maintained for the
exclusive benefit of the Employer's eligible employees who qualify
as participants and their beneficiaries. The Plan was initially
adopted effective January 1, 1983 and has been amended from time to
time since that date. The Employer by this document restates the
Plan to incorporate all prior amendments and other changes required
by law. Unless governed by §2.7, the provisions of the Plan
restated effective January 1, 1994 shall supersede any and all
provisions of the Plan in effect prior to December 31, 1993.
Participants who terminate employment prior to January 1, 1994
shall have their benefit under the Plan determined in accordance
with the provisions of the Plan in effect on the date of
termination of employment. Any Participant who was a Participant
in.the Plan on December 31, 1993 shall continue as a Participant in
the Plan under this amended and restated Plan. The Plan is
intended to qualify under the applicable provisions of Section
401(a) of the federal Internal Revenue Code and the Trust created
in conjunction with the Plan is intended to be exempt under Section
501(a) of such Code and all provisions of this Plan shall be
construed in accordance with this intention. Since this is a
government plan, it is not intended that the Plan or Trust comply
with any-provision of the Employee Retirement Income Security Act
of 1974, as amended, except to the extent the requirements of such
Act are specifically applicable to government plans.
ARTICLE II
DEFINITIONS
When used herein, the following words shall have the following
meanings, unless the context clearly indicates otherwise:
Section 2.1 "Administrator".means the Retirement Board as
defined at Section 2.14.
SAW\52084\92679.2 .
Section 2.2 "Anniversarv Date" means the last day of the
plan year, which is currently December 31.
Section 2.3 "Beneficiarv" means the person or entity who,
pursuant to Article VI of this Plan, becomes entitled to receive a
Participant's interest upon the Participant's death.
Section 2.4 "Break in Service" means any twelve (12)
consecutive months of service ending on the Employment Anniversary
Date during which an Employee fails to earn a Year of Service for
vesting purposes.
Section 2.5 "Code" means th.e Internal Revenue Code of 1986,
as amended. References to a section of the Code shall mean the
section in effect at the date of adoption of the Plan, or the •
corresponding provision, or the provision that is equivalent in
purpose and effect, of any subsequent federal tax law.
Section 2.6 "Compensation" means the base.salary paid by
the Employer to a Participant .for services rendered to the
Employer, excluding bonus.es, overt:ime pay, severance pay, shift
differentials, longevity pay, and any other form of compensation,
insurance premiums, pensions and retirement benefits, and all
contributions by the Employer to the within Pension Plan, to any
health, accident or welfare fund or plan, to any deferred
compensation plan, to any other qualified retirement plan or
simplified employee pension plan, or any similar benefit, any
amount received as cash under a p.rofit-sharing plan cash option
provision, and any other amounts which receive special tax
benefits, provided that compensation reductions pursuant to the
Employer pick-up of employee contributions pursuant to Code Section
414(h) shall not be excluded as compensation except for the'purpose
of applying the limitations on allor.ations and benefits under Code
Section 415. Further, compensation shall not include any amounts
realized on the transfer of property rights from the Employer. The
annual compensation of any Participant taken into account under the
terms of the Plan for any Plan Year shall not exceed One Hundred
and Fifty Thousand Dollars ($150,.000), as adjusted for changes in
the cost of living as provided by law or regulation.
Section 2.7 "Effective Date!" of this Plan is January 1,
1994, provided that each change to t.his Plan which is required for
compliance with the Tax Reform Act of 1986 or subsequent
legislation or regulations shall be effective as of the required
date of such provision if before January 1, 1994.
Section 2.8 "Employee" me<ins any full-time paid sworn
police officer or firefighter now or hereafter in the employ of the
Employer. In addition, a leased ernployee who is a sworn police
officer or firefighter, within the meaning of Section 414(n)(2) of
the Code, shall be considered an employee of the Employer, provided
-2-
SAW\52084\92679.2
- that if such leased.employee constitutes less than twenty percent
(200) of the Employer's non-highly compensated work force within
the meaning of Section 414(n) of the Code, the term I ' 'Employee"
shall not include any leased employees covered by a Plan described
in Section 414(n)(5) of the Code.
. Section 2.9 "Emplover" means the Town of Vail, a town
within the State of Colorado. Any action to be taken or
determination to be made by the Employer shall be by action of the
Town Council of the Town of Vail except to the extent such
' authority is delegated by the Town Council of the Town of Vail.
Section 2.10 "Employment Anniversary Date" means the last
day of the twelve (12) month period beginning on an Employee's date
of hire and the same date in subsequent years. For this purpose, .
an Employee's date of hire is the first day in which an Employee
completes an hour of employment.
Section 2.11 "Full-Time Regular Emplovee" means an Employee
who it is anticipated will work at least 1,000 hours per year in a
position which does not have a definite duration of less than six
(6) months.
Section 2.12 "Highly ComDensated EmAlovee" means highly
compensated active employees and highly compensated former
employees determined in accordance with the following rules:
(1) Active Employees. A highly compensated active
employee includes any employee who performs service for the
Employer during the determination year and who:
(a) received compensation from the Employer during
the look-back year in excess of $75,000 (as adjusted pursuant to
Section 415(d) of the Code);
(b) received compensation from the Employer during
the look-back year in excess of $50,000 (as adjusted pursuant to
Section 415.(d) of the Code) and was a member of the top paid group
for such year (the highest 20% of the employees of the Employer in
the order of compensation);
(c) was an officer of the Employer during the look-
back year and received compensation during such year that is
greater than 50% of the dollar limitation in effect under Section
415(b)(1)(A) of the Code; and
(d) was a 50 owner at any time during the look-back
year or determination year..
The term "highly compensated employee" also includes
employees who are both described in the preceding paragraphs if the
-3-
SAW\52084\92679.2
term "determination year" is sub:;tituted for the term "look-back
, year" and the employee is one of the 100 employees who received the
most compensation from the Employer during the determination year.
, (2) HiQhest Paid Officgr.. If no officer has satisfied
the compensation requirement of (1) (c) of this Section during
either a determination year or look-back year, the highest paid
officer for such year shall be treated as a highly compensated em-
ployee.
(3) Determination Year.. For the purposes of this
Section, the determination year shall be the Plan Year. The look-
back year shall be the twelve month period immediately preceding
the determination year.
(4) Former EmDlovees. A highly compensated former
employee includes any employee wha separated from service (or was
deemed to have separated) prior to the determination year, performs
no service for the Employer during the determination year, and was
a highly compensated active employee for either the separation year
or any determination year ending on or after the employee's 55th
birthday.
(5) Family Members. If an employee is, during a
determination year or look-back year, a family member of either a
5% owner who is an active or former employee or a highly
compensated employee who is one of the 10 most highly compensated
employees ranked on the basis of compensation paid by the Employer
. during such year, then the family member and the 5% owner or top 10
highly compensated employees shall be aggregated. In such case,
the family member and 50 owner or top 10 highly compensated
employee shall be treated as a single employee receiving
compensation and Plan contributions or benefits equal to the sum of
such compensation and contributions or benefits of the family
member and 50 owner or top 10 hig:hly compensated employee. For
purposes of this Section, family member includes the spouse, lineal
ascendants or descendants of the employee or former employee and
the spouses of such lineal ascendants or descendants.
(6) Rules of Construction. The determination of who is
a Highly compensated employee, including the determinations of the
number and identity of employees in the top-paid group, the top 100
employees, the number of employees treated as officers and the
compensation that is considered, will be made in accordance with
Section 414(q) of the Code and the regulations thereunder.
Section 2.13 "Recreation District" means Vail Metropolitan
Recreation District, a special governmental district within the
State of Colorado.
-4-
SAW152084\92679.2
Section 2.14 "Retirement Board" means the Trustees
appointed pursuant to Article VII of the Trust Agreement of the
Town of Vail Police and Fire Employees' Pension Plan dated
effective January 1, 1983, and restated in its entirety the day
, - of , 1994. -
Section 2.15 "Total Disabilitv" means a disability which
permanently renders a Participant unable to perform satisfactorily
the usual duties of the Participant's employment with the Employer,
as determined by a physician selected by the Retirement Board, and
which results in the Participant's termination of service with the
Employer. A finding of disability by the federal Social Security
Administration shall be conclusive evidence of disability.
Section 2.16 "Trustee" means the Trustee or Trustees of the
Trust Fund established in conjunction with this Plan and any duly
appointed and qualified successor or additional Trustees;
additionally referred to as Retirement Board.
Section 2.17 "Trust Fund" means the assets of the Trust
established in conjunction with this Plan out of which the benefits
. of this Plan shall be paid and shall include all income of whatever
nature.earned by the Fund and all increases in fair market value.
Section 2.18 "Year" and "Plan Year" mean the fiscal year of
the Trust established pursuant to this Plan. The Plan Year begins
on January 1 and ends on December 31.
Section 2.19 "Year of Service" means a twelve (12) con-
secutive month period ending on an Employment Anniversary Date
during which the employee is a Full-Time Regular Employee
throughout such period.
ARTICLE III
PARTICIPATION OF EMPLOYEES
Section 3.1 Eliaibilitv.
Each Full-Time Regular Employee of the Employer shall become
a Participant in the Plan on the date of employment or, if later,
the date on which the Employee becomes a Full-Time Regular
Employee. .
Section 3.2 Particination of Non-Full-Time Recrular
Employees.
Any sworn police officer or firefighter who is not a Fu11-Time
Regular Employee and as a result is not eligible in accordance with
Section 3.1 sha11 be eligible to participate in the Plan on a
-S-
SAWC52084\926791 .
limited basis as provided in Section 4.2 below. Such participation
shall be effective as of such emp]_oyee's date of employment.
Section 3.3 Retirement Board to Determine Participants.
The Retirement Board shall have the duty and responsibility of
determining when an employee becomes a Participant and when a
Participant is eligible to share in the Employer's contribution.
The determination of the Retirement Board as to the identity of the
respective Participants and as to t:heir respective interests shall
be binding upon all employees, all Participants and all
beneficiaries of,the Participants.
ARTICLF IV
CONTRIBUTIONS AND LIMITATIONS ON ALLOCATIONS
Section 4.1 Contributions bv the Emplover for Full-Time
Reaular Employees.
The Employer shall contribute and pay into the Trust Fund for
each pay period to the credit of the Employer Contributions Account
of each Participant who is a Full-Time Regular Employee an amount
equal to 11.1511 of such Participant's compensation for such pay
period during the first year of employment and 16.15% of such
Participant's compensation thereafter. Notwithstanding the
foregoing, the rate of contribution of any such employee whose date
of employment with the Employer was prior to June 1, 1986 will
remain at 17.60. The Employer shall make payment of its
contribution for each pay period in one sum as soon as practical
after the end of such pay period. Such contribution shall be made
in casli. The contribution provided above for any employee shall be
reduced by the amount of taxes pai<i by the Employer on behalf of
such employee pursuant to the feder_al Social Security Act or any
amendment thereto. Such contribution reduction shall be effective
at the same time as any such payroll tax mandated by the Social
Security Act or any amendment becomes effective.
Section 4.2 Contributions for Non-Full-Time Regular
Employees.
(a) Employer Contributions. For each Plan Year, the
Employer shall contribute to the Plan to the credit of the Employer
Contribution Account of each Participant who is not a Full-Time
Regular Employee, an amount equal to 1.50 of the Participant's
eligible compensation. The contribution of the Employer for any
Plan Year shall be made no later than 2-1/2 months following the
. end of the Plan Year.
' (b) Emplovee Contributions. Each employee who is a
Participant but not a Full-Time Regular Employee shall be required
-6- .
SAW\52084\92679.? .
to contribute 6% of the Participant's compensation to the Plan for
each Plan Year.
(c) Emplover Pick=Up Contributions. The employee con-
tribution of each Participant who is not a Full-Time Regular
Employee shall be made by the Employer and deducted from the
compensation otherwise paid to the employee. Such contributions
shall be considered to be pick up contributions under the terms of
Section 414(h) of the Internal Revenue Code of 1986. Such Partici-
pants shall not have the option of whether or not such
contributions shall be treated as Employer pick-up contributions.
Section 4.3 Voluntarv Contributions bv Participants.
Each Participant may make voluntary non-deductible
contributions to the Trust Fund for each year in which he or she is
a Participant in such amounts as the Participant may elect in the
Participant's sole discretion, provided that the total of such
amounts, when combined with the Participant's nondeductible
employee contributions to any other qualified retirement plan
maintained by the Employer, subject to the limitations of
Section 4.5 below, may not exceed the following percentages of the
Participant's compensation for such year. If Employer contribution
is:
17.60, then 7.40;
16.15°s, then 8.85a;
11.150, then 13.85%.
A Participant may make a contribution for any year at any time or
times during such year or within thirty (30) days after the end of
such year, provided such contributions will be credited to the
Participant's account no.later than the last day of such year. The
amount, if any, which a Participant contributes to the Trust Fund
may vary from year to year and may be contributed in one sum or in
installments, provided, that no contribution in any amount less
than ten dollars ($10.00) may be made by the Participant at any one
time. Such contribution shall be made in cash. All contributions
shall be made to the Trustee. No Participant shall have any
obligation to make any contribution. Deductible voluntary contributions are not permitted.
Section 4_.4 Return of Emplover Contributions.
Notwithstanding the provisions of Article IX below, a
contribution made by the Employer may be returned to the Employer
if the contribution is made by reason of a mistake of fact. The
amount which may be returned to the Employer is the excess of (i)
the amount contributed over (ii) the amount that would have been
contributed had there not occurred a.mistake of fact. The return
to the Employer of the amount involved must be made within one year
-7-
SAW\520841926791 .
' of the mistaken payment of the coiitribution or disallowance of the
deduction as the case may be.
Section 4.5 Limitations on Allocations.
(a) General Rule. In no event may.a Participant receive
. an allocation for any year which, when combined with the
Participant's allocation under any other defined contribution plan
established by the Employer, exceeds the lesser of twenty-five
percent (2596) of the Participant's compensation for such year or
. Thirty Thousand Dollars ($30,000), provided such figure shall
change to conform with any adjustment for changes in the cost of
living after the enactment of the Tax Equity and Fiscal
Responsibility Act of 1982 or for any other reason,.as provided by
law or regulation. For the purpose of'applying the foregoing .
limitation, the limitation year shall be the Plan Year. If a short
limitation year is created as a result of a change in the
limitation year, the dollar iimitation for such short limitation .
year shall be the dollar limitation set forth in this subsection
multiplied by a fraction, the nume:rator of which is the number of
months in such short limitati.on year and the denominator of which
is twelve (12). .
(b) Allocations. For the purpose of applying the
limitations of this section, the allocation to the Participant
. shall include the following amounts allocated to the account of a
Participant for a limitation year: (i) Employer contributions,
(ii) forfei.tures, and (iii) non-deductible contributions made by
the Participant. For the purpose of applying limitations of this
Section, compensation from and allocations received under any
retirement plan maintained by any other employer which is a common
member with the Employer of either a controlled group of businesses
or an affiliated service group, as prescribed by law or regulation,
shall be counted.
(c) Excluded Amounts. Any amount not mentioned in
subparagraph (b) shall not be considered an allocation. The
amounts not considered as al]_ocations include ~ deductible
Participant contributions, rollover contributions and transfers
from other qualified plans allacated to. the account of a
Participant.
(d) Treatment of Excess. In the event an allocation
would otherwise exceed the limitat:ions of this section, any non-
deductible voluntary contribution by the Participant which is
counted as part of such' allocation shall be returned to such
Participant to the extent necessary to reduce such allocation to a
level in compliance with the limitations of this section. If after
such return of contributions there still remains an excess, the
excess ov.er such limitations shall be held in a suspense account
until such amount can be applied to .reduce the next contribution of
-8-
, SAW\52084\92679.2
' the Employer. If the Employer maintains more than one qualified
defined contribution plan, the excess shall be considered to have
first occurred in the plan to which the contribution of the
Employer is discretionary, and if there is no such plan, the excess
shall be treated as having occurred in all defined contribution
plans on a pro rata basis based upon the Employer contribution to
each of the plans. If this plan is terminated when there is an
amount held in such suspense account, the amount held in such
account which cannot be allocated to Participant without exceeding
the foregoing limits shall be returned to the Employer.
(e) Compensation. For the purpose of this Section and
Section 4.5, compensation shall mean compensation as defined in
Section 2.6, provided that any taxable compensation.excluded under
such.Section shall be included as compensation. ,
Section 4.6 Limitation on Benefits and Contributions When
an Em lo ee Partici ates in Both a Defined Benefit and a Defined
Contribution Plan of the-Emplover.
In any year if a Participant in this Plan is or ever has been
a Participant in a defined benefit plan maintained by the Employer,
then the sum of the defined benefit plan fraction and the defined
contribution plan fraction (both as prescribed by law) for such
Participant for such year shall not exceed 1.0. In any year if the
sum of the defined benefit plan fraction on behalf of a Participant
would exceed 1.0, then the allocation under this plan shall be
reduced to the extent necessary so that the sum of such fractions
does not exceed 1.0. For purposes of this Section, the limitation
year shall be the Plan Year. The defined benefit plan fraction for
any Participant shall be the fraction, the numerator of which is
• the projected anriual benefit of the Participant under the Plan
(determined as of the close of the year), and the denominator of
which is the lesser of (i) the product of 1.25 multiplied by the
maximum dollar limitation for benefits set forth in subsection
415(b)(1)(A) of the Internal Revenue Code for such year, or (ii)
the product of 1.4 multiplied by the percentage limitation set
forth under section 415(b)(1)(B) under the Code with respect to
such Participant for such year. The defined contribution plan
fraction shall be the fraction, the numerator of which is the sum
of the annual additions to the Participant's account as of the
close of the year for such year and all prior years, and the
denominator of which is the sum of the lesser of the following
amounts determined for such year and for each prior year of service
with the Employer: (i) the product of 1.25 multiplied by the
dollar limitation in effect under subsection 415(c)(1)(A) of the
Internal Revenue Code for such year, or (ii) the product of 1.4
multiplied by the amount. which may be taken into account under
subsection 415(c)(1)(B) of the Code with respect to such individual
under such plan for such year with respect to dollar limitations.
-9-
. SAW\52084\926791
. Section 4.7 Contribution ]?ercentaae Test for MatchinQ and
Emplovee Contributions.
(a) General. The Average Contribution Percentage in any
year of all Participants who are Highly Compensated Employees may
not exceed the greater of the following amounts:
(1) 125% of the Average Contribution Percentage for
such Year of all Participants who are not Highly Compensated
Employees; or
(2) The Average Contribution Percentage for such "
Year of all Participants who are nc>t Highly Compensated Employees,
plus two percentage points (296), limited to two times the Average
Contribution Percentage for all such Par•ticipants.
For purposes of the foregoing, the Average Contribution
Percentage is.the average of the su.m of the matching contributions
allocated to the accounts of the applicable.Participant plus such
Participant's voluntary non-deductible contributions, divided by
the total compensation of such Participant for each such
Participant. If the amount to be contributed by the Employer
and allocated to the accounts of Participants who are Highly
Compensated Employees exceeds the ioregoing limitations, then the
amount so allocated shall be i-educed, pro-rata among such
Participants, to the extent necessary to satisfy such limitation
and such excess amount, together with earnings thereon, shall be
distributed to such Participants no later than 2-1/2 months after
the end of the Plan Year in which such contributions were made.
(b) Adiustment of Contribution PercentaQe. The Employer
may in its discretion make contributions to the Plan which shall be
designated as additional matching contributions and which shall.be
allocated to the accounts of Part.icipants who are not Highly
Compensated Employees, in order to increase the Average
Contribution Percentage of such Participants.
(c) Excess AQqregate Contributions. Matching
contributions and employee contx•ibutions in excess of the
limitations of this Section are excess aggregate contributions.
(d) Disposition of Exces,s AaQregate Contributions.
(1) General. Notwithstanding any other provision
of this Plan, Excess Aggregate Cont:ributions, plus any income and
minus any loss allocable thereto, shall be forfeited, if forfeit-
able, or if not forfeit- able, distributed no later than the last
day of each Plan Year to Participants to whose accounts such Excess
Aggregate Contributions were allocated for the preceding Plan Year.
Excess Aggregate Contributions shal]_ be allocated to Participants
who are subject to the Family Member aggregation rules of Section
-10-
' SAW\52084\926791
' 41(q)(6) of the Code in the manner prescribed by the regulations.
If such Excess Aggregate Contributions are distributed more
than 2-1/2 months after the last day of the Plan Year in which such
excess amounts arose, a 1096 excise tax will be imposed on the •
- employer maintaining the Plan with respect to those amounts.
Excess Aggregate Contributions shall be treated as annual additions
under the Plan.
(2) Determination of Income or Loss: Excess
Aggregate Contributions shall be adjusted for any income or loss up
to the date of distribution. The income or loss allocable to
Excess Aggregate Contributions is the sum of: (i) income or loss
allocable to the Participant's Employee Contribution Account,
Matching Contribution Account, if applicable, Qualified Non-
Elective Contribution Account for the Plan Year multiplied by a
fraction, the numerator of which is such Participant's Excess •
Aggregate Contributions for the year and the denominator of which
is the Participant's account balance(s) attributable to Contribu-
tion Percentage Amounts without regard to any income or loss
occurring during such Plan Year; and (ii) 100 of the amount
determined under (i) multiplied by the number of whole calendar
months between the end of the Plan Year and the date of
distributiori, counting the month of distribution if distribution
occurs after the 15th of such month.
(3) Forfeitures of Excess AaQreQate Contributions.
Forfeitures of Excess Aggregate Contributions shall be applied to
reduce Employer contributions.
(4) AccountinQ for Excess AQqreQate Contributions.
Excess Aggregate Contributions,shall be forfeited; if forfeitable
or distributed on a pro-rata basis from the Participant's Employee
Contribution Account, Matching Contribution Account, and Qualified
Matching Contribution Account (and, if. applicable, the
Participant's Qualified Non-Elective Contribution Account).
ARTICLE V
DETERMINATION AND VESTING OF PARTICIPANTS' INTERESTS
Section 5.1 Allocation of Emplover Contributions.
The contribution made by the Employer to the credit of the
account of each Participant eligible to participate in the.
allocation of the Employer's contribution pursuant to the
provisions of Section 4.1 above shall be allocated to the Employer .
Contributions Account of each such Participant not less frequently
than monthly. Any allocation shall be subject to the limitations
set forth in Section 4.5 above.
-11-
SAW\52084\92679.2 ' .
Section 5.2 Allocation of Earninas, Losses and Chanaes in
Fair Market Value of the Net Assets of the Trust Fund.
(a) General Rule. Earnings and losses of the Trust Fund
and changes in the.fair market value of the net assets of the Trust
. Fund shall be allocated to the Participants as of each regular
valuation date, in the ratio which the total dollar value of'the
interest of each such participant in the Trust Fund bears to the
aggregate dollar value of all of such interests of all such
Participants as of the last previous regular valuation date. .
(b) Special Rule When There Are SeareQated Accounts.
For the purpose of the foregoing allocations, the amount of each
Participant's interest in the furad, if any, that is held in a
segregated account pending distribution pursuant to Article VII
below, and the earnings and losses resulting thereto, shall be
excluded. The segregated account of a Participant shall alone
participate in the income, gains or losses of the property so
segregated and alone be liable upon contracts made for its benefit
or liabilities arising from such .investment. Any extraordinary
expenses resulting from the investments made at the direction of
the. Participant shall be borne solely by such Participant's
segregated account.
Section 5.3 Participant Accounts.
The following accounts shall be maintained for the
Participants in the Plan:
(a) Employer Contributions Account. This account shall
show the dollar value of the Participant's current interest in the
Trust Fund resulting from all Employer contributions.
(b) Participant Contributions Account. This account
shall show the dollar value of the Participant's current interest
in the Trust Fund resuiting from all contributions made by the
Participant.
(c) FPPA Individual Accounts. FPPA means (a) the Town
of Vail Employees' Retirement Plan, or (b) the Fire and Police
Pension Association. Any Participant who was an Active Participant
under FPPA on December 31, 1982, shall have two (2) beginning
balances under this Plan comprised as follows:
(1) the ending balance in his Employer Contribution
Account under FPPA as of December 31, 1982, plus
one-half any excess amount refunded by FPPA,
allocated as described below; and
(2) the ending balance of his Mandatory Participant
Contribution Account under FPPA as of December 31,
. -12-
SAW\52084\926791
1982, plus one-half any excess amount refunded by
FPPA,.allocated as described below.
Any excess amount refunded by FPPA shall be allocated to each
Participant whow as an Active Participant on December 31, 1982, in
the FPPA in proportion to his Mandatory Participant Contribution
Account balance under FPPA as of December 31, 1982, as a percentage
of such total excess amount. One-half such amount for each such
Participant shall be allocated to the ending balance of his
Employer Contribution Account under FPPA as of December 31, 1982.
The other one-half shall be allocatd to.the ending balance of his
' Mandatory Participant Contribution Account under FPPA as of
December 31, 1982.
The amounts so transferred to the Plan at its inception shall
be maintained in individual accounts on behalf of each such
Participant.
Section 5.4 Valuation of Accounts.
(a) ReQUlar Valuation. The regular valuation dates of
the Trust Fund shall be the last day of each calendar quarter
(March 31,June 30, September 30 and December 31) at which time the
Retirement Board shall determine the value of the net assets of the
Trust Fund, i.e., the value of all of the assets of the Trust Fund
at fair market thereof, less all.liabilities, both as known to the
Trustee, and the value of contributions by the Employer for such
year. In the event that distribution is made to a Participant or
an annuity is to be purchased for the Participant's benefit, the
valuation of such Participant's account shall occur as of the end
of the quarter prior to such distribution or the purchase of an
annuity. In no event shall valuation take place prior to the end
of the quarter in which distribution is requested by the
Participant.
Section 5.5 VestinQ of Participants' Interests.
(a) Participant's Contributions. A Participant's
interest in the FPPA Individual Accounts and the contributions made
by him, if any, and the earnings, losses and changes in fair market
value thereof, shall be fully vested at all times.
(b) Contributions for Full-Time Regular Emplovees Hired
Before July 1 1986. In the case of a Participant who is a Full-
Time Regular Employee wliose date of employment with the Employer is
prior to July 1, 1986, such Participant's vested percentage in
Employer contributions made on the Participant's behalf pursuant to
Section 4.1 at any time shall be determined according to the
following schedule, based upon years of service:
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SAW\52084\926791
Years of Service Vested PercentaQe
Less than 1 0%
1 77.5%
2 85%
3 92.5%
4 or more 100%
(c) Contributions for Full-Time ReQUlar Employees Whose
Date of Emplovment is After June 30. 1986. In the case of a
Participant who is a Full-Time Regular Employee whose date of
employment with the Employer or the Recreation District is after
June 30, 1986, such Participant's vested percentage in Employer
contributions made on the Participant's behalf pursuant to Section
4.1 at any time shall be determined according to the following .
schedule, based upon the Participant's years of service:
Years of Service Vested PercentaQe
Less than 1 Oo
1 200
2 40°s
3 600
4 80<
5 or more 100%
(d) vesting for Contributions for Non-Full-Time Regular
Employees. The contribution made pursuant to Section 4.2 by or for
any Participant who is not a Full-'Cime Regular Employee, whether
the contributions are made by the I?articipant or by the Employer,
shall be fully vested and nonforfeitable for all purposes.
(e) Lay-Off. Notwithstanding the schedules of vesting
set forth in paragraphs (b) and (c) above, any employee who is laid
off by'the Employer prior to the time at which he has completed at
least one year of service, such employee shall be considered to
' have one year of service for vesting purposes at the time he
terminates employment as a result of such lay off.
(f) Death or Attainment of Normal Retirement AQe. The
vested percentage of a Participant shall be 100% in the event the
Participant dies or attains his or her normal retirement age while
still employed by the Employer.
(g) Forfeitable Interests. Any portion of the interest
of a Participant which sha11 not have become vested shall be a
forfeitable interest. A forfeiture,shall occur on the earlier of
the distribution of the vested acc.ount balance of the Employer
Contributions Account or Break in Service. All forfeitures,
including earnings thereon, shall be applied to pay the expenses of
the Plan and Trust and if any forfeitures remain after paying sucli
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SAW152084\92679.2 .
expenses, such remaining forfeitures shall be applied to reduce any
subsequent contribution of the Employer as determined by the
Retirement Board.
Section 5.6 Determination of Years of Service for Vestin
Purvoses.
In determining a Participant's years of service for vesting
purposes, all of the Participant's service with the Employer and
Recreation District shall be taken into account subject to the
following limitations:
(a) A Year of Service for vesting purposes means a
twelve (12) consecutive monthly period ending on. an Employment
Anniversary Date during which the employee is a Full-Time Regular .
Employee throughout such twelve-month period and is employed on the
Employment Anniversary Date. Notwithstanding the foregoing, any
employee who is laid off or is terminated by the Employer prior to
the time at which he has completed at least one Year of Service,
such employee shall be considered to have one Year of Service for
vesting.purposes at the time he terminates employment as a result
of such lay off or termination.
(b) If a Participant incurs a Break in Service, service
prior to such Break in Service shall be counted in determining the
Participant's vested interest in Employer contributions made after
he returns to the employ of the Employer.
(c) All service with the Recreation District shall be
counted for vesting purposes as if it were service with the
Employer.
Section 5.7 Leaves of Absence• Militarv Service.
0
A leave of absence not in excess of one year granted by the
Employer for purposes other than military service shall not be
considered as a Break in Service or a termination of employment.
The Employer may, from time to time, extend such leave of absence
for additional periods of not in excess of one year each in
accordance with the personnel rules and regulations of the
Employer. Any employee or Participant who has entered or enters the
Armed Forces of the United States shall be presumed to be on a
leave of absence, regardless of the length of such service, and
such leave of absence shall not be considered as a Break in Service
or a termination of employment, provided such leave is in
- compliance with the personnel rules and regulations of the
Employer.
-15-
SAW152084\92679.2 . .
A Participant shall not be credited with service during any
period during which he is on a l.eave of absence or in military
service, as provided above unless he receives or is entitled to
receive compensation from the Employer for such period.
Section 5.8 Vestina Lipon Termination of Plan or
Discontinuance of Contributions ta the Plan.
Upon the termination, or partial termination, of the Plan or
the complete discontinuance of contributions under the Plan to the
Trust, the interests of all affected employees shall become fully
and completely vested and non-forfeitable for all purpqses.
ARTICLF. VI
RETIREMENT DATE DETERMINATION OF BENEFICIARY
Section 6.1 Retirement Date.
The normal retirement age for each Participant shall be sixty
(60) years. An employee may elec:t to retire voluntarily after
attaining the age of fifty (50) yeai-s, provided the Participant has
comple.ted four (4) Years of Service (as determined pursuant to
Section 2.16) prior to such retirement. A Participant shall be
entitled to retire voluntarily on ox•after the Participant's normal
retirement date. Until actual retirement, a Participant shall
continue to participate in the Plari.
Section 6.2 Determination of Beneficiarv.
(a) Designation of Beneficiaries. A Participant shall
have the right to designate a beneficiary or beneficiaries and one
or- more contingent beneficiaries to receive the Participant's
interest in the Trust Fund upon his death, such designation to be
made on the form prescribed• by and delivered to the Retirement
Board. The Participant shall have the right to change or revoke.
any such designation from time to ti.me by filing a new designation
or notice of revocation with the Ret.irement Board, and no notice to
any beneficiary nor consent by any beneficiary shall be required to
effect any such change or revocatio:n.
(b) Determination of Beneficiarv When There is no
Desianated Beneficiarv. If a Participant shall fail to designate
a beneficiary before the Participant's death, or if all designated
beneficiaries or contingent beneficiaries should die, cease to
exist or disclaim their interests prior to distribution, the
Retirement Board shall pay the Participant's interest in the Trust
Fund to the Participant's surviving• spouse, if any, or if none,
then to the personal representative of the Participant's estate.
If, however, no personal representative shall have been appointed,
and the actual notice thereof given r_o the Retirement Board within
one hundred twenty (120) days after the Participant's death, the
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SAWAT2084\926792 .
' Retirement Board may pay the Participant's interest to such person
or persons as may be entitled thereto under the laws of the state
where such Participant resides at the date of the Participant's
death, and in such case, the Retirement Board may require such
proof of right or indemnity from such person or persons as the
Retirement Board may deem necessary.
(c) Insurance Policies. The beneficiary of any
insurance contract on a Participant's life shall be determined and
designated as provided in the Trust Agreement established in
conjunction with this Plan.
ARTICLE VII
DISTRIBUTION FROM TRUST FUND
Section 7.1 When Interests Become Distributable and'Effect
Thereof. •
When a Participant dies, suffers total disability, retires or
terminates his or her employment for any other reason, the
Participant's vested interest in the Trust Fund shall thereupon
become distributable as hereinafter provided in this Article.
Distribution shall not be permitted prior to the occurrence of one
of the foregoing events other than to comply with the distribution
commencement date requirements of Section 7.4.
Section 7.2 Notification of Trustee and Transfer of
Interest to SeareQated Account.
(a) Notification bf Trustee. As soon as possible after
a Participant's vested interest shall have become distributable,
the Retirement Board will determine the Participant's address, the
amount of the Participant's vested interest which has become
distributable, the reason for its having become distributable and
the manner of distribution in accordance with the Plan.
(b) Transfer to Segreaated Account. The Retirement
Board may transfer a Participant's distributable interest from the
general Trust Fund into a segregated account within the Trust Fund
to the credit of such Participant. If such interest is not
transferred, the Retirement Board shall make such distribution, in
cash or in kind, directly from the general Trust Fund.
(c) Seqrecrated Account for Particioants Who Attain the
Aae of Fifty (50). When a Participant who has a one hundred
percent (100%) vested interest in his or her Employer Contribution
Account attains the age of fifty (50), he shall have the option to
direct the Retirement Board to establish a segregated account
within the Trust Fund to which will be allocated the entire balance
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SAW\.52084\92679.2
to the Participant's credit att:ributable to both employee and
Employer contributions. Such option shall be exercised by a
written election filed with the Rer_irement Board at least three (3)
months in advance of the date on which the segregation will take
place. Once such an election has been filed, it shall be
irrevocable and all future contributions to the Plan shall be made
to such segregated account. The zis.sets of the segregated account
attributable to the employee and the Employer contributions will.be
invested as provided in subparagraph (d) below.
(d) Investment of SearESaated Account. Any segregated
account maintained for a Participant's interest shall be invested
by the Retirement Board in any one or more of the investments
authorized in the Trust Agreement. Notwithstanding any other
provisions of this Plan, the segregated account of a Participant
shall alone participate in the income, gains or losses of the
. property so segregated and alone shall be liable upon contracts
made for its benefit or liabilities arising from the investment of
such account. Any expenses resulting from the investments made for
the benefit of such account shall be borne solely by such
Participant's account, unless otherwise determined by the
Retirement Board. Anticipated earnings or interest on any such
investments shall be taken into account in determining the amount
of the equal installments to be F>aid to the Participant or the.
Participant's beneficiary.
Section 7.3 Time of Distribution.
(a) Distribution Upon R,=tirement or Disabilitv. If a
Participant.retires on or after the Participant's normal retirement
age or becomes totally disabled, his interest shall be distribu-
table commericing no later than the earlier of sixty (60) days after
the close of the Plan Year in which the Participant's.termination
of employment occurs, or the required distribution commencement
date set forth in Section 7.4, subjE_ct to the consent requirements
nf subsection (e) of this Section.
(b) Distribution Upon Death. If a Participant dies, the
Participant's interest shall be distributable commencing no later
than sixty (60) days after, the close of the Plan Year in which the
Participant's death occurs.
(c) Distribution Uoon Other Termination of Employment. '
If a.Participant terminates his or her employment for any reason
other than retirement after atta.ining normal retirement age,
disability or death, the Participant's interest shall be
distributable commencing no later than sixty.(60) days after the
Participant incurs a Break in Service, or, if later, within sixty
(60) days after the regular valuat:ion as of the end of the Plan
Year is completed, subject to the consent requirements of
subsection (e) of this Section.
. -18-
- SAW152084\926791
' (d) Distribution of Participant's Interest in Emplover's
Contribution for Year of Termination. The vested interest of the
Participant in the Employer's contribution for the year of
termination shall be distributed to the Participant or his or her
beneficiary as soon as practicable after the end of such year by
the allocation of such interest to the Participant's account.
(e) Participant Consent and Deferral Election. No
distribution under this Plan may be made to a Participant whose
vested interest exceeds Three Thousand, Five Hundred Dollars
($3;500) prior to the later of the Participant's normal retirement
age, or the Participant's sixty-second (62nd) birthday without the
Participant's written consent. A Participant may elect, with the
consent of the Retirement Board, to have the commencement of the
Participant's benefit deferred until a date later than the date
specified in subsection (a), (b) or (c) of this Section 7.3, but
in no event shall the commencement of distribution be later than
the required distribution commencement date specified in Section
7.4. Any election under this subsection shall be made by
submitting to the.Retirement Board a written request, signed by the
Participant which describes the benefit and the date on which the
payment of such benefit shall commence.
(f) Distribution of a Particilpant's Contributions. Any
other provision of this Section 7.3 to the contrary
notwithstanding, a Participant, in the event of the termination of
his or her employment for any reason, shall be entitled to receive
payment in one lump sum of his or her interest in the Trust Fund
represented by the contributions actually made by him, provided he
makes written demand therefor upon the Retirement Board. The
earnings, gains and increases in fair market value of the
Participant's voluntary contributions account shall be distributed
at the same time and in the same manner as the Participant's
interest attributable to Employer contributions.
Section 7.4 Reauired Distribution Commencement Date.
Distribution of a Participant's interest must begin no later
than April 1 of the calendar year following the calendar year in
' which takes place the later of the date the Participant attains the
age of seventy and one-half (70-1/2) or the date the Participant
retires.
Section 7.5 Manner of Uistribution.
When a Participant's interest shall become distributable, the
Participant shall elect the form and timing of the distribution.
The Participant shall determine the form of distribution by filing
a written election with the Retirement Board. Distribution may be
made in one or more of the following methods:
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SAW\52084\92679.2
(1) Lump Sum Distribution. The Participant's interest may be paid to the Participant or his or her beneficiary by the
distribution of the total vested. balance of the Participant's
account in one lump sum.
(2) Installments. The Participant's interest may be
paid to the Participant or his or her beneficiary in substantially
equal periodic installments (not more frequently than monthly).
Such installments shall not extend over a period exceeding the
Participant's or beneficiary's life expectancy.
(3) Annuities. The ]?articipant's interest may be
distributed in the form of a straight-life annuity, an annuity with
a term certain of f.ive (5), ten (10) or fifteen (151 years, or an
annuity with a one-half (1/2) or two-thirds (2/3rds) survivor .
annuity, provided any such annuity contract shall be non-
transferable with respect to such Participant.
Section 7.6 Limitation on Duration of Pavments.
Whenever an amount becomes distributable to a Participant,
such amount shall be distributed over a period not exceeding the
longer of (i). the longer of the life or the life expectancy of the
Participant, or (ii) the longer of the joint lives or the joint
life expectancies of the Participant and an individual designated
as a beneficiary by the Participant. To the extent distribution is
made after the Participant attains the age of seventy and one-half
(70-1/2), if not paid in a lump sum, the distribution must be made
in substantially equal periodic installments at least annually over
the period prescribed in this subsection subject to acceleration of
payment at the election of the Participant or beneficiary. The
pre_sent value of the benefits payable soleiy to the Participant
under any elected method must exceecl fifty percent (500) of the
total benefits payable to the Part:icipant and his or her benefi-
ciaries, unless distribution is iri the form of a qualified joint
and survivor annuity.
Section 7.7 Special Rules for Distributions After the
Participant's Death.
(a) Distributions CommencinQ Prior to Death. If
distribution of a Participant's interest had commenced prior to the
Participant's death in accordance with Section 7.6, the remaining
interest of the Participant shall be distributed at least as
rapidly as under the method of di:>tribution being used as of the
date of the Participant's death.
(b) Distributions Commencincr After Death. If distri-
bution of a Participant's interest. did not commence prior to the
Participant's death, the entire interest of the Participant shall
be distributed within five (5) years after the death of the
• -20-
SAW2084\926791 '
' Participant, provided that a distribution commencing within one
(1) year after the'Participant's death to or for the benefit of a
designated beneficiary over the longer of the life or the life
expectancy of the designated beneficiary will be treated as having
been distributed within such five (5) year period. If the
surviving spouse of the Participant is the designated beneficiary,
distribution is not required to commence until the date on which
the Participant would have attained the age of seventy and one-half
(70-1/2) and if distribution had not commenced as of the date of
death of such surviving spouse, the provisions of this paragraph
shall be applied as if such spouse were the Participant.
(c) Beneficiaries. If a Participant should die after
receiving some part, but not all, of his or her account, the
remaining balance thereof shall be distributed to his or her
beneficiary in manner determined pursuant to this Section 7.7. If
the beneficiary of the Partic:ipant should die cease to exist or
disclaim his or her interest prior to the completion of distribu-
tion of the Participant's interest, the remaining distribution
shall be made to the contingent beneficiary designated by the
Participant, if any. If any contingent beneficiary should die,
cease to exist or disclaim his or her interest, distribution of the
remainder of the Participant's interest shall be made to the next
contingent beneficiary. In the event there is not a beneficiary or
contingent beneficiary designated by the Participant to receive
distribution of the Participant's interest, the Participant's
interest shall be distributed in a manner determined pursuant to
this Section 7.7 to the recipient determined pursuant to Article VI
above.
Section 7.8 Withdrawals.
(a) Emplover Contributions. A Participant may not at
any time withdraw any part of his or her interest in the Employer
contributions and the earnings, losses and changes in the fair
market value thereof.
(b) Particioant's Voluntarv Contributions. A
Participant may request the withdrawal from his or her voluntary '
contributions account of any amount in such account, including
earnings and funds in such account. A Participant desiring such a
withdrawal shall file a written request with the Retirement Board
stating the amount to be withdrawn. The Retirement Board shall
then distribute the amount requested to the Participant. The right
to withdraw suah contributions shall be available to all
Participants in a non-discriminatory manner.-
Section 7_4 Spendthrift Provisions.
Except as otherwise provi<ied hereunder, all amounts payable
hereunder by the Retirement Board shall be paid only to the person
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' SAVA52084\92679.2
or persons entitled thereto, and all such payments shall be paid directly into the hands of such pe:rson or persons and not into the
hands of any other person or cozporation whatsoever except for
transfers to other qualified r(atirement plans or individual
retirement accounts at the written direction of a Participant, and
' such payments shall not be liabl.e for the debts, contracts or
engagements of any such person or persons, or taken in execution by
attachment or garnishment or by any other legal or equitable
proceedings; nor shall any such person or persons have any right to
alienate, anticipate, commute, pledge, encumber or assign any such
payments or the benefits, proceeds or avails thereof; provided that
nothing herein shall affect, restrict or abridge any right of
setoff, lien or security interest which the Trust may have in the
Participant's interest as a result of its use as security for a
Participant loan to such Participant.
Section 7.10 Insurance Contracts.
If there has been an investment in a life insurance contract
for the benefit of any Participant whose interest becomes
distributable for any reason other than death, such Participant
may, subject to any limitation set: forth elsewhere in this Plan,
obtain an absolute assignment of any such life insurance contract
by informing the Retirement Board of the Participant's election.
If the interest of a Participant electing such an assignment is not
one hundred percent (100%) vest:ed, the Participant's vested
interest shall first be satisfied out of the values of any such
contracts, and if his or her total vested interest is less than the
total values of such contracts, such Participant may obtain such
assignment only by paying to the Retirement Board an amount equal
to the difference in the values of= such contracts and his or her
vested interest. If such election is not exercised within thirty
(30) days after the termination of E=_mployment, the Retirement Board
shall cause such contract to be surrendered and shall add the
proceeds of such surrender to the interest of the Participant.
Section 7.11 Authorization_of Loans to ParticiAants.
(a) Availability of Loans. The Employer may permit
Participant loans. Any such loan shall be made at the request of
the Participant or beneficiary and shall be subject to the re-
quirements set forth in this Section. To the extent loans are made
available, such loans shall be available to all Participants or
beneficiaries on a reasonably equ.ivalent and non-discriminatory
basis. The Retirement Board may maintain a Participant Loan
PoTicy, which may impose additional limitations, restrictions and
requirements which the Retirement Board determines a.re necessary or
appropriate provided such loans remain available on an equal, non-
discriminatory basis to all Participants.
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SAW\52084\92679.2
" (b) Limitation on Amount' of Loans. Any loan, when
combined with the principal balance due on all other loans made to
the Participant by any qualified retirement plan maintained by the
Employer, shall not exceed the lesser of Fifty Thousand Dollars
($50,000), reduced by the highest outstanding balance of such loans
to the Participant during the one year period ending on the day
before the date a loan is made, or fifty percent (5026) of such
Participant's vested interest.
(c) Repavment of Loans. Any loan must be repaid in
, substantially level amortized installments of principal and
interest, payable at least quarterly over the term of the loan. Any
loan shall be repaid within five (5) years unless such loan is for
the purpose of the acquisition of a principal residence for the
Participant. Such a loan for a residence must be repaid over a
reasonable period of time.
(d) Interest Rate. Participant loans shall bear a
reasonable rate of interest, as determined under the Participant
Loan Policy.
(e) Securitv. All Participant loans shall be adequately
secured. Fifty percent (50%) of the vested interest of the
Participant in the Trust Fund shall be security for the repayment
of such loan and the Retirement Board may require security in
addition to the Participant°s vested interest if it deems it
necessary or if the Participant fails to consent to the use of his
or her vested interest as security.
(f) Default. Notwithstanding any other provision of
this Section, if a Participant loan made pursuant to this Section
is in default, the Retirement Board may not foreclose upon the Par-
ticipant's vested interest prior to termination of employment to
, satisfy such loan. Until a loan in default is satisfied, it shall
continue to bear interest at the rate provided in the note plus
additional interest of two pe:rcent (2%) per annum.
Section 7.12 Hardshi~) Distributions.
(a) Procedure. In the event of an. unforeseeable
emergency, a Participant may request a withdrawal for Hardship by
submitting a written request to the Retirement Board, accompanied
by evidence that his or her financial condition warrants an advance
release of funds and results from an unforeseeable emergency which
is beyond the Participant's control. The Retirement Board shall
review the request and determine whether payment of any such amount
is justified. If payment is justified, the amount shall be limited
to an amount reasonably needed to meet the emergency, The
Retirement Board shall determine the amount and form of payment
with payment to be made as soon as possible following approval.
-23-
SAW152084192679.2
(b) Hardship Defined. "Hardship" means a severe
financial setback of the Participant resulting from a sudden and
unexpected illness or accident of the Participant or a dependent of
the Participant, loss of the Participant's property due to
casualty, or other similar ext:raordinary and unforeseeable
circumstances, arising from events beyond the Participant's
control. Whether circumstances constitute an unforeseeable
emergency depends on the facts of each case, but, in any cas.e,
payment may not be made to the extent that such hardship is or may
be relieved:
(1) through reimbu.rsement or compensation by
insurance or otherwise;
(2) by liquidation of the Participant's assets, to
the extent that liquidation itself would not cause severe financial
hardship; or
(3) by cessation of Voluntary Employee
Contributions under the Plan.
In the event hardship distributions are made available,
such distributions shall be available to all Participants on a non-
discriminatory basis.
Section 7.13 Claims Procedures.
Upon a Participant`s termination of service with the Employer
for any reason, the Participant or the Participant's beneficiary
will be advised by the Retirement 13oard of his or her rights to
benefits under the Plan. If at an,~ time the Participant or the
Participant's beneficiary feels that he or she is entitled to
benefits, he or she may make a cla.im for benefits by writing a
letter to the Retirement Board requesting the benefits and stating
why he or she feels he or she is ent:itled to them.
If the claim for benefits under the Plan of any Participant or
beneficiary has been denied, the Rntirement Board shall provide
adequate notice, in writing, to sur_h Participant or beneficiary
within ninety (90) days after the cl.aim is filed. Such notice
shall set forth the specific reasons for such denial, specific
reference to pertinent Plan provisions on which the denial is
based, a description of any additional material or information
necessary for the claimant to perfect his or her claims, if any,
and an explanation of why such material or information is neces-
sary, and appropriate information as to the steps to be taken if
the Participant or beneficiary wishes to submit his or her claim
for review. If a notice o£ the denial of a claim is not furnished
within ninety (90) days, the claim shall be deemed to be denied and
the claimant shall be permitted to submit his or her claim for
review at that time. Each claim submitted for review shall be
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SAW152084\92679.2 .
~ entitled to a full and fair review by the Retirement Board (or by
a person designated by the Retirement Board) of all the facts and
circumstances and the preliminary decision denying such claim. The
Participant or beneficiary may request such a review upon written
application, he or she may review pertinent documents and he or she
may submit issues and comments in writing. Any such review must be
requested within seventy-five (75) days of the original claim
denial, and a decision on such claim shall be made not later than
sixty (60) days after the Plan's receipt of such request. The
decision on review shall be in writing and shall include the
specific reasons for the decision, written in a manner calculated
to be understood by the claimant as well as specific references to
the pertinent Plan p.rovisions on which the decision is based.
ARTICLE VIII
CONTINUANCE. TERMINATION AND AMENDMENT OF PLAN AND TRUST
Section 8.1 Continuance of Plan by Successor Government.
A successor government may continue this Plan by proper action
of its legislative body by executing a proper supplemental
agreement to this Plan and by executing a proper supplemental
agreement to the Trust Agreement established in conjunction with
this Plan with the Trustee. All Participants in this Plan shall
have those rights and obligations they had under the previous
government.
Section 8.2 Distribution of Trust Fund on Termination of
Plan.
If the Plan shall, at any time, be terminated by the terms of
this Article, the value of the interest of each respective
Participant or beneficiary in the Trust Fund shall be vested in its
entirety and non-forfeitable as of the date of the termination of
the Plan. Upon the termination of the Plan, the Employer in its
discretion may either terminate the Trust or continue the Trust in
existence. If the Trust is then terminated, the assets of the
Trust Fund shall be immediately distributed to the Participants or
their beneficiaries in cash or in kind. If the Trust is continued,
the assets shall be distributed~ to the Participants or their
beneficiaries in accordance with the provisions of Article VII
above.
Section 8.3 Amendment or Termination of Plan and Trust
Acrreement.
(a) In General. The Employer may at any time and from
time to time amend this Plan and the Trust Agreement established
pursuant to this Plan, or terminate this Plan and the Trust
Agreement established pursuant to this Plan provided that pursuant
to the requirements of CRS § 31-30-621, any amendment or act of
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SAW152084\92679.2 .
termination of the Plan or Trust mu;>t be approved by a vote of at ~
least sixty-.five percent (651) of the: total votes cast by all sworn
police officers and firefighters actively employed by the Employer
' and all former Employees who are entitled to a benefit from the
Plan. In addition, no amendment may be made at any time which
diverts the Trust Fund to purposes other than for rhe exclusive
. benefit of the Participants and their beneficiaries, and provided
further that no amendment shall disc:riminate in favor of Employees
who are partners, officers or Highly Compensated Employees. Al1
amendments shall be in writing.
(b) Legal Reauirements. Notwithstanding anything herein
to the contrary, however, the Plan and Trust Agreement may be
amended at any time and from time to time, if necessary, to conform
' to the provisions and requirements o:E the federal Internal Revenue
Code or any amendments thereto, or regulations or rulings issued
pursuant thereto, and the provisions and requirements of the
Employee Retirement Income Security Act of 1974, as amended, and no
such amendment shall be considered prejudicial to the interest of
any Participant or beneficiary hereunder.
(c) VestinQ Schedule. No amendment shall decrease the
percentage of the interest of any Participant which shall
theretofore have become vested.
ARTICLE :tX
MISCELLANEOUS
Section 9.1 Transfers Between Oualified Plans.
(1) In General. The Retirement Board is authorized to.
receive and add to the interest: of any Participant, the
Participant's vested interest in the assets held under any other
qualified employee retirement plan or individual retirement account
if such transfer satisfies the requirements under law for transfers
between qualified plans or rollover contributions. In such event
the assets so received shall be fully vested and shall be held in
a separate account and shall be administered and distributed
pursuant to the provisions of thi:s Plan and Trust concerning
Employer contributions. The Retirement Board is also authorized at
the request of the Participant to transfer such Participant's
vested interest which has become distributable under Article VII
hereof, directly to another qualified plan or an Individual
Retirement Account for the benefit of such Participant, provided
such transfer satisfies the requi:rements under law for such
transfers.
(2) For Distributions Made on or after Januarv 1, 1993.
Notwithstanding any provision of the plan to the contrary that
would otherwise limit a distributee's: election under this Section,
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SAW\52084\92679.2
r
• a distributee.may elect, at the time and in the manner prescribed
by the Retixement Board, to have any portion of an eligible
rollover distribution paid directly to an eligible retirement plan
specified by the distributee in a direct rollover.
(3) Definitions.
(a) EliQible Rollover Distribution. An eligible
rollover distribution is any distribution of all or any portion of
the balance to the credit of the distributee, except that an
.eligible rollover distribution does not include: any distribution
that is one of a series of substantially equal period payments (not
less frequently than annua.lly) 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; any
distribution to the extent such distribution is required under
section 401(a) (9) of the Code; and 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).
(b) Eliaible Retirement Plan. An eligible retire-
ment plan is an individual re'tirement account described in section
408(a) of the Code, an individual retirement annuity described in
section 408(b) of the Code, an annuity plan described in.section
403(a) of the Code, or a qualified trust described in section
401(a) of the Code, that accepts the distributee's eligible
rollover distribution. However, in the case of an eligible roll-
over distribution to the surviving spouse, an eligible retirement
plan is an individual retirement account or individual retirement
annuity. (c) Distributee. 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 arder, as defined in section 414(p) of
the Code, are distributees with regard to the interest of the
spouse or former spouse.
(d) Direct Rollover. A direct rollover is a pay-
ment by the plan to the eligible retirement plan specified by the
distributee.
Section 9.2 Benefits to be Provided Solely from the Trust
Fund. .
Al1 benefits payable under this Plan shall be paid or provided
for solely from the Trust Fund, and the Employer assumes no
liability or responsibility therefor.
-27-
. SAW\52084\92679.2
,
Section 9.3 Notices from I?articipants to be Filed with
Retirement Board.
Whenever provision is made herein that a Participant may
exercise any option or election or designate any beneficiary, the
action of each Participant shall be evidenced by a written notice
thereof signed by the Participant o;n a form, if any, furnished by
the Retirement Board for.such purposi=_ and filed with the Retirement
Board, which shall not be effective until received by the
Retirement Board.
Section 9.4 --.Agent for Service of Process.
The agent for service of process for the Plan shall be the
Retirement Board unless a different agent shall be designated by
the Employer. The agent and the ageiit's address shall be set f,orth
in the Summary Plan Description dist=ributed to the Participants.
Section 9.5 Text to Control..
The headings of Articles and Sections are included solely for
convenience of reference. If there shall be any conflict between
such headings and the text of this I?lan, the text shall control.
Section 9.6 Law GoverninQ and Severabilitv.
This Plan shall be construed, regulated and administered under
the laws of the State of Colorado. All contributions received by
the Trustee hereunder shall be deemeci to have been received in that
state. In the event any provision of this Plan shall be held
illegal or invalid for any reason, said illegality or invalidity
shall not affect the remaining provisions hereof. On the contrary,
such remaining provisions shall be fully severable and this Plan
shall be construed and enforced as if said illegal or invalid
provisions had never been inserted herein.
Section 9.7 Emnloyer's Oblicrations.
The adoption and continuance of the Plan shall not be deemed
to constitute a contract between the, Employer and any employee or
Participant, nor to be a considerat.ion for, or an inducement or
condition of, the employment of any person. Nothing herein
contained shall be deemed to give any employee or Participant the
right to be retained in the employ o:c the Employer or to interfere
with the right of the Employer to discharge any employee or
. Participant at any time, nor shall it be deemed to give the
Employer the.right to require the employee or Participant to remain
in its employ nor shall it interfere with the right of any employee
or Participant to terminate his or h.er employment at any time.
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SAW\52084\42679.2
r
` The Employer shall not incur any liability whatsoever to the
Trust Fund,.or any Participants or their beneficiaries, or the
Trustee, or any other person for anything done or omitted by the
Trustee or for the loss or depreciation, in whole or in part, of
the Trust Fund.
Section 9.8 Plan for Exclusive Benefit of Participants•
Reversion Prohibited.
This Plan has been ente:red into for the exclusive benefit of
the Participants and their beneficiaries. Under rio circumstances
shall any funds contributed to or held by the Trustee hereunder at
. any time revert to or be used by or enjoyed by the Employer nor
shall any such funds or assets at any time be used other than for
the exclusive benefit of the Participants or their beneficiaries,
subject to the provisions conr_erning the return of certain Employer
contributions.
IN WZTNESS WHEREOF, this restated Plan has been adopted
day of , 19
TOWN OF VAIL POLICE AND FIRE
EMPLOYEES' PENSION PLAN
By:
EMPLOYER
-29-
SAW152084\92679.2
ORDINANCE NO. 28
Series of 1994
AN ORDINANCE ADOPTING A NEW
TOWN OF VAIL EMPLOYEES' PENSION PLAN;
AND SETTING FORTH DETAILS IN REGARD THERETO.
wHEREAS, the Town of Vail has adopted a Town of Vail
Employees' Pension Pl.an, the effective date of which was January 1,
1983 and has adopted a first, second, third, fourth, and fifth,
amendment to said plan, the effective dates of which were January
' 1, 1983, January 1, 1983, July 1, 1986, January 1, 1988, and
January 1, 1989, respectively; and
WHEREAS, the Town Council wishes to adopt a new Town of Vail
Employees' Pension Plan, as attached hereto and incorporated by
reference.
NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN
OF VAIL, COLORADO:
1. The Town of Vail Employees' Pension Plan which is
attached hereto and incorporated herein by reference is hereby approved by the Town Council.
2. If any part, section, subsection, sentence, clause or
phrase of this Ordinance is for any reason held to be invalid, such
decision shall not affect the validity of the remaining portions of
this Ordinance; and the Town Conncil hereby declares it would have
passed this Ordinance, and each part, section, subsection,
sentence, clause or phrase thereof, reqardless of the fact that any
one or more parts, sections, subsections, sentences, clauses or
phrases be declared invalid.
3. The Town Council hereby finds, determines and declares
that this Ordinance is necessary and proper for the health, safety
and welfare of the Town of Vail and the inhabitants thereof. 4.. The repeal or the repeal and reenactment of any•provision
of the Municipal Code of the Town of Vail as provided in this
Ordinance shall not affect any right which has accrued, any duty
imposed, any violation that occurred prior to the effective date
hereof, any prosecution commenced, nor any other action or
proceedings as commenced under or by virtue of the provision
repealed or repealed and reenacted. The repeal of any provision
hereby shall not revive any provision or any ordinance previously
repealed or superseded unless expressly stated herein.
5. All bylaws, orders, resolutions, and ordinances, or parts
thereof, inconsistent herewith are repealed to the extent only of
such inconsistency. This repealer shall not be construed to revise
any bylaw, order, resolution, or ordinance, or part thereof,
heretofore repealed.
INTRODUCED, READ AND APPROVED ON FIRST READING this day
of , 1994, and a public hearing shall be held on this
Ordinance on.the day of , 1994 at 7:30 P.M. in the
of , 1994, and a public hearinq shall be held on this
Ordinance on the day of , 1994 at 7:30 P.M. in the
Council Chambers of the Vail Municipal Building, Vail, Colorado.
Ordered published in full this diiy of ,
1994.
Marqaret A. Osterfoss, Mayor
ATTEST:
Holly L. McCutcheon, Towri Clerk INTRODUCED, READ AND APPROVED ON SECOND READING AND ORDERED
PUBLISHED this day of
, 1994. Margaret A. Osterfoss, Mayor
ATTEST:
Holly L. McCutcheon, Town Clerk
TOWN OF VAIL
EMPLOYEES' PENSION PLAN
SAW152084190485.4
TABLE OF CONTENTS
Paae
ARTICLE I
NAME AND PURPOSE OF PLAN . . . . . . . . 1
ARTICLE II
DEFINITIONS . . . . . . . . . . . 1
Section..2.1 "Administrator" . . . . . . . . . . 1
Section 2.2 "Anniversary Date" . . . . . . . . . 2
. Section 2.3 "Beneficiary" . „ . . . . , , , 2
Section 2.4 "Break in Service" . . . . . . . . . 2.
Section 2.5 "Code" . . . . . . . . . . . . . . 2
Section 2.6 "Compensation" . . . . . . . . . . . 2
Section 2.7 "Effective Date" . . . . . . . . . . 2
Section 2.8 "Employee" . . . . . . . . . . . . . 2
Section 2.9 "Employer" . . . . . . . . . . . . . 3
Section. 2.10 "Employment Anniversary
Date" . . . . . . . . . . . . . . . . . . 3
Section 2.11 "Full-Time Regula;r Employee" 3
Section 2.12 "Highly Compensated
Employee" . . . . . . . . . . . . . . . 3
Section 2.13 "Recreation Distr-ict" . . . . . . . 4
Section 2.14 "Retirement Board." . . . . . . . . 5
Section 2.15 "Total Disability" . . . . . . . 5
Section 2.16 "Trustee" . . . . . . . . . . . . . 5
Section 2.17 "Trust Fund" . . . . . . . . . . 5
Section 2.18 "Year" and "Plan Year" . . . . . . 5
Section 2.19 "Year of Service" . . . . . . . . . 5
ARTICLE III
PARTICIPATION OF EMPLOYFES . . . . . 5
Section 3.1 Eligibility . . . . . . . . . . . . 5
Section 3.2 --.Participation of Non-Full-Time
Regular Employees . . . . . . . . . . . . , 5 .
Section 3.3 Retirement Board to Determine
Participants . . . . . . . . . . . . . ' , . . . 6
ARTICLE IV
CONTRIBUTIONS AND LIMITATIONS ON ALLOCATIONS a.. 6
Section 4.1 Contributions by the Employer
for Full-Time Regular Employees . 6
Section 4.2 Contributions for Non-Full-Time
Regular Employees . . . . . . . . . . . . ~ 6
Section 4.3 Voluntary Contributions by
Participants . . . . . . . . . . . . . . . . 7
Section 4.4 Return of: Employer
Contributions . . . . . . . . . . . . . . . . 7
Section 4.5 Limitations on Allocations 8
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SAW152084\90485.4
a
Section 4.6 Limitation on Benefits and
Contributions When an Employee
Participates in Both a Defined Benefit
and a Defined Contribution Plan of the
Employer . . . . . . . . . . . . . . . . . . . 9
Section 4.7 Contribution Percentage Test
for Matching and Employee Contributions 10
ARTICLE V
DETERMINATION AND VESTING OF PARTICIPANTS' IIVTERESTS . 11
Section 5.1 Allocation of Employer
. Contributions . . . . . . . . . . . . . . . . 11
Section 5.2 Allocation of Earnings, Losses
and Changes in Fair Market Value of the
Net Assets of the Trust Fund . . . . . . . . . 12
Section 5.3 Participant Accounts . . . . . . . . 12
Section 5.4 Valuation of Accounts . . . . . . . 12
Section 5.5 Vesting of Participants' •
Interests . . . . . . . . . . . . . . . . . 13
Section 5.6 Determination of Years of
Service for Vesting Purposes . . . . . . . . . 14
Section 5.7 Leaves of Absence; Military
Service . . . . . . . . . . . . . . . . . . . 15
Section 5.8 Vesting Upon Termination of
Plan or Discontinuance of Contributions
to the Plan . . . . . . . . . . . . . . . . . 15
ARTICLE VI
RETIREMENT DATE DETERMINATION OF BENEFICIARY 15
Section 6.1 Retirement Date . . . . . . . 15
Section 6.2 Determination of Beneficiary 15
ARTICLE VII
DISTRIBUTION FROM TRUST FUND . . . . . . . 16
Section 7.1 When Interests Become
Distributable and Effect Thereof . . . . . . . 16 •
Section 7.2 Notification of Trustee and
Transfer of Interest to Segregated
Account . . . . . . . . . . . . . . . . . 17
Section 7.3 Time of Distribution . . . . . . . . 17
Section 7.4 Required Distribution
Commencement Date . . . . . . . . . . 19
Section 7.5 Manner of Distribution 19
Section 7.6 Limitation on Duration of
Payments . . . . . . . . . . . . . . . . . 19
Section 7.7 Special Rules for Distributions
After the Participant's Death . . . . . . . . 20
Section 7.8 Withdrawals . . . . . . . . . . 21
Section 7.9 Spendthrift Provisions . . . . . . 21
Section 7.10 Insurance Contracts . . . . . . . . 21
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SAW152084\90485.4
~
Section 7.11 Authorization of Loans to
Participants . . . . . . . . . . . . . : . . . 22
Section 7.12 Hardship Distributions . . . . . . 23
, Section 7.13 Claims Procedures . . . . . . . . 24
ARTICLE VIII
CONTINUANCE, TERMINATION AND AMENDMEN7' OF PLAN AND TRUST 24
Section 8.1 Continuance of Plan by
Successor Government . . . . . . . . . . . . . 24
. Section 8.2 Distribution of 7.'rust Fund on
Termination of Plan . . . . . . . . . . . . .25 .
Section 8.3 Amendment or Te:rmination of
Plan and Trust Agreement . . . . . . . . . . . 25
ARTICLE IX MISCELLANEOUS . . . . . . . . . . . 26
Section 9.1 Transfers Between Qualified
Plans . . . . . . . . . . . . . . . . . . . 26
Section 9.2 Benefits to be Provided Solely
from the Trust Fund . . . „ . . . . . . . . . 27
Section 9.3 Notices from Participants to be
Filed with Retirement Board . . . . . . . . . 27
Section 9.4 Agent for Service of Process 27
Section 9.5 Text to Control . . . . . . . . . . 27 Section 9.6 Law Governing and
Severability . . . . . . . . . . . . . . . . . 28
Section 9.7 Employer's Obligations . . . . . . . 28
Section 9.8 Plan for Exclusive Benefit of
Participants; Reversion Prohibited . . . . 28
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SAW20&4\90485.4
TOWN OF VAIL
EMPLOYEES' PENSION PLAN
THIS RESTATED PENSION PLAN is adopted by the Town of Vail
(hereinafter referred to as the "Employer"). .
ARTICLE I
NAME AND PURPOSE OF PLAN
The Employer established a qualified money purchase pension
plan for its employees who qualify as participants and their
beneficiaries known as the Town of Vail Employees' Pension Plan
(hereinafter referred to as the "Plan"), for the purpose of
providing retirement benefits for certain of its employees. The
Plan was created and is maintained for the exclusive benefit of the
Employer's eligible employees who qualify as participants and their
beneficiaries. The Plan was initially adopted September 20, 1983
and has been amended from time to time since that date. The
Employer by this document restates the Plan to incorporate all
prior amendments and other changes required by law. Unless
governed by §2.7, the provisions of the Plan restated effective
January l, 1994 shall supersede any and all provisions of the Plan
in effect prior to December 31, 1993. Participants who terminate
employment prior to January 1, 1994 shall have their benefit under
the Plan determined in accordance with the provisions of the Plan
in effect on the date of termination of employment. Any
Participant who was a Partici.pant.in the:.,Plan on December 31, 1993
shall continue as a Participant in the Plan under this amended and
restated Plan. The Plan is intended to qualify under the
applicable provisions of Section 401(a) of the federal Internal
Revenue Code and the Trust created in conjunction with the Plan is
intended to be exempt under Section 501(a) of such Code and all
provisions of this Plan shall be construed in accordance with this
intention. Since this is a government plan, it is not intended
that the Plan 'or Trust comply with any provision of the Employee
Retirement Income Security Act of 1974, as amended, except to the
extent the requirements of such Act are specifically applicable to
government plans.
ARTICLE II
DEFINITIONS
When used herein, the following words sliall have the following
meanings, unless the context clearly indicates otherwise:
Section 2.1.-- "Administrator" means the Retirement Board as
defined at Section 2.14.
SAW152084\90485.4
Section 2.2 "Anniversarv Date" means the last day of the
plan year, which is currently December 31.
Section 2.3 "Beneficiarv" means the person or entity who,
pursuant to Article VI of this.Plan, becomes entitled to receive a
Participant's interest upon the Participant:'s death.
Section 2.4 "Break in Service" xneans any twelve (12)
consecutive months of service ending on the Employment Anniversary
Date during which an Employee fails to earn a Year of Service for
vesting purposes.
Section 2.5 "Code" means the Internal Revenue Code of 1986,
as amended. References to a section of the Code shall mean.the
section in effect at the date of adoption of the Plan, or the
corresponding provision, or the provision that is equivalent in
purpose and effect, of any.subsequent federal tax law.
Section 2.6 "Compensation" means tlze base salary paid-by
the Employer to a Participant for serv:ices rendered to the
Employer, excluding bonuses, overtime pay, severance pay, shift
differentials, longevity pay, and any other form of compensation,
insurance premiums, pensions and retireme:nt benefits, and all
contributions by the Employer to the within Pension Plan, to any
health, accident or welfare fund or plan, to any deferred
compensation plan,. to any other qualified retirement plan or
simplified employee pension plan, or any similar benefit, any
amount received as cash under a profit-sharing plan cash option
provision, and any other amounts which receive special tax
benefits, provided that compensation reductions pursuant to the
Employer pick-up of employee contributions pursuant to Code Section
414 (h) shall not be excluded as compensation except for the,purpose
of applying the limitations on allocations and benefits under Code
Section-415. Further, compensation shall not include any amounts
realized on the transfer of property rights f:rom the Employer. The
annual c.ompensation of any Participant taken into account under the
terms of the Plan for any Plan Year shall r.iot exceed One Hundred
and Fifty Thousand Dollars ($150,000), as acijusted for changes in
the cost of living as provided by law or regulation.
Section 2.7 "Effective Date" of this Plan is January 1,
1994,.provided that each cnange to this Plan which is required for
compliance with the Tax Reform Act of 1986 or subsequent
legislation or regulations shall be effecti-ve as of the required
date of such provision, if before January 1, 1994.
Section 2.8 "Emplovee" means any person now or hereafter in
the employ of the Employer, but excluding all employees who are riot
in the Employer's employ -in any other c:apacity, independent
contractors and full-time paid sworn police officers and
firefighters employed by Employer. In addition, a leased employee
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SAW\52084\90485.4
q
within the meaning of Section 414(n)(2) of the Code shall be
considered an employee of the Employer, provided that if such
leased employee constitutes less than twenty percent (20%) of the
Employer's non-highly compensated work force within the meaning of
Section 414(n) of the Code, the term "Fmployee" shall not inelude
any leased employees covered by a Plan described in Section
414 (n) (5) of the Code.
Section 2.9 "Emnloyer" means the Town of Vail, a town
within the State of Colorado. Any action to be taken or
determination to be made by the Employer shall be by action of the
Town Council of the Town of Vail except to the extent such
authority is delegated by the Town Council of the Town of Vail.
Section 2.10 "Employment Anniversary Date" means the last
day of the twelve (12) month period beginning on an Employee's date
of hire and the same date.in subsequent years. For this purpose,
an Employee's date of hire is the first day in which an Employee
completes an hour of employment.
Section 2.11 "Full-Time Recrular Employee" means an employee
who it is anticipated will work at least 1,000 hours per year in a
position which does not have a definite duration of less than six
(6) months.
Section 2.12 "Highly Compensated Emplovee" means highly
compensated active employees and highly compensated former
employees determined in accordance with the following rules:
(1) Active Employees. A highly compensated active
employee includes any employee who performs service for the
Employer during the determination year and who:
(a) received compensation from the Employer during
the look-back year in excess of $75,000 (as adjusted pursuant to
Section 415(d) of the Code);
(b) received compensation from the Employer during
the look-back year in excess of $50,000 (as adjusted pursuant to
Section 415(d) of the Code) and was a member of the top paid group
for such year (the highest 20% of the employees of the Employer in
the order of compensation);
(c) was an officer of the Employer during the look-
back year and received compensation during such year that is
greater than 50% of the dollar limitation in effect under Section
415 (b) (1) (A) of the Code; and
(d) was a 501 owner at any time during the look-back
year or determination year.
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SAWA52084\90485.4
t
The term "highly compensated employee" also includes
employees who are both described in the pre.r.eding paragraphs if the
term "determination year" is substituted i:or the term "look-back '
year" and the employee is one of the 100 employees who received the
most compensation from the Employer during the determination year.
(2) Hiahest Paid Officer. If nio officer has satl
the compensation requirement of (1) (c) af this Section
either a determination year or look-back year, the highest paid
officer for such year shall be treated as a highly compensated em-
ployee.
(3) Determination Year. Far the purposes of this
Section, the determination year shall be the Plan Year. The look-
back year shall be the twelve month perioci immediately preceding
the determination year.
(4) Former Employees. A highly compensated former
employee includes any employee who separate:d from service (Gr Y-~=Ws
deemed to have separated) prior to the determination year, perfv~ ::s
no service for the Employer during the determination year, and t;ras
a highly compensated active employee ior either the separation year
or any determination year ending on or after the employee's 55th
birthday. (5) Familv Members.. If an employee is, during a
determination year or look-back.year, a family member of either a
5arowner who is an active or former employee or a highly
compensated employee who is one of the 10 most highly compensated
employees ranked on the basis of compensation paid by t.he Employer
during such year, then the family membed and the 5 0 owner or top 10
highly compensated emp.loyees shall be aggrPgated. In such case,
the family member ana 506 owner o_r ~:.op 10 highly compensated
employee shall be treated as a single employee receiving
compensation and Plan contributions or benefits equal to the sum of
such compensation and contributions or benefits of the family
member and 5 0 owner or top 10 highly compensated employee. For
purposes of this Section, family member incltzdes the spouse, lineal
ascendants or descendants of the employee or former employee and
the spouses of such lineal ascendants or descendants.
(6) Rules of Construction. The d.etermination of who is
a highly compensated employee, including the determinations of the
number and identity of employees in the top-paid group,.the top 100
employees, the number of employees treateal as officers and.the
compensation that is considered, will be made in accordance with Section 414(q) of the Code and the regulaticDns thereunder.
Section 2.13 "Recreation District" means Vail Metropolitan
Recreation District, a special governmental district within the
State of Colorado.
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SAW\52084\90485.4
9
Section 2.14 "Retirement Board" means the Trustees
appointed pursuant to Article VII of the Trust Agreement of the
Tovan of Vail Employees' Pension Plan, dated September 20, 1983,
Amended the 7th day of August, 1990 and restated in its entirety
the day of , 1994.
Section 2.15 "Total Disabilit " means a disability which
permanently renders a Participant unable to perform satisfactorily
the usual duties of the Participant's employment with the Employer,
as determined by a physician selected by the Retirement Board, and
which results iri the Participant's termination of service with the
EmploXer. A finding of disability by the federal Social Security
Administration shall be conclusive evidence of disability.
Section 2.16 "Trustee" means the Trustee or Trustees of the
Trust Fund established in conjunction with this Plan and any duly
appointed and qualified successor or additional Trustees;
additionally referred to as Retirement Board.
Section 2.17 "Trust Fund" means the assets of the Trust
established in conjunction with tYiis Plan out of which the benefits
of this Plan shall be paid and shall include all income of whatever
nature earned by the Fund and all increases in fair market value.
Section 2.18 "Year" and "Plan YPar" mean the fiscal year. of
the Trust established pursuant to this Plan. The Plan Year begins
on January 1 and ends on December 31.
Section 2.19 "Year of Service" means a twelve (12) con-
secutive month period ending on an Employment Anniversary Date
during which the employee is a Full-Time Regular. Employee
throughout such period.
ARTICLE III
PARTICIPATION OF EMPLOYEES .
Section 3.1 Eligibilitv. '
Each Full-Time Regular Employee of the Employer shall become
a Participant in the.Plan on the date af employment or, if later,
the date on which the Employee becomes a Full-Time Regular Employee.
Section 3.2 Participation of Non-Full-Time Recrular
Employees.
Any employee who.is not a Full-Time Regular Employee and as a
result is not eligible in accordance with Section 3.1 shall be
eligible to.participate in the Plan on a limited basis as provided
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SAW\52084\90485.4
e
. in Section 4.2 below. Such participation sY.iall be effective as of
such employee's date of employment.
Section 3.3 Retirement Board to Determine Participants.
The Retirement Board shall have the duty and responsibility of
determining when an employee becomes a Pzirticipant and when a
Participant is eligible to snas,e in the Employer's contribution.
The determination of the Retirement Board as to the identity of the
respective Participants and as to their respective interests shall
be binding upon all employees, all Flarticipants and all
beneficiaries of the Participants:
ARTICLE IV
CONTRIBUTIONS AND LIMITATIONS ON ALLOCATIONS
Section 4.1 Contributions by the Emplover for Full-Time
Reaular Employees.
The Employer shall contribute and.pay into the Trust Fund for
each pay period to the credit of the Employer Contributions Account
of each Participant who is a Full-Time Regular Employee an amount
equal to 11.15% of such Participant's compensation for such.pay
period during the first year of employment and 16.150 of such
Participant's compensation thereafter. Notwithstanding the
foregoing, the rate of contribution of any such employee whose date
of employment with the Employer was prior to June 1, 1986 will
remain at 17.60. The Employer shall make payment of its
contribution for each pay period in one sum as soon as practical
after the end of,such pay period. Such cont:ribution shall be made
in cash. The contribution provided above for any employee shall be
reduced by the amount of taxes paid by the Employer on behalf of
such employee pursuant to the federal Social Security Act or any
amendment thereto. Such contribution reduct:ion shall be effective
at the same time as any such payroll tax mandated by the Social
Security Act or any amendment becomes effect:ive.
Section 4.2 Contributions for TTon-Full-Time Regular
Employees.
(a) Employer Contributions. For each Plan Year, the
Employer shall contribute to the Plan to the credit of the Employer
Contribution Account of each Participant who is not a Full-Time
Regular Employee, an amount equal to 1.50 of the Participant's
eligible compensation. The contribution of the Einployer for any
Plan Year shall be made no later than 2-1/2 months following the
end of the Plan Year.
(b) Employee Contributions. Eac,h employee who is a
Participant but not a Full-Time Regular Employee shall be required
-6-
SAW152084\90485.4
to contribute 60 of the Participant's compensation to the Plan for
each Plan Year.
(c) Emplover Pick-Up Contributions.. The employee con-
tribution of each Participant who is not a Full-Time Regular
Employee shall be made by the Employer and deducted from the
compensation otherwise paid to the employee. Such contributions
shall be considered to be pick up contributions under the terms of
Section 414(h) of the Internal Revenue Code of 1986. Such Partici-
pants shall not have the option of whether or, not such
contributions shall be treated as Employer pick-up contributions.
Section 4.3 Voluntarv Contributions by Participants.
Each Participant may make voluntary non-deductible
contributions to the Trust Fund for eac.h year in which he or she is
a Participant in such'amounts as the Participant may elect in the
Participant's sole discretion, provided that the total of such
amounts, when combined with the Farticipant's nondeductible
employee contributions to any other qualified retirement plan.
maintained by the Employer, subject to the limitations of
Section 4.5 below, may not exceed the following percentages of the
Participant's compensation for such year. If Employer contribution
is.
17.60, then 7.4%;
16..15%, then 8.850; 11.150, then 13.850.
A Participant may make a contribution for any year at any time or
times during such year or within thirty (30) days after the end of
such year, provided such contributions will be credited to the
Participant's account no later than the last day of such year. The
amount, if any, which a Participant contributes to the Trust Fund
may vary from year to year and may be c:ontributed in one sum or in
installments, provided, that no contribution in any amount less
than ten dollars ($10.00) may be made by the Participant at any one
time. Such contribution shall be made in cash. All contributions
shall be made to the Trustee. No Participant shall have any
obligation to make any contribution. Deductible voluntary
contributions are not permitted.
Section 4.4 Return of Em lo er Contributions.
Notwithstanding the provisions of Article. IX below, a
contribution made by the Employer may be returned to the Employer
if the contribution is made by reason of a mistake of fact. The
amount which may be returned to the Employer is the excess of (i)
the amount contributed over (ii) the amount that would have been
contributed had there not-occurred a mistake of fact. The return
to the Employer of the amount involved must be made within one year
-7-
SAW2084\90485.4
of the mistaken payment of the contribution or disallowance of the
deduction as the case may be.
Section 4.5 Limitations on Allocations.
(a) General Rule. In no event may a Participant receive
an allocation for any year which, when combined with the
Participant's allocation under any other defined contribution plan
established by the Employer, exceeds the lesser of twenty-five
percent (25%) of the Participant's compensa.tion for such year or
Thirty Thousand Dollars ($30,000), provided such figure shall
change to conform with any adjustment for c:hanges in the cost of
living after the enactment of the Tax Equity and Fiscal
Responsibility Act of 1982 or for any other reason, as provided by law or regulation. For the purpose of applying the foregoing
limitation, the limitation year.shall be the Plan Year. If a short
limitation year is creat.ed as a resulL of a change in the
limitation year, the dollar limitation for such short limitatior.
year shall be the dollar limitation set for•th in this subsection
multiplied by a fraction, the numerator of which is the number ot
months in such,short limitation year and the denominator of which
is twelve (12). (b) Allocations. For the purpose of applying the
Iimitations of this section, the allocation to the Participant
shall include the following amounts allocate:d to the account of a
Participant for a limitation year: (i) Em.ployer contributions,
(ii) forfeitures, and (iii) non-deductible contributions made by
the Participant. For the purpose of applyir.ig limitations of this
Section, compensation from and allocations received under any
retirement plan maintained by any other employer which is a common
member with the Employer of either a controlled group of businesses
or an affiliated service group, as prescribed by law or regulation,
shall be counted.
(c) Excluded Amounts. Any amount not menti.oned in
subparagraph (b) shall not Yie considered an allocation. The
amounts not considered as allocations include deductible
Participant contributions, rollover contributions and transfers
from other qualified, plans allocated to the account of a
Participant.
(d) Treatment of Excess. In the event an allocation
would otherwise exceed the limitations of this section, any non-
deductible voluntary contribution by the Participant which is
counted as part of such allocation shall be returned to.such
Participant to the extent necessary to reduce: such allocation to a
level in compliance w'ith the limitations of t]zis section. If after
such return of contributions there still remains an excess, the
excess over such limitations. shall be held :in a suspense account
until such amount can be applied to reduce the next contribution of
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SAW2084\90485.4
e
the Employer. If the Employer mainta:ins more than one qualified
defined contribution plan, the excess shall be considered to have
first occurred in the plan to which the contribution of the
Employer is discretionary, and if there is no such plan, the excess
shall.be treated as having occurred in all defined contribution
plans on a pro rata basis based upon the Employer contribution to
each of the plans. If this plan is terminated when there is an
amount held in such suspense account, the amount held in such
account.which cannot be allocated to Participant without exceeding
the foregoing limits shall be returned to the Employer.
(e) Compensation. For the purpose of this Section and
Section 4.5, compensation shall mean compensation as defined in
Section 2.6, provided that any taxable compensation excluded under
such Section shall be included as compensation.
Section 4.6 Limitazion on Benefits and Contributions When
an Emplovee Participates in Both a Defined Benefit and a Defiried
Contribution Plan of the Employer.
In any year if a Participant in this Plan is or ever has been
a Participant in a defined benefit plan maintained by the Employer,
then the sum of the defined benefit plan fraction and the defined
contribution plan fraction (both as p.rescribed by law) for such
Participant for such year shall not exceed 1.0. In any year if the
sum of the defined benefit plan fraction on behalf of a Participant
would exceed 1.0, then the allocation under' this plan shall be
reduced to the extent necessary so that the sum of such fractions
does not exceed 1.0. For purposes of this Section, the limitation
year shall be the Plan Year. The defined benefit plan fraction for
any Participant shall be the fraction, the numerator of which is
the projected annual benefit of the Participant under the Plan
(determined as of the close of the year), and the denominator of
which is the lesser of (i) the product of 1.25 multiplied by the
maximum dollar limitation for benefits set forth in subsection
415 (b) (1) (A) of the Internal Revenue Code for such year, or (ii)
the product of 1.4 multiplied by the percentage limitation set
forth under section 415 (b) (1) (B) under the Code with respect to
such Participant for such year. The defined contribution plan
fraction shall be the fraction, the numerator of which is the sum
of the annual additions to the Participant's account as of the
close of the year for such year and all prior years, and the
denominator of which is the sum of the lesser of the following
amounts determined for such }rear and for each prior year of service
with the Employer: (i) the product of 1.25 multiplied by the
dollar limitation in effect under subsection 415(c)(1)(A) of the
Internal Revenue Code for such year, or (ii) : the product of 1.4
multiplied by the amount which may be taken into account under
subsection 415 (c) (1) (B) of the Code with respect to such individual
under such plan for such year with respect to dollar limitations.
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4
Section 4.7 Contribution Percentaqe Test for Matching and
Emplovee Contributions.
(a) General. The Average Contribution Percentage in any
year of all Participants who are Highly Com.pensated Employees may
not exceed the greater of the following amounts:
(1) 125a of the Average Cont:ribution Percentage for
such Year of all Participants wno are not Highly Compensated
Employees; or . (2) The Average Contribution Percentage for such
Year of all Participants who are not Highly Compensated Employees,
plus two percentage points (2%), 1.imited to two times the Average
Contribution Percentage for all such Participants.
For purposes of the foregoing, the Average Contribution
Percentage is the average of the sum of the matching contributioris
allocated to the accounts of the applicable Participant nlus such
Participant's voluntary non-deductible con±:ributions, divided by
the total compensation of suc-h Partic:ipant for each such
Participant. If the amount to be contributed by the Employer
and allocated to the accounts of Participants who are Highly
Compensated Employees exceeds the foregoing limitations, then the
amount so allocated shall be reduced, pro-rata among such
Participants, to the extent necessary to siatisfy such limitation
and such excess amount, together with earnings thereon, shall be
distributed to such Participants no later t:han 2-1/2 monrhs after
the end of the Plan Year in which such contributions were made.
(b) Adiustment of Contribution Percentacre. The Employer
may in its discretion make contributions to the Plan which shall ne
designated as additional matching contributi.ons and which shall be
allocated to the accounts of Participants who are not.Highly
Compensated Employees, in order to increase the Average
Contribution Percentage of such Participants.
(c) Excess AQgregate Contributions. Matehing
contributions and employee contributions: in excess of the
limitations of.this Section are excess aggriagate contributions.
(d) Disposition of Excess Actctregate Contributions.
(1) General. Notwithstandi:ng any other provision
of this Plan, Excess Aggregate Contribution,s, plus any income and
minus any loss allocable thereto, shall be :forfeited, if forfeit-
able, or if not forfeit- able, distributed no later than the last _
day of each Plan Year to Participants to whose accounts such Excess
Aggregate Contributions were allocated for the preceding P1an Year.
Excess Aggregate Contributions shall be allocated to Participants .
who are subject to the Family Member aggregiation rules of Section
-10-
SAW\52084\90485.4
41(q)(6) of the Code in the manner prescribed by the regulations.
If such Excess Aggregate Contributions are distributed more
than 2-1/2 months.after the last day of the Plan Year in which such
excess amounts arose, a 101i excise tax will be imposed on the
employer maintaining the Plan with respect to those amounts.
Excess Aggregate Contributions shall be treated as annual additions
under the Plan.
(2) Determination of Income or Loss. Excess
Aggregate Contributions shall be adjusted for any income or loss up
to the date of distribution. The income or loss allocable to
Excess Aggregate Contributions is the sum of: (i) income or loss
allocable to the Participant's Employee Contribution Account,
Matching Contribution Account, if applicable, Qualified Non-
Elective Contribution Account for the Plan Year multiplied by a
fraction, the numerator of which is such Participant's Excess
Aggregate Contributions for the year and the denominator of which
is the Participant's account balance(s) attributable to Contribu-
tion Percentage Amounts without regard to any income or loss
occurring during such Plan Year; and (ii) 101i of the amount
determined under (i) multiplied by the number of whole calendar
months between the end of the Plan Year and the date of
distribution, counting the month of distribution if distribution
occurs after the 15th of such month. ,
(3) Forfeitures of Excess Acrqrecrate Contributions.
Forfeitures of Excess Aggregate Contributions shall be applied to
reduce Employer contributions.
(4) Accountincrfor Excess AaQregate Contributions.
Excess Aggregate Contributions shall be forfeited, if forfeitable
, or distributed on a pro-rata basis from the Participant's Employee
Contribution Account, Matching Contribution Account, and Qualified
Matching Contribution Account (and, if applicable, the
Participant's Qualified Non-Elective Contribution Account).
ARTICLE V "
DETERMINATION AND VESTING OF PARTICIPANTS' INTERESTS
Section 5.1 Allocation of Employer Contributions.
The contribution made by the Emp].oyer to the credit of the
account of each Participant eligible to participate in the allocation of the Employer's contribution pursuant to the
provisions of Section 4.1 above shall be allocated to the Employer
Contributions Account of each such Participant not less frequently
than monthly. Any allocation shall be subject to the limitations
set forth in Section 4.5 above.
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SAW152084\90485.4
Section 5.2 Allocation of Earnings Losses and Changes in
Fair Market Value of the Net Assets of.the Trust Fund.
(a) General Rule. Earnings and losses of the Trust Fund
and ehanges in the fair market value of the:net assets of the Trust
Fund shall be allocated to the Participants as of each regular
valuation date, in the ratio which the total dollar value of the
interest of each such participant in the T:rust Fund bears to the
aggregate dollar value of all of such interests of all such
Participants as of the last previous regula.r valuation date.
(b) Special Rule When There Are Sectregated Accounts.
For the purpose of the foregoing allocations, the amount of each
Participant's interest in the fund, if ar.iy, that is held in a
segregated account pending distribution pursuant to Article VII
below, and the earnings and losses resulting thereto, shall be
excluded. The segregated account of a Pairticipant shall alone
participate in the income, gains or losse:s of the praperty so
segregated and alone be liable upon contrac;:s made for its benefit
or liabilities arising from such investmerlt. Any extraordinary
expenses resulting from the investments macie at the direction of
the Participant shall be borne solely by such Participant's
segregated account.
Section 5.3 Participant Accounts.
The following accounts shall be maintained for the
Participants in the Plan:
(a) Employer Contributions Account. This account shall
show the dollar value of the Part.icipant's current interest.in the
Trust Fund resulting from all Employer rontributions and all .
amounts transferred from the Participant's account in the Town of
Vail Pension.Plan attributable to Employer contributions.
(b) Participant Contributions Account. This account
shall show the dollar value of the Participant's current interest
in the Trust Fund resulting from all contributions made by the
Participant.
Section 5.4 Valuation of Accounts.
(a) Reaular Valuation. The regular valuation dates of
the Trust Fund shall be the last day of each calendar quarter
(March 31, June 30, September 30 and December 31) at which time the
Retirement Board shall determine the value o:E the net assets of the
Trust Fund, i.e., the value of all of the assets of the Trust Fund
at fair market thereof, less all liabilities, both as known t.o the
Trustee, and the value of contributions by the Employer for such
year. In the event that distribution is mai3e to a Participant or
an annuity is to be purchased for the Part_Lcipant's benefit, the
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SAW\52084\90485.4
valuation of such Participant's account shall occur as of the end
of the quarter prior to such distribution or the purchase of an
annuity. In no event shall valuation take place prior to the end
of the quarter in which distribution is requested by the
Participant..
Section 5.5 Vesting of Participants' Interests.
(a) Participant's Contributions. A Participant's
interest in the contributions made by him, if any, and the
. earnings, losses and changes in fair market value thereof, shall be
fully vested at all times.
(b) Contributions for Full-Time Regular Emplovees Hired
Before July 1, 1986. In the case of a. Participant who is a Full-
Time Regular Employee whose date of employment with the Employer is
prior to July 1, 1986, such Participant's vested percentage in
Employer contributions made on the Participant's behalf pursuant to
Section 4.1 at any time shall be determined according to the
following schedule, based upon years of service:
Years of Service Vested Percentacre
Less than 1 po
1 7 7. 516
2 85%
3 92.50
4 or more 100a
(c) Contributions for Full-Time Regular Employees Whose
Date of Emplovment is After June 30 1986. In the case of a
Participant who is a Full-Time Regular Employee whose date of
employment with the Employer or the Recreation District is after
June 30, 1986, such Participant's vested percentage in Employer
contributions made on the Participant's behalf pursuant to Section
4.1 at any time shall be determined according to the following
schedule, based upon the Participant's.years of service:
Years of Service Vested PercentaQe
Less than 1 Oo .
1 20%
2 40%
3 60%
4 800
5 or more 100%
(d) Vestina for Contributions for Non-Full-Time Regular
Em lo ees. The contribution made pursuant to Section 4.2 by or for
any Participant who is not a Full-Time Regular Employee, whether
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SAW152084\90485.4
the contributions are made by the Participant or by the Employer,
shall be fully vested and nonforfeitable for all purposes.
(e) Lay-Off. Notwithstanding the schedules of vesting
set forth in paragraphs (b) and (c) above; any employee who is laid
off by the Employer prior to the time at which he has completed at
least one year of service, such employee shall be consi.dered to
have.one year of service for vesting purposes at the time he
terminates employment as a result of such lay off. (f) Death or Attainment of Normal Retirement Age. The
vested percentage of a Participant shall be 100o in the event the
Participant dies or attains his or her normal retirement age while
still employed by the Employer.
(g) Forfeitable Interests. Any portion of the interest
of a Participant which shall not have become vested. shall be a
forfeitable interest. A forfeiture shall occur on the earlier of
the distribution of the vested account ba:lance of the Employer
Contributions Account or Break in Service. All forfeitures,
including earnings thereon, shall be applied to pay the expenses of
the Plan and Trust and.if any forfeitures remain after paying such
expenses, such remaining forfeitures shall be applied to reduce any
subsequent contribution of the Employer as determined by the
Retirement Board.
Section 5.6 Determination of Years <Df Service for Vestina
Purposes.
In determining a Participant's years af service for vesting
purposes, all of the.Participant's service with the Employer and
Recreation District shall be taken into account subject to the
following limitations:
(a) A Year of Service for vesting purposes means a
twelve (12) consecutive monthly periad enciing on an Employment
P.nniversary Date during which the employee is a Full-Time Regular
Employee throughout such twelve-month period and is employed on the
Employment Anniversary Date. Notwithstanding the foregoing, any
employee who is laid off or is terminated by the Employer prior to
the time at which he has completed at least one Year of Service,
such employee shall be considered to have one Year of Service for
vesting purposes at the time he terminates E.mployment as a result
of such lay off or termination.
(b) If a Participant incurs a Break in Service, service
prior to such Break in Service shall be counted in determining the
Participant's vested interest in Employer co:ntributions made after
he returns to the employ of the Employer.
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SAW\52084\90485.4
(c) Al1 service with the Recreation District shall be
counted for vesting purposes as if it were service with the
Employer.
Section 5.7 Leaves of AbsenceMilitary Service.
A leave of absence not in excess of one year granted by the
Employer for purposes other than military service shall not be
considered as a Break in Service or a termination of employment.
The Employer may, from time to time, extend such leave of absence
for additional periods of not in excess of one year each in
accordance with the personnel rules and regulations of the
Employer.
' Any employee or Participant who has entered or enters the
Armed Forces of the United States shall be presumed to be on a
leave of absence, regardless of the length of such service, and
such leave of absence shall not be considered as a Break in Service
or a termination of employment, pr_ovided such leave is in
compliance with the personnel rules and regulations of the
Employer.
A Participant shall not be credited with service during any
period during which he is on a leave.of absence or in military
service, as provided above unless he receives or is entitled to
receive compensation from the Employer for such period.
Section 5.8 VestinQ Upon Termination of Plan or
Discontinuance of Contributions to the Plan.
Upon the termination, or partial termination, of the Plan or
the complete discontinuance of contributions under the Plan to the
Trust, the interests of all affected employees shall become fully
and completely vested and non-forfeitable for all purposes.
. ARTICLE VI
RETIREMENT DATE DETERMINATION OF BENEFICIARY
Section 6.1 Retirement Date.
The normal retirement age for each Participant shall be sixty
(60) years.. An employee may elect to retire voluntarily after
attaining the age of fifty (50) years, provided the Participant has
completed four (4) Years of Service (as determined pursuant to
Section 2.16) prior to such retirement. A Participant shall be
entitled to retire voluntarily on or after the Participant's normal
retirement date. Until actual retirement, a Participant shall
continue to participate in the Plan.
Section 6.2 Determination of Beneficiar .
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SAW\52084\40485.4
(a) DesiQnation of Beneficiaries,. A Participant shall
have the right to designate a beneficiary oi- beneficiaries and one
or more contingent beneficiaries to receive the Participant's
interest in the Trust Fund upon his death, such designation to be
made on the form prescribed by and delive:red to the Retirement
Board. The Participant shall have the rig]at to change or revoke
any such designation from time to time by fi_ling a new designation .
or notice of revocation with the Retirement Board, and no notice to
any beneficiary nor consent by any beneficia:ry shall be required to
effect any such change or revocation.
: (b) Determination of Beneficia:ry When There is no.
Desicrnated Beneficiary. If a Participant shall fail to designate
a beneficiary before the Participant's death, or if all designated
beneficiaries or contingent beneficiaries should die, cease to
exist or disclaim their interests prior to distribution, the
Retirement Board shall pay the Participant'sc interest in the Trust
Fund to the Participant's surviving spouse, if any, or if none,
then to the personal representative of the Participant's estate.
If, however, no personal representative shall have been appointed,
and the actual notice thereof given to the Retirement Board within
one hundred twenty (120) days after the Par_ticipant's death, the
Retirement Board may pay.the Participant's interest to such person
or persons as may be entitled thereto under the laws of the s.tate
where such Participant resides at the date of thA Participant's
death, and in such case, the Retirement Board may require such
proof of right or indemnity from such person or persons as the
Retirement Board may deem necessary.
(c) Insurance Policies. The beneficiary of any
insurance contract on a Participant's life shal.l be determined and
designated as provided in the Trust Agreement established in
conjunction with this Plan.
ARTICLE VII
DISTRIBUTION FROM TRUST FUND
Section 7.1 When Interests Become Distributable and Effect
Thereof.
When a Participant dies, suffers total disability, retires or
terminates his or her employment for an.y other reason, the
Participant's vested interest in the Trust Fund shall thereupon
become distributable as hereinafter provided in this Article.
Distribution shall not be permitted prior to the occurrence of one
of the foregoing events other than to comply with the distribution
commencement date requirements of Section 7..4 or to comply with a
qualified domestic relations order pursuant to Section 7.9(b).
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SAW\52084\90485.4
Section 7.2 Notification of Trustee and Transfer of
Interest to Segregated Account.
(a) Notification of Trustee. As soon as possible after
a Participant's vested interest shall have become distributable,
the Retirement Board will determine the Participant's address, the
amount of the Participant's vested interest which has become
distributable, the reason for its having become distributable and
the manner of distribution in accordance with the Plan.
(b) Transfer to SeQreQated Account. The Retirement
Board.-may transfer a Participant's distributable interest from the
general Trust Fund into a segregated ac.count within the Trust Fund
to the credit of such Participant. If such interest is not
transferred, the Retiremerit Board shall make such distribution, in
cash or in kind, directly from the general Trust Fund.
(c) Searecrated Account for Participants Who Attain the
Acte of Fifty (50): When a Participant who has a one hundred
percent (1000) vested interest in his ar her Employer Contribution
Account attains the age of fifty (50), he shall have the option to
direct the Retirement Board to establish a segregated account .
within the Trust Fund to which will be allocated the entire balance
to the Participant's credit attributable to both employee and
Employer contributions. Such option. shall be exercised by a
written election filed with the Retirement Board at least three (3)
months in advance of the date on which the segregation will take
place. Once such an election has been filed, it shall be -
irrevocable and all future contributions to the Plan shall be made
to such segregated account. The assets of the segregated account
attributable to the employee and the Employer contributions will be
invested as provided in subparagraph (d) below.
(d) Investment of Seqrectated Account. Any segregated
account maintained for a Participant's interest shall be invested
by the Retirement Board in any one or more of the investments -
authorized in .the Trust Agreement. Notwithstanding any other
provisions of this Plan, the segregatEd account of a Participant
shall alone participate in the income, gains or losses of the
property so segregated and alone shall be liable upon contracts
made for its benefit or liabilities arising from the investment of
such account. Any expenses resulting fr.om the investments made for
the benefit of such account shall be borne solely by such
Participant's account, unless otherwise determined by the
Retirement Board. Anticipated earnings or interest on any such
investments shall be taken into account in determining the amount
of the equal installments to be paid to the Participant or the
Participant's beneficiary.
Section 7.3 Time of Distribution. -17-
SAW\52084\90485.4
(a) Distribution Upon Retirement: or Disabilitv. If a
Participant retires on or after the Participiant's normal retirement
age or becomes totally disabled, his interest shall be distribu-
table commencing no later than the earlier of sixty (60) days after
the close of the Plan Year in which the Participant's termination .
of employment occurs, or the required distribution commericement
date set forth in Section 7.4, subject to trie consent requirements
of subsection (e) of this Section.
(b) Distribution Upon Death. Zf-a Participant.dies, the
Participant's interest shall be distributable commencing no later .
than sixty (60) days after the close of the Plan Year in which the
Participant's death occurs.
(c) Distribution Upon Other Termination of Employment.
If a Participant terminates his or her emp:loyment for any reason
other than retirement after attaining normal retirement age,
disability or death, the Participant's interest shall be
distributable commencing no later than sixt:y (60) days after the
Participant incurs a Break in Service, or, if later, within sixty
(60) days after the regular valuation as of the end of the Plan
Year is completed, subject to the consent requirements of
subsection (e) of this Section.
(d) Distributi.on of Participant's Interest in Em.plover's
Contribution for Year of Termination. The vested interest of the
Participant in the Employer's contributi.on for the year of
termination shall be distributed to the Participant or his or her
beneficiary as soon as practicable after the end of such year by
the allocation of such interest to the Part:icipant's account.
(e) Participant Consent and De:Eerral Election. No
distribution under this Plan may be made to a Participant whose
vested interest exceeds Three Thousand, Five Hundred Dollars
($3,500) prior to the later of the Participant's normal retirement
age, or the Participant's sixty-second (62nd) birthday without the
Participant's written consent. A Participaizt may elect, with the .
consent of the' Retirement Board, to have trie commencemen.t of the
Participant's benefit deferred until a date later than .the date
specified in subsection (a), (b) or (c) of this Section 7.3, but
in no event shall the commencement of distY•ibution be later than
the required distribution commencement date. specified in Section
7.4. Any election under this subsectic>n shall be made by
submitting to the Retirement Board a written request, signed by the
Participant which describes the benefit and the date on which.the
payment of such benefit shall commence.
(f) Distribution of a Participant's Contributions. Any
other provision of this Section 7.3. to the contrary
notwithstariding, a Participant, in the event of the termination of
his or her employment for any reason, shall :be entitled to receive
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SAVV\52084\90485.4
payment in.one lump sum of his or her interest in the Trust Fund
represented by the contributions actually made by him, provided he
makes written demand therefor upon the Retirement Board. The
earnings, gains and increases in fair market value of the
Participant's voluntary contributions account shall be distributed
at the same time and in the same manner as the Participant's
interest attributable to Employer contributions.
Section 7.4 Required Distribution Commencement Date.
Distribution of a Participant's interest must begin no later
than April 1 of the calendar year following the calendar year in
which takes place the later of the date the Participant attains the
age of seventy and one-half (70-1/2) or the date the Participant
retires.
Section 7.5 Manner of Distribution.
When a Participant's interest shall become distributable, the
Paxticipant shall elect the form and timing of the distribution.
The Participant shall determine the form of distribution by filing
a written election with the Retirement Board. Distribution may be
made in one or more of the following methods:
(1) Lump Sum Distribution. The Participant's interest
may be paid to the Participant or his or her beneficiary by the
distribution of the total vested bal.ance of the Participant's
account in one lump sum.
(2) Installments. The Participant's interest may be
paid to the Participant or his or her beneficiary in substantially
equal periodic installments (not more frequently than monthly).
Such installments shall not extend over a period exceeding the
Participant's or beneficiary's life expectancy.
(3) Annuities. The Participant's 'interest may be
distributed in the form of a straight-life annuity, an annuity with
~a term certain' of f ive (5), ten (10) or f if teen (15) years, or an
annuity with a one-half (1/2) or two-thirds (2/3rds) survivor
annuity, provided any such annuity contract shall be non-
transferable with respect to such Participant.
Section 7.6 Limitation on Duration of Pavments.
Whenever an amount becomes distributable to a Participant,
such amount shall be distributed over a period not exceeding the
longer of (i) the longer of the life or the life expectancy of the
Participant, or (ii) the longer of the joint lives or the joint
life expectancies of the Participant arid an individual designated.
as a beneficiary by the Participant. To the extent distribution is
made after the Participant attains the age of seventy and one-half
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SAVV\52084\90485.4
(70-1/2), if not paid in a lump sum, the distribution must be made
in substantially equal periodic installments at least annually over
the period prescribed in this subsecti.on subject to acceleration of
payment at the election of the Participant: or beneficiary. The
present value of the benefits payable sole:ly to the Participant
under any elected method must exceed fifty percent (50A) of the
total benefits payable to the Participant iand his or her benefi-
ciaries, unless distribution is in the forin of a qualified joint
and survivor annuity.
Section 7.7 Special Rules for Distributions After the
Participant's Death.
(a) Distributions Commencinct Prior to Death. If
distribution of a Participant's interest had commenced prior to the
Participant's death in accordance with Section 7.6, the remaining
interest of the Participant shall be distributed at least as
rapidly as under the method of distribution being used as of the
date of the Participant's death.
(b) Distributions Commencing Aft.er Death. If distri-
bution of a Participant's interest did not commence prior to the
Participant's death, the entire interest of the Participant shall
be distributed within five (5) years aft:er the death of the
Participant, provided that a distribution commencing wi.thin one
(1) year after the Participant's death to o:r for the benefit of a
designated beneficiary over the longer of the life or the life
expectancy of the designated beneficiary wil.l be treated as having
been distributed within such five (5) year period. If the
surviving.spouse of the Partici.pant is the.designated beneficiary,
distribution is not required to commence ur.itil the date on which
the Participant would have attained the age of seventy and one-half
(70-1/2) and if distribution had not commerxced as of the date of
death of such surviving spouse, the provisi.ons of this paragraph
shall be applied as if such spouse were the Participant.
(c) Beneficiaries. If a Partici.pant should die after
receiving some part,.but not all, of his or her account, the
remaining balance thereof shall be distributed to his or her
beneficiary in manner determined pursuant to this Section 7.7. If
the beneficiary of the Participant should i3ie cease to exist or
disclaim his or her interest prior to the completion of distribu-
tion of the Participant's interest, the remaining dist.ribution
shall be made to the contingent beneficia.ry designated by the
Participant, if any. If any contingent beneficiary should die,
cease to exist or disclaim his or her interest, distribution of the
remainder of the Participant's interest sha=L1 be made to the next
. contingent beneficiary. In the event there i.s not a beneficiary or
contingent beneficiary designated by the Participant to receive
distribution of the Participant's interest, the Participant's
interest shall be distributed in a manner cletermined pursuant to
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SAW\52084\90485.4
• this Section 7.7 to the recipient determined pursuant to Article VI
above.
Section 7.8 Withdrawals. (a) Employer Contributions. A Participant may not at
any time withdraw any part of his or her interest in the Employer
contributions and the earnings, losses.and changes in the fair
market value thereof.
(b) Participant's Voluntarv Contributions. A Participant-may request the withdrawal from his or her voluntary
contributions account of any amount in such account, including
earnings and funds in such account. A Participant desiring such a
withdrawal shall file a written request with the Retirement Board
stating the amount to be withdrawn. The Retirement Board shall
then distribute the amount.requested to the Participant. The right
to withdraw such contributions shall be available to all
Participants in a non-discriminatory manner.
Section 7.9 Spendthrift Provisions.
(a) In General. Except as otherwise provided hereunder,
all amounts payable hereunder by the Retirement Board shall be paid
only to the person or persons entitled thereto, and all such
. payments shall be paid directly into the hands of such" person or
persons and not into the hands of any other person or corporation
whatsoever except for transfers to other qualified retirement plans
or inclividual retirement accounts at the written direction of a
Participant, and such payments shall not be liable for the debts,
contracts or engagements of any such person or persons, or taken in
execution by attachment or garnishment or by any other legal or
equitable proceedings; nor shall any such person or persons have
any right to alienate, anticipate, commute, pledge, encumber or
assign any such payments. or the benefits, proceeds or avails
thereof; provided that nothing herein shall affect, restrict or
abridge any right of setoff, lien or security interest which the
Trust may have in the Participant's interest as a result of its use
as security for a Participant loan to such Participant.
(b) Qualified Domestic Relations Order. Paragraph
(a) of this Section shall not apply to the creation, assignment or
recognition of a right to any benefit payab.le with respect to a
Participant pursuant to a Qualified Domestic Relations Order under
Code Section 414(p). Distribution may be made pursuant to such a
order at any time after the entry of such order. The Retirement
Board shall establish such reasonable procedures as are necessary.
to determine the qualified status of domestic relations orders and
to administer distributions under such qualified orders.
Section 7.10 Insurance Contracts.
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SAW\52084\90485.4
If there.has been an investment in a life insurance.contract
for the benefit of any Participant :whose interest becomes
distributable for any reason other than death, such Participant
may, subject to any limitation set forth elsewhere in this Plan,
obtain an absolute assignment of any such life insurance contract
by informing the Retirement Board of the Participant's election.
If the interest of a.Participant electing such an assignment is not
one hundred perc.ent (1000) vested, tha_ Participant's vested
interest shall first be satisfied out of the values of any such
contracts, and if his or her total vested interest is less than the
total. values of such contracts, such Participant may obtain such
assignment only by paying to the Retirement Board an amount equal
to the difference in the values of such contracts and his or her
vested interest. If such election is not'exercised within thirty
(30) days after the termination of employme:nt, the Retirement Board
shall cause such contract to be surrendered and shall add the
proceeds of such surrender to the interest of the Participant.
Section 7.11 Authorization of Loans to ParticiAants.
(a) Availabilitv of Loans. The Employer may permit
Participant loans. Any such loan shall be made at the request of
the Participant or beneficiary and shall be subject to the re-
quirements set forth in this Section. To trie extent loans are made
available, such loans shall be available to all Participants or
beneficiaries on a reasonably equivalent and non-discriminatory
basis. The Retirement Board may maintain a Participant Loan
Policy, which may.impose additional limitat:ions, restrictions and
requirements which the Retirement Board dete:rmines are necessary or
appropriate provided such loans remain available on an equal, non-
discriminatory basis to all Participants.
(b) Limitation on Amount of Lc>ans. Any loan, when
combined with the principal balance due on a11 other loans made to
the Participant by any qualified retirement plan maintained by the
Employer, shall not exceed the lesser of Fifty Thousand Dollars
($50,000), reduced by the highest outstanding balance of such loans
to the Participant during the one year period ending' on the day
before the date a loan is made, or fifty percent (50%) of such
Participant's vested interest.
(c) Repayment of Loans. Any loan must be repaid in
substantially level amortized installments of principal and
interest, payable at least quarterly over the term of the loan. Any .
loan shall be repaid within five (5) years unless such loan is for
the purpose of the acguisition of a principal resicience for the
Participant. Such a loan for a residence must be repaid over a
reasonable period of time.
-22-
SAW\52084\90485.4 '
0
(d) Interest Rate. Participant loans shall bear a
reasonable rate of interest, as determined under the Participant
Loan Policy.
D
(e) Securitv. All Participant loans shall be adequately
secured. Fifty percent (SOo) of the vested interest of the
Participant in the Trust Fund shall be security for the repayment
of such loan and the Retirement Board may require security in
addition to the Participant's vestecl interest if it deems it
necessary or if the Participant fails to consent to the use of his
or her vested interest as security.
(f) Default. Notwithstanding any other provision of
this Section, if a Participant loan made pursuant to this Section
is in default, the Retirement Board may not foreclose upon the Par-
ticipant's vested interest prior to tPrmination of employment to satisfy such loan. Until a loan in default is satisfied, it shall
continue to bear interest at the rate provided in the note plus
additional interest of two percent (2%) per annum.
Section 7.12 Hardship Distributions.
- (a) Procedure. In the event of an unforeseeable
emergency, a Participant may request a withdrawal for Hardship by
submitting a written request to the Retirement Board, accompanied
by evidence that his or her financial condition warrants an advance
release of funds and results from an unforeseeable emergency which
is beyond the Participant's control. The Retirement Board shall
review the request and determine whether payment of any such amount
is justified. If payment is justified, the amount shall be limited
to an amount reasonably needed to rneet the emergency. The
Retirement Board shall determine the amount and form of payment
with payment to be made as soon as possible following approval.
(b) Hardship Defined. "Flardship" means a severe
financial setback of the Participant resulting from a sudden and unexpected illness or accident of the Participant or a dependent of
the Participant, loss of the Participant's property due to
casualty, or other similar extraordinary and unforeseeable
circumstances, arising from events beyond the Participant's
control. Whether circumstances constitute an unforeseeable
emergency depends on the facts of each case, but, in any case,
payment may not be made to the extent that such hardship is or may
be relieved:
(1) through reimbursement or compensation by
insurance or otherwise;
(2) by liquidation of the Participant's assets, to
the extent that liquidation itself would not cause severe financial
hardship; or
-23-
SAW\52084\90485.4
(3) by cessation of Voluntary Employee
Contributions under the Plan.
o In the event hardship distributions are made available,
such distributions shall be available to all. Participants on a non-
dis.criminatory,basis.
Section 7.13 Claims Procedures.
Upon a Participant's termination of se:rvice with the Employer
for any reason, the Participant or the Par•ticipant's beneficiary .
will be advised by the Retirement Board oi_ his or her rights to
benefits under the Plan. If at any time the Participant or the
Participant's beneficiary feels that he or she is entitled to
benefits, he or she may make a claim for benefits by writing a
letter to the Retirement Board requesting tlze benefits and stating
why he or she feels he or she is entitled t:o them.
If the claim for benefits under the Plan of any Participant or
beneficiary has been denied, the Retirement Board shall provide
adequate notice, in writing, to such Part.icipant or beneficiary
within ninety (90) days after the claim i.s filed. Such notice
shall set forth the specific reasons for such denial, specific
reference to pertinent Plan provisions ori which the denial is
based, a description of any additional mEiterial or information
necessary for the claimant to perfect his or her claims, if any,
and an explanation of why such material or information is neces-
sary, and appropriate information as to the steps to be.taken.if
the Participant or beneficiary wishes to s-ubmit his or her claim
for review. If a notice of the denial of a claiin is not furnished
within ninety (90) days, the claim shall be deemed to be denied and
the claimant shall be permitted to submit his or her claim for
review at that time. Each claim submitted for review shall be
entitled to a full and fair review by the R.etirement Board (or by
a person designated by the Retirement Board.) of all the facts and
circumstances and the preliminary decision denying such claim. The
Participant or beneficiary may request such. a review upon written
application, he or she may review pertinent documents and he or she
may submit issues and comments,in writing. .Any such review'must be
requested wi.thin seventy-five (75) days of the original claim
denial, and a decision on such claim shall be made not later than
sixty (60) days after the Plan's receipt of such request. The
decision on review shall be in writing iind shall irir.lude the
specific reasons for the decision, written in a manner calculated
to be understood by the claimant as well as specific references to
the pertinent Plan provisions on which the decision is based.
ARTICLE VIII
CONTINUANCE, TERMINATION AND AMENDMENT OF PLAN AND TRUST
Section 8.1 Continuance of Plan bv Successor Government.
-24-
SAW\,52084\90485.4
D
A successor government may continue this Plan by proper action
of its legislative body by exe.cuting a proper supplemental
agreement to this Plan and by executing a proper supplemental
agreement to the Trust Agreement esta:blished in conjunction with
this Plan with the Trustee. All Participants in this Plan shall
have those rights and obligations they had under the previous
government. Section 8.2 Distribution of T:rust Fund on Termination of
Plan. If the Plan shall, at any time, be terminated by the terms of
this Article, the value of the interest of each respective
Participant or beneficiary in the Trust Fund shall be vested in its
entirety and non-forfeitable as of the date of the termination of
the Plan. Upon the termination of the Plan, the Employer in its
discretion may either terminate the Trust or continue the Trust in
existence. If the Trust is then terminated, the assets of the
Trust Fund shall be immediately distributed to the Participants or
their beneficiaries in cash or in kind. If the Trust is continued,
the assets shall be distributed to the Participants or their
beneficiaries in accordance with the provisions of Article VII
above. .
Section .8.3 Amendment or Terrnination of Plan and Trust
Actreement.
(a) In General. The Employer may at any time and from
time to time amend this Plan and the "Crust Agreement established
pursuant to this Plan, or terminate this Plan and the Trust
Agreement established pursuant to this Plan. In addition, no
amendment may be made at any time which diverts the Trust Fund to
purposes other than for the exclusive benefit of the Participants
and their beneficiaries, and provided further that no amendment
shall discriminate in favor of Employees who are partners, officers
or Highly Compensated Employees. All amendments shall be in
writing.
(b) Leqal Requirements. Notwithstanding anything herein
to the contrary, however, the Plan and Trust Agreement may be
amended at any time and from time to time, zf necessary, to conform
to the provisions and requirements of the federal Internal Revenue
Code or any amendments thereto, or regulations or rulings issued
pursuant thereto, and the provisions and requirements of the
Employee Retirement Iricome Security Act of 1974, as amended, and no
such amendment shall be considered prejudicial to the interest of
any Participant or beneficiary hereunder.
(c) Vesting Schedule. No amendment shall decrease the
percentage of the interest of any Participant which shall
theretofore have become vested.
-25-
SAWM084\90485.4
ARTICLE IX
MISCELLANEOUS
Section 9.1 Transfers Between Oualified Plans.
(1) In General. The Retirement :Board is authorized to
receive and add to the interest of ziny Participant, the
Participant's vested interest in the assets; held under any other
qualified employee retirement plan or indivictual retirement account
if such transfer satisfies the requirements under law for transfers
between qualified plans or rollover contributions. In such event
the assets so received shall be fully vestec3 and shall be held in
a separate account and shall be administ:ered and distributed
pursuant to the provisions of this Plan and Trust cancerning
Employer contributions. The Retirement Boarci is also authorized at
the request of the Participant to transfer such Participant's
vested interest which has become distributa.ble under Article VII
hereof, directly to another qualified pl.an or an Individual
Retirement Account for the benefit of such Participant, provided
such transfer satisfies the requirements under law f=or, such
transfers.
(2) For Distributions Made on oriafter January 1, 1993.
Notwithstanding any provision of the plan to the contrary that
would otherwise limit a distributee's election under this Section,
a distributee may elect, at the time and in the manner prescribed
by the Retirement Board, to have any poi_tion of an eligible
rollover distribution paid directly to an el.Lgible retirement plan
specified by the distributee in a direct rol.lover.
(3) Definitions.
(a) Eliqible Rollover D.istr:ibution. An eligible
rollover distribution is any distribution of all or any portion of
the balance to the credit of the distributee, except that 'an
eligible rollover distribution does not incl.ude: any distribution
that is one of a series of substantially equa:l period 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; any
distribution to the extent such distribution is require:d under
section 401(a) (9) of the Code; and 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).
(b) Elictible Retirement Plan. An eligible retire-
ment plan is an individual retirement account: described in section
408(a) of the Code, an individual retirement annuity described in
-26-
SAW\52084\90485.4
I
0
section 408(b) of the Code, an annuity plan described in section
403(a) of the *Code, or a qualified trust described in section
401(a) of the Code, that accepts the distributee's eligible
rollover distribution. However, in the case of an eligible roll-
over distribution to the surviving spouse, an eligible retirement
plan is an individual retirement account or individual retirement
annuity.
(c) Distributee. 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 section 414 (p). of
the Code, are distributees with regard to the interest of the
spouse or former spouse.
(d) Direct.Rollover. A direct rollover is a pay-
ment by the plan to the eligible retirement plan specified by the
distributee.
p Section 9.2 Benefits.to be Provided Solely from the Trust
Fund.
All benefits payable under this Plan shall be paid or provided
for solely from the Trust Fund, and the Employer assumes no
liability or responsibility therefor.
Section 9.3 Notices from Participants to be Filed with
Retirement Board.
Whenever provision is made herein that a Participant may
exercise any option or election or designate any beneficiary, the
action of each.Participant shall be evidenced by a written notice
thereof signed by the Participant on a form, if any, furnished by
the Retirement Board for such purpose and filed with the Retirement
Board, which shall not be effective until received by the
Retirement Board.
Section 9.4 Acrent for Service of Process.
The agent for service of process for the Plan shall be the
Retirement Board unless a different agent shall be designated by
the Employer. The agent and the agent's address shall be set forth
in the Summary Plan Description distributed to the Participants.
Section 9.5 Text to Control.
The headings of Articles and Sections are included solely for
convenience of reference. If there shall be any conflict between
such headings and the text of this Plan, the text shall control.
-27-
SAW152084\90485.4
Section 9.6 Law GoverninQ and Severabilitv.
This .Plan shall be construed, regulateci and administered under
the laws of the State of Colorado. All contributions received by
the Trustee hereunder shall be deemed to have been received in that
state. In the event any provision of triis Plan shall be held
illegal or invalid for any reason, said il.legality or invalidity
shall not affect the remaining provisions he:reof. . On the contrary,
such remaining provisions shall be fu1Ty severable and this Plan
shal.l be construed and enforced as if saLid illegal or invalid
provisions had never been inserted herein.
Section 9.7 Emplover's Obligations.
The adoption and continuance of the Pl.an shall not be deemed
to constitute a contract between the Employer and any employee or
Participant, nor to be a consideration foi-, or an inducement or
condition of, the employment of any per•son. Nothing herein
contained shall be deemed to give any emplayee or Participant the
right to be retained in the employ of the Employer or to interfere with the right of the Employer to discharge any employee or
Participant at any time, nor shall it be deemed to give the
Employer the right to require the employee or_ Participant to remain
in its employ nor shall it interfere with the right of any employee
or Participant to terminate his or her employment at any time.
The Employer shall not incur any liability whatsoever to the
Trust Fund, or any Participants or their beneficiaries, or the
Trustee, or any other person for anything cione or omitted by the
Trustee or for the loss or depreciation, ir.i whole or in part, of
the Trust Fund. Section 9.8 Plan for Exclusive Ben.efit of Participants;
Reversion Prohibited. ,
'I'his Plan has been entered into for the exclusive benefit of „ the Participants and their beneficiaries. iJnder no circumstances
shall any funds contributed to or held by the Trustee hereunder at
any time revert to or be used by or enjoyed by the Employer nor
shall any such funds or assets at any time be used other than for
the exclusive benefit of the Participants oz- their beneficiaries,
subject to the provisions concerning the return of certain Employer
contributions.
=28-
SAW\.52084\90485.4
b
I1V WITNESS WHEREOF, this restated Plan has been adopted
day of , 19
TOWN OF VAIL EMPLOYEES' PENSION
PLAN
By:
EMPLOYER •
0
-29-
SAW\52084\90485.4
4 ORDINANCE N0. 29
Series of 1994
AN ORDINANCE ADOPTING A NEW TRUST AGREEMENT
PURSUANT TO TOWN OF VAIL
POLICE AND FIRE EMPLOYEES' PENSION PLAN
AND SETTING FORTH DETAILS IN REGARD THERETO.
wHEREAS, the Town of Vail has adopted a Trust Agreement
pursuant to the Town of Vail Employees' Police and Firemen's Pension Plan, the effective date of which was January l, 1983; and
WHEREAS, the Town Council wishes to adopt a new. Trust
Agreement which sets forth the details of implementing the Town's
Pension Plan.
NOW, THEREFORE, BE I•T ORDAINED BY THE TOWN COUNCIL OF THE TOWN
OF VAIL, COLORADO:
1. The Town of Vail Police and Fire Employees' Pension Plan
Trust Agreement which is attached hereto and incorporated herein by
reference is hereby approved by the Town Council of the Town of
Vail.
2. If any part, section, subsection, sentence, clause or
phrase of this Ordinance is for any reason held to be invalid, such
decision shall not affect the validity of the remaining portions of
this Ordinance; and the Town Council hereby declares it would have
passed this Ordinance, and each part, section, subsection,
sentence, clause or phrase thereof, regardless of the fact that any
one or more parts, sections, subsections, sentences, clauses or
phrases be declared invalid.
3... The Town Council hereby finds, determines and declares
that this Ordinance is necessary and proper for the health, safety
and welfare of the Town of Vail and the inhabitants thereof.
4. The repeal or the repeal and reenactment of any provision
. of the Municipal Code of the Town of Vail as provided in this
Ordinance shall not affect any riqht which has accrued, any duty
imposed, any violation that occurred prior to the effective date
hereof, any prosecution commenced, nor any other action or
proceedings as commenced under or by virtue of the provision
repealed or repealed and reenacted. The repeal of any provision
hereby shall not revive any provision or any ordinance previously
repealed or superseded unless expressly stated herein.
5. All bylaws, orders, resolutions, and ordinances, or parts
thereof, inconsistent herewith are repealed to the extent only of •
such inconsistency. This repealer shall not be construed to revise
any bylaw, order, resolution, or ordinarice, or part thereof,
heretofore repealed.
INTRODUCED, READ AND APPROVED ON FIRST READING this day
of , 1994, and a public hearing shall be held on this
Ordinance on the day of , 1994 at 7:30 P.M. in the
Council Chambers of the vail Municipal Building, Vail, Colorado.
Ordered published in full this day of ,
D
1994.
Margaret A. Osterfoss, Mayor
ATTEST:
Holly L. McCutcheon, Town Clerk
INTRODUCED, READ AND APPROVED ON Sls'COND READING AND ORDERED
PUBLISHED this day of
, 1994.
Marga:ret A. Osterfoss, Mayor
ATTEST:
Holly L. McCutcheon, Town Clerk
11f11/1994 12; 48 GORSUCH 8 KIRGIS 303 298 0215 P.04 .
,
. I . I •
aaot be the du~y of the Retirement Board to colleCt aay sum from the &wlayero
~
(W Farther, the duties of the Retirement Board shall :
include, but 'are not 13m.ited to, determiaaation of benefits and eligibility; ~uthoriza~tion of lbenefit paym~t~ az~d pa3m?ent of az~y.
' e~ens~es ir~corred in the • adflninistration of the Plan. Tlae .
Retirement 13bard may emplay such corasttltants and advisors or
allocate sutCh` of its duties to empl.ayees of Employer •as it deems
nece~~ary o~ ~~sixable gor aarryring *out its duties ur,der the Plaaae
Bachion e2 G= ' fthe Em 10 r.
Yt O1a11 be the duty of the Euployer to pay over to the
Retirement $oard fsom tf.me to time such coaatributions as may be
made by the 'Ehployer and to keep accurate boalce and records with
~o ft~ empgayees. .
~
. ~ At'i'I(°IaE 111,
POWERB AND' DUTIFS Or T-IE RETI12EPQENT BOARD IYJ x E INVESTMENT.
ADM4NX8TRA_TJOR1 AATD DIBBIIRSEMENT 4k' TY-YE TRUST FDND
' - ment w Dutiea of tbg
' The'lt~tirement Board shall have complete discretiosa witYa respect to aJ~l ~aatters eance~ang the 9.nvestment of C~ie assets -of '
tlae Ta^~as~. ~'~d subjeet to thg direation and aontrol of . the
Employera The Retirement: Board shall periodsically Confer with the
Employer con~erning tru€st iraveatment performance, program and .
pha,losophyo : .
The, Retirement Board ehall have the power to xnveat ~
and/or reinvept any and all money ar property of any clescription at
any tame heJ.d by it asad conetituting a part of the Trust Fund,
wbtkaout previotas applgcataon to, or subsequent raeificatian of, any . court, tribua'al or commiesion, or any taderal ar state gravernmental :
ageney, in adcordanqe with the followbng powersa
Subjeat to limitatiaxis set fortka a.m C.R.S. $ 31-30-1012, the Retirement Baaacd may invest in real property and all intexests
therein, in bbnds, notee, debentusea, martgagee, cdmmercial papeg,
pavings accounts and certigicatae of deposit (including accounte
a.nd cextificates in any bank which is a fiduciazy), preferred
stocks, comman stocks, or ather securities, rights, obligations or
property, real o$ personal, iaacJ:uding shares or certificates of
participatioz} isaued by regulated investment companieb or regulated
inveatment trusts, sharee or units of parti.cipatiion in common trust
funds, hedge fuxids, pooled funds in income and anvestment funds, ar •
deposa.t adininistratbera cantracte mainraineci by qua].ified insurance
companies oar 5imbbaa- financial institutione, and in life insurance
contracts. In making iravestments or reinvestment, the Retirement
snens~,a~~s2raa.a - 2 - ,
, 11i11i1994 12;48 GORSUCH & KIRGIS 303 298 0215 P.03
. • . ~
TOTia1~T OF tl~ I.
&OF.eICE AND F'IRE EAZPLOYEES ° PENSION TRUST
TfiTS AGtEE1~NT AND DECLARATION OF 'I'I2LiST effective the
dalr of; , 1994, herein restates the Trust Agreement
Pureuant.tv 'own of-Vail Pollca and Fi.re Employeea° Pension Plan
dated the 20t:h c~ay af September, 1983.
~
AtT%CI,E X
, ZSTABLISMMIYT O~ ~'RCTST
ft~tiqa 1Purgaag of Aar ement e
Thi;s firta~t Agreement is entereel intco for the purpose of
implementi.ng 'the Towra of Vaal Poliae anri Fire Employees` Pension
Plan and shall be knowra as tkae Towax of Vail Polbce and k'ire
Emp].oyees' Penaa.on Trust.. .
. ~
Al 1 sums contributed to thie TxusC by the Employex
together with ali other property and accTCUals theacefrom whiGh may
herea~fter become subject to thie Truet, ahall.constitute the trust
estate (kaero-Lna£ter refexred to as the "Trtxet Fund") .
SSsaUon 1.3 Definitioae, i I
All terms not defined in this Txwxst Agreement sha].l have.
t}ae meaaaiaa as defir~ed in the Tovata of Vaxl Police arad 1Fire
Emplc~yees' ~oneion Plan dated the day of ,1994.
Agation 1.4 RetJxement Board .
T&ae Retigemeaat 8oaxd means the Txuetees appointeci
purauant to• Arta.cle iIII hereim. .
, •
ARTICLE II
2MR.AYa ~DtITX$S OF THE RETIREMENT HOARA ,~D THE EMPI,OYER
i.
SeQ~ion 2.1 GeneraZ Duties of the R%Ga.rement Board.
Yt sha11 be the duty di the Retixemerit Board to hold
the funds frOm tame to txme received by a.t fram the Employer, to
manage, inve?t and refnveat such fundg and the income therefrom
purouant to: the provisa.ons hereinafter sst forth, without
di.stiractfon betvaeez principal and incame, arad to make payments
therefrom. The Retarement Board shall be responsible only for such
sums as shall actually bc received by it as Truetee, and it ehall
I
sMsaosaMzaa.i '
!
. 11i11/1994 12;49 GORSUCH & KIRGIS ! 303 298 0215 P.05
Board shaXl exercise the care, akill, prudence and diligence under
the circumstances then prevailing that a piudent man, aeting ira s~
like capacity' and faadmmiliar with such matters, would use in tkae
conciuct of aai enteapra.se of a like character with la.ke aime. The
Retiremexxt Board shall clivereify .the investmente of the Trust fund
so as to• minimiz~ the rieDc bf large logses, unless under the
cbrcumstaxaces, it is cleaarly nat prudent• to do so.
,5~tj4n 3.2 Aclministrative Powers and DutieQ of
Rctiroenerat ~Bt~~xc3.
;
The Retarement Board shall have the power to do any cf
the follovuinga
ta? ' To sell, exchange, canvey, trailsfer ar dfspose of,
and a1$o to graeit options wa.tta respecg ta, any property, whether .
rea1 ox personal, at aaay ta.me laeld }ay it anel ariy sale may be made
by private cantra?ct og by public auct3on, and for cash ar upan
creda.t, or partly £or. cash and partly upon cxedit, as the
Retasemeaat Board m~y deem best, and rao person dealing with the
Retirement Bbard aha11 be bound to eee to the application *of the
purcha.se moaaey or to iaaqubre into the valadity, expediency or
prope~ty of atiy euch sale or other c3isposbtaon.
(b) °ra acq.iire, hold and dispoae of any real or pereonal
property at such time, in suah manner axid upan such terme,
inaluding comtnatments to purchage avex a pexiad af one .'or more
years, a.s the ltetirement Soard may deem advisable, and to exchange
a11 or aaay patt of puGh xeal or peraoraal. property for other xeal or
pexsoaaal projperty,* upen puch terns arad condxtions as the Retirement
Board deems propexa
M' To - retain, manage, operate, repair, remove,
' parti.tiora, mortgage ox leaae for any term or terns ~of years any
real property coaastituting a part of the Trust Fund, using ather
Trust assetm for any af puch purposes if daemed advi.gable.
(d) .To compromiae, compound and sEttle any debt or
obligation due to or from them as the Retirement -Board and to
reduce •the rate of interest on, ta extend ox othex-wise modify, or
to fdreClope upon default or otherwise eaaforce or act wa.th respect
to any such obligation. .
(e) To vote, in person ar by general or limited proxy, I
aaay at , oa}cs or other secuxati.es at any time held fn the Trust Fund,
at any meeting of etockholders or secuxity halders, in respect ta any busin~~~ -which may come befoxe the meeting; ta exeraa.ae any
Opt1QIlH app~~tenant to any atdcks, bonds or athex aecurities for
the conversion thereog into othex stoc]cs, bonds or securities; i:a exescase or se11 any coaaveraion er subscriptioaa xights appuxtenant
to any etocks, boaads oz other secuzities at any time helci in Lhe •
Trust Funci, and to make any and aYl necessary paymerats- therefax; to join in, and,to approve; or to dissent From and to oppvse, any
ssW2084%9272e. 1 ' - 3 -
11i11i1994 12-50 GORSUCH 8 KIRGIS 303 298 0215 P.06 -
corporate act or praceeding, including any reoxganization, recapitalization, consolidation, merger, dissolutxcn, liquidatioa,
sale of assets or other action by or plan in respect of
corporations, the stocks or securities of whi.ch may at any time be
he].d in the Trust Fund; to deposit wzth any committee or
depesitary, pttrsuant to any plan or agreement of protection,
reargatnixation, conaolidation, aale, merger, or other xeadjustment,
any property held in 'the Txvst Fund; and to tnake payment frvm the
. Truat Fund of'any chargeg or asseasments irnposed by the tormg of
any such plan or agreament. . . (f.) To accept and hold any securitiGS or other propertiy
received by it under the provisions af any oi.` the subdivisions of
this Secti.on, whether or not the Retirement Bdard would be
authorized hereunder to invest therein, with the exceptiion of .
securitiea of the Employer.
(g) To borrow or raise monies fox the purpases of t2ae
Trust to the extent that the Retirement Soard .ghall deem desirable,
and tor any sutns so borrowed ar advanced to issue itp promissoxv
nare as Retirement Board and to secuxe repayment thereof by
pledging any part of the Trust Fuld; and no pereon loaning money to
the Retirement Board ahall be bound to see to the app].icatiion of
the money lvaned or to inquire intio the validity, expediency or
property of any auch borrowing.
(h) To enforce any right,. obligati:ion or claim in itd
discretion and in general to.pratect in any way the interests of
the Truet F'und, either before or after defau.1.t, and in case the
Retirement Board Bhall, in its discretion, consider euch action for .
the best interest of the Fund, to abstain frum the enforcement of
any righC., obligation or claim and to abandon any pxoperLy, whether ~
real or pexsonal, which at any time may be he:ld by the Reti.rement
Board. .
~
To make, execute, acknow].edge and deliver any and . all deeds, leases, assignmenta, tranafers, conveyancea and any and
all ok.her instrumente neceeeary ox appropxisite to carry out any
powers herein grantqd. . • (j) To.cause any inveatrnents £rom time to time held by
it hereunde; to be registered in, or trans feri°ed,into, itg name as Retirement Board or the narrie of its nominee or naminees, with or
without demignation of fiduciarx capacity, or to retain any 'investments unregistered or in form permitting transfeX by •
delivery, but.the books and records of the Retirement Board shall at all times ahow that all such investmentis axe part cf the Truat
Fund. . ' :
(k) To retain a portion ot the Txusti Fu.nd in cash
temparaxily awai.ting investment withouti liability for interest
thexevn and to retain in cash wa.thout liability for interest
thereon sa much of the Truet r'und as the Retir.ement Board may deem
3AW15?AS4192728.1 - 4 ^ I
I
. ~
11i11i1994 12;51 GORSUCH & KIRGIS 303 298 0215 P.07
advisable for the purpose cf ineeting conL•emplated payments undax
the Plaga o
(1) To disclose tkae trust wheaa the Retirement Board' s
fiduciargr capacaty ao geqaares.
(m) To pay the following: any amotasnt due ora any l.oan or
advance made to tYae Tnast Fund; aJ.l tasees of any natuxe 1evied, assessed or ienposed upora the Trust Ftatzd; and a].l rea.sonable
expensee arad attomeys' fees necessarily incurred by the Retirement
Board with reapect to aaay of tYte follawing matters, ta the exterat
not paicl by the Emgloyeg.
(n) To do all acts which the Retirementi Boaxd may deem
riecessary or proper and to exercise any and all the pawers of tkae
Retiremegat Board upon such terme and canclitf.ons as the Retiremeaat
Soarcl may deem to be in the best interests df the Trtxst Fund.
(o) To defend any sua,t ar legal proceedi.ngg against the
Z'rust amd tlte I2etixemerat Board may sue ox 3bring legal proceedfngs
agaa.nst axay' paxty or partiee, compromiee, aubmit to arba.txatiQn, or
settle any suit or Legal pxoceeding, claim, debt, damage or '
undertating, due or ouving from or to the Txust Fund, in the
admin~~~~~tion of the F'und, tYte Retbxement Boaxd skaa11 nat be
obligated to take aaay action which would subject them to any
eacpense 4r liabilit1r 'uraless they be first indemnified in an amount '
aaad in the mararaex sataafactory ro the Rets.rement Board or tio be
furnished writh ftands sufficaent, in the sole 5txdgement of the
Retirement Board, to cover such experaaeeo
I vestment in Poo1eC1 Fund .
Notwittastanding any other provieions of thi:s Agreement,
the Retisemexat Baard may cause any part of the money ox pXOperGy of
this Trust F'und to be commingled with Che maney or propexty of
trusts created by athere by causing such aBsets to be invested as
a part of one ar more of the Funds created by any Declaration of
Txust of any bank urider vahich funds from other retizementi, prof it-
shariaag, stook bonus vp other tx'uste wtaiCh%axe exempt grom federal
a.ncome taxat5.on urlder the znternal itevenue Code are held, and money
or pioperty of thi.a Trust Fund so added ta one dr mare of said.
. E'unds at any time aha11 be subject to all of the provisians af said
Declaratiori of Trust as amended from tbme to time, aaid paid
Declaratiora of Txust io enade a paxt of this Agreement.
ti,op 3.4 Emplolrment of Aae~ts_and Advisarg.
The Retirement Board, at the expense of trie Trust Fund,
may f rom time te time employ attarneye, accduntants, agents,
iravestmentc . adviaors or inveatment counselors and delegate to such
persoras ox orga.nizatiions administrative and cleriGal duties with
respect to the TruBt ar Trust assets witkaout liability gor any
neglect, omigsion, misconduct or default af any euCh peraon ox-
savns209A92729.1 -5 -
~
11i11/1994 12:51 GORSUCH & KIRGIS 303 298 0215 P.08
organizatian,provided that such persan or organization was
selecCed and retained with reasonablo caxe, unless the Retirement
Board would otherwise be liable in acaordEulce with Sectidn 4.5
hereof. The Retirement Board shall also hava the power to employ
aa investment manager and ta delegate to such investment manager
the power and.diecxetian to manage a].1 or part of the asseta ot the
Trugt, a.r1d the ltetirement Bdard shall be without l.iability for any
neglect, amiaeion, migconduct or default of such investment
manages, provided that such investment manager was aeleated and. •
retaiaed witih•reasonable care and prudence. ation 3.5 T ird Parties Deaiin4 Wi h Retir men
Bo.ard•
Thi.rd partias dealirig with the 1ietirement Board phall not
be requixed to make any i.nqui.ry as to whether or not the Retireme~u~
Board has aomplied with the requirementa oi! this P~greement,
ehall be heLd harmless in relying upon th.e cestxficate of the
Ret irement Board that it has authoritiy ta take any propoeed act i.on . ;
;eYtion 3.6 - PoWe?'a and Dutiee ot REtxre ent Board a~
i b e t s Fund.
The Retirement Board ehall.make payment firam the Trust
Fund ta such pexeons, a.n euch manner, at siich times and in such
amounta as. it deems necessaxy in accord.ance with the P1an and Trust
Agreement.`
Serora nn 3.7 No Alien tion of B =ff• The Truet ehall not in any mannex be liable f or, or•
subject to, .the debta or 13abilities of any Participant, retired
Participant, benefi.aiary or contingent beneficiary•, No right or
benef it und,ex the Plan shall be subjeCti at anY time or ~edg~~
manner - ~.o alien~ation, sa1e, transfer, asaignment, p kind,
enCUtnbrance, charge, garnishment, execution ox le'vy of any
eiCher voluntary or inv'oluntary, pzior to ac-tualJ:y being received
by the persan enCitled to the benefit under the ~erms °lain
If Che terma of Ghis Section are contrary•t~~ the law governin9
a paxticul.ax cix'cumatance, any auch payment. s~ h la e excmpt from
such law to the maximum extent per~nitted by
ARTICL --LY
I IST TIVE POWBR T)U'TI S .
General ie a d Pow rs o£
m' i r j .
The Retirement I3oard shall hie charged with the
adminiptxation of this~he a administratiion~nd interp etiation and
questions arising. in
-6-
SA~4~1~~H. i
, 11i11i1994 12:52 GORSUCH &.KIRGIS ' 303 298 0215 P.09
. I
applicatian of the Plan aaad Trust Agreement, incl'uding all
qu~stions relatiaag to the eligibility, veptixag and distgibuseion.
The. Retiremcnt Saard may fxom time to. time establieh
• reasonable procedures, rulea and regulations fos the administratian
Af the P].an and Ta-uet as it may deem desarable and ouch pracedures,
m1es, and xegubatiogas shall be binding ora a11 employees,
Participaaats, fermer empl.oyees aaad beneficiara.ee. All pracedures,
rulea, regulations and reports shall be unifoicmly ancl consistently
applied td . all Partiicipants arad beneficiaries an similax
carcumatances a
S2=12n4~2 P,11QCation of ~'iduciarv Res r~si i1it,y.
The Retirement Board may, but shall raot be required to,
allacate the fiducaary dutaee and responsaba.lities under the Plan
and Trust betvaeen and among the named and acting Plan fiduciari.es, .
Bubject to the pa'oviabone of Part 4 0f Subtitle B of Ta,tle I o$
ERasA. 3ggtian 4 3 Recards and Renorta. ~
The ltetarement Board Blnall keep ar cause to be kept all • suph books• of accoLbnt, recozds and ather data as may be neGessary
or advisabLe in a.ts judgmant fox the aciministrataon a¢ thxs Plan
and 7Crust, to properly reflect the affairs thereof, to determine .
the. amount o£. vested and/or forfeitable intereste ot the respective
1Paseticipanta iaa the Trast Fund, and the amount of all benefits
hereunder. ps a part thereaf, it sliall mai.ntain or cause ta be . maintained separate accaunts for Paxticapants pravided for in
Artic1e V. of tik1e Plan. The Reta.remer?t Board skaLll 21so prepare arad
f ile, or aauee to be prepared and f i1.ed, all faderal and atate
reports and returns which may be required by law and shall provide
to the Partz:cipaaatis arad their beneficiazies a].1 noticee, reports
and descri.ptions that may be x'equired by law oz regulation.
gnct on 4.4 Be efi Paymenrs. The Retixement Boax-d skaa11 pay, all benefits from the
Ta-ust Pund pursuanCto the provisaons of the Plan.
gs,ctien 4,5 ARBliaatio and F rma far B~ne its _ .
The Retizement Board rnay require a Partiaipant to
cocnplete and file witka the Retirement Bdard an application fox' a
beaae¢it and all ather fdrms approved by the Retirement Board and tQ
furnish all.perti.nent informatgon requested bY the Employer. The
Reta:rement BQard may rely upon all such i.nformation sa furniehed
it, iaaaludxng rhe Participanti's currenti mabling address. Sectio 4 6-~ Claima Procedureg.
sAwnszosa192nx.1
. -7-
11i11i1994 12:53 GORSUCH 8 KIRGIS 303 298 0215 P.10
I-
(
•
i
Upan a Participant's terminatiori of serviae with the ~
Employer for' any reasan,the Partica.pant Or the Participant's
benefiCiary will ba advised by the Retirement Bcard of his or her
rights to benefitm under the Plan. If at arty time the Participant :
or the Participant`s benefiaiary feels tihat he or she is entitled
ta benefita,• he or ahe may make a claim for benefita by writing a
• letter to the ltetirement Board requesring the benefits and etating
vahy he or she. fee].e he or she xp entitled to them.
I.f the cl.aim for benefits undE.X the Plan of any
Partf.aipant or benefiaiary has been denied, the Retirernenti Board
shall provide adequate notice, in writin.g, ta such Participant or
beneficiary witihin ninety (90) days after the claim is filed. Sueh
notice shal.1 st torth the specif ic xeaeans for such denial, ,
epecific reference ta pertinent Plaa proviaians on which the deaial
is basEd, a description of any additional rna.terial or information
necegeary tOr the cl.aimant to perfect his o,r her claime, i£ any,
and an explanaCion ot why auch materia~. or information is
necessary, and appropriate information as to the steps to be taken
if the Parti.cipanC or beneficiary wiehes to submit his or her claim
for review. If a notice of the denial of a<:laim is not furnished
within ninety (94) days, the cl.airn ehall be deemed to be denied and
the claimant shall be permitted to submit his or her claim for
review at that time. Each claim submittecl £ar xeview sha11 be
entiitYed to a full and Eair review by the Retirement Boarti (or by
a person destgnatied by the Retixemant Board) of a11 the facts and
cirGUmetanCes? and the pzeliminary decision dFnying such claim. The
Participant or beneticiary ma}? xequest duch arevi.ew upon wra.ttert
app].icati.on, he or ahe may review pextinent dloeuments and he or she
may submit isaues and comments in writing. Ax1y sueh xeview muat be
requested within seventy-xive (75) days af the arigi.nal claim
denial, and a deci.sion on such claim ehall be ntade not later than
sixty (60) days after the Plan's xeceipt of such request. The
decision on review ahall be in wxiting and shall include tihe
specifi.c reasona for the decision, written :in a manner calculatied
to be underetood by the claimant as well as speCific refesences'to
the pertinant Plari provisions on which the i3eciaion i.d based.
Qp.ri- i nTt 4.7 - AdV1 C ollll 1.
The Retirement Board may cansult witb legal- Caunsel, who
may be counaeY for the Employar, or a lega], couneel hixed by the
Retirement. BOard, with respect tb the meaning or construction of
this Trust Agreement or the Retizement Board"s obligation nr dutigs
hereundeX, and shall be fully protected fr.om any respvnsibilitiy faith
witih respect t4 any action taken or omi.ttie.d r~vided e c h counsel
p u r s uant to the advice of auch legal courasel.,, p
was selected and retained with reaeonable care an d p r u d e n c e.
Sgcr io 4 st andard of Care .
The Itetirement Baard shall discharge its duties under
this Agreement and the Plan for the exclusiire purpase of providing
snMszoBA9:722. i - S -
, 11i11i1994 12:53 GORSUCH & KIRGIS 303 298 0215 P.11
benefits to Partiaipants and their beneficiaries and defxayang .
areasonaldle eXpenses of administexing t-he Plara with the casce, eki3.l,
pruclence aaad diligence under the circumstiances tkaera prerraa.ling that
a prudent mara acCing in a la.ke capacity and familiar with such
mattaxs wou].d.iase in a conduct of an anteaprise of a 1a.ke charaeter
and with l.ike: aitaso
S~c~ioxi~~~jaiability far Breach. ag F'iduci.a~r r. .
Afiduca.axy stiall raot be li.able for the bxeach of
fiduciaxy responsi]aglity of anotiher fiduciary of the Plan or Trust
unlees: . .
(a) %ie partici.patea knowingly in, or knowingly
umdertakea ta coaaceal, an act ar omission at sucta other faduciary,
, knawing suCh act or omission is a breacka; or
(b) He haa enabled auch other fi.duci.axy to commit a breach by his fai].rare to discharge his dutaes to the P1an and Trust ,
sobel.y in tlae; interest of the Participants and their benefici.aries;
or •
(c) He fails to make reasonable afforts undex the egrctamstances to semedy a bseach af auch other fiduciary-of rahich
he has knowledge e
~CLE iT
TUM EXPENSEa_MD COMP IdSA°TLO AF 12 I NT SO D geot,ion 5.1 F.dmi.nis rati n lE enses and ComAensation
f ~he R t ' mr .
The reasonable eacpensea incurred 1y the Retirement BoaXd
in or as a re~cult ot the performance ot its duties heseunder,
including ~easonable fess aaad expenses for agency and legal
sexviCes rendexed to the Retirement Board, feee of any inv'estment
managex ox' inrrestmentt advisor for servbces to the Trust, insurance
premiums and such cdmpendation to the Retigement Board as may be
agreed upon. from tiene to time between the Employer and the
Retirement Board slaall be ckaargeable against, and dEductibl.e From
the Tru~t Fund, unlesa and until they axe paid by the Empl.oyer.
ATotwithstanding the foregoing, no individuab trugtee who is also a
full-time employee of the Employer eha].1 rgce9.v'e compenoati.Qn for
his services on the Retirement Board.
~t~on ~ - Taxes .
p,ny taxes which the Retirement Board is xee1uired ta pay,
incl.uding rea1 and pezsonal praperty Laxes, income taxes, transfer
taxes anci othex taxes vf any kind whatsaever that may undex any
eacisting or future laws be assesaed against ax levied upon or in
respect to the Trust Fund or its aasets, or any interest therein,
snwN32oxA9272e.1 - 9 -
11i11i1994 12-54 GORSUCH & KIRGIS 3E3 298 0215 P.12 ,
, .
shall be chargoable again5t and deductiible :Erom the Trust Fund. I
The word "tdxeS" in thie section shall. be deemed te include any .
. interest dr ponaltiee that may be levied dr imposed in respect to
any taxee. Any exAanse incurred by the Retirement 8oard in
contesting tbLe validity of such taxes shal]_ also be chargeable
againet and deductible tram lhe Txust Fund.
8 io E uca ional Advanc men .
it Ys deemed reasanable and prudent for Retirement Board
to obtain educational advancement and expexi:ise in all areas of •
trueti fupd adminietration in order to pxovide and maintaa.n the beet
possible bonefitie to the trust fund partiCipants and their .
benef iciariets . In order to aGhieve such, edLtcational advancement
and expertise, Retirement Board members may attend annual and/or
regional meetinga and/ar seminaXs sponsored by the Internatianal
Foundation of Employee Benefit Plans and/or sponsored by other .
xnstitutions of higher learning. The Retixe:ment Board attending
such meeting Or meetingd may be rei.mbursed from the Trust Fund for
all reasonable and.necessary expenses aGtual,ly incurred by them,
including but nat limited to registXation fees, rneals, ladg1ng and
tx'avel expense; provided, hawevar, that x•eimbursament of the
Retirement BoaXd member fox such expense sha1l first have been
authorized by resolution of the RetiremAnt Board adopted at any
regular or s ecial meeting of the Retixement Board prior ~co the
incurrence a~ any such expenae. AiTIcLE vi
ACCOUNTS 0F THE RETIREMENT P(ARD, $ection 6.1 Accounts f the j~ tireme t Board.
The Retirementi Board aha11 maintain accurate and detailed
records and accounts of all investments, xec-eipte, digburaements
and other tXaneactions oP the Trust. All accountis, boaks and
records relating. to such transactiona shi31I be open at all
reasonable times to inspection and audit kqy any person or peraons
deeignated by the Employer.
Saction 6.2 Valu tiion ReAOrts.
The Retirement Board shall aubmit ticD the auditiore far the
Employer and such other persona as it may designate, such
valuations., reports or other information as such persons meLy reasonably nequire. • Sectiion 6.3 - periodic Reports. '
The Retirement Board shall file with the Emplayer, as
soon as pos8ible aftier the close of each fi.scal year, a writLen
accounting setting torth a description of aa,l securities aiid other
sawksZsaX92728. G -10 -
, 11t11/1994 12; 55 GORSUCH & KIRGIS~' 303 298 0215 P.13
9
praperty purChased and sold, and all receipts, disbuxsements and
other transactaons e€fected by the Trupt duxing euch peraod. Such
accaunting sh~ll also bast all eash, pecuritaes and other pacoperty
held in the Tr`ast Fuaad at the end af such perzod at tkaear adjusted
book va1u~ a,nd at thea.r ma,rket value. .
AitTT_CLE t1YY
99BT9MI9]N, $.RMOyAL ArTD SIICCBSSIOIV OF
TIZTJSTEE AND ESTABLI!SHMENT OF ADDTTIDNAL 'PFti75TS
Section 7.1 Resiari tiora o£ Trustee.
Any Z'rustee, ox any pt1CC4so4x' Truskee or Trustees, may
xeeign hf.s ax its dutaes as Trustee hereunder at any time by filing
his or ite wcitten resigriation with the Trust and the Emplayez. No
such resignation s2a1l take effect until sixty days from the date
a£ ita delivery to the Trust and the Employer, provicied, howevex,
that i£ a successor `Prustee skaa11 have beeaa appointed, and shall
have accepted, priox to the expixation of oaid perioci or if a Co-
Txustee ie then act3ng, the resignatiQn sha11 be effective
. immediatel.y.
.
~ .
~.~cC ion Removal of "Cxue P , ~
AnZr Trtastee, or any auccessox Trustee or Trustees, may be '
remorred by the Employer, by aetion of the Town Couaacil, at an.y tirne
upon the givimg af sixty days' notiGe irx writirag to the Ta^ustee or
Trastees to bei xemove,d, such remaval shall be ef fected by
delivering to the Trustee to be removed written notace of ats
xemova9., eaeecuted by the Employer aatd gaving nota.ce to the Trustee
of the appointment of, and acceptaaace by, a successor Trustee in
the maaiaaer hereinafter set forth.
SQction 7.3 Automatic Successa.on of Trustees.
The person holdi.rag each oE the fvllowing offices wi.th the
Employer ahhall be a Trustee:
(a) Town'P9anager; . . .
(b) ' Towra Attorney; and
(c) P'inance Director.
The persone who occupy euch officss are iraita.a1 Truatees. x;E any
peraQn shall ceaee to-ace in one of such capacitxes, that person
shall be deemed ta have xesigned as a Trustee as of the d.ate the
Person ceaees to aat in auch capacity. The per"sora wtao shall be
appoisated in such pereon's pXace shall imm~:cliate~.y become a
Tx~taetee. ~
snwV2084142728. 1
-11-
11i11i1994 12~55 GORSUCH 8 KIRGIS 303 298 0215 P.14 .
. ~In addition,, one. Trustes shall be elected by the '
Faxticipants- bf the Police Department and one Trustee ehall be elected by the Participants of the Fire DepaLrtment. The L-erm ef
such Trustees shd11 be determined by the Retizement Board, provided.
that in the event such a trustee shall termi.nate employment with.
the department from which he was elected, such person shall
automatically*cease to be a Truptee as of the 8atie of termination
of employment,
section 7.4 Agp~~z~~ment of Suacesaor.... Additio=1
.Trustee. The' appoiatment of a guccegeor Truetee shall be
accomplished by the delivery to the resignincf or removed Trustee,
as the caee may be, of an.inatrument in writing, executed by the
Employer, appointing such successor Trustee aLnd by the acceptance
in writing of the appQintment ao succeasqr Txuatee, executed by the
succe8sor or guceessQrs so appointed. In the case of the
resignation of t$e Txuptee, the appaa.ntmenit of the successor
Tzvetee sha11 take effect upon delivery of tihe noticc: of
appointment and acceptance. In the aase af the removal of a
Trustee, it ahal.l take effect exther upan the de].ivery of the
notice of apgointment and acceptance, or the expiration of the
sixty-day period prpvided in Section 7.2, at the election af the
Trustee being removed. An additional trustee may be appointed by
deiivery of aii instrument in writing to the trien acting truatee or
truratees 91gned by the Employer and containing the written
acceptance of'suoh additional Trustee. ,
Section 7.5.-- Successar Additional Trustee.
All'of the provisions set farth in this Agreement with
reapect ta the TrugCee'shall relate to each succesaor or additional
Trustee so arppointed, with the same totce and effect ae if such
successor Truetee had oxigi.nally been designated herein as Trustee.
A succeasor or additiana7. Tru.stee may be an.inciividual or a bank or
trust campany organized under the law ta administex 'trustri and
maintaining and operating a fu11-time trust department. .
Se.ction 7.6 Procedure Unon hppaintment of Successox
Trugtiee. .
' Upon the eftective date af appointrnent of a auccessor
Trustee, the remaved or. resigning Trustee Eihall txansfer and
de].iver his or their interest in the Trust Fund to such gucaepsor
Txustee, after resaxvi.ng auch reasonable amount as they may deem
necessary to provide for any aums chargeable agai.nst the Trust Fund
or fas which the Trust Fund may be liable, or ro which the remaved.
or resigna.ng truetee may be entitled by way of feee and e):penges.
The receipt of the successox Txustee and t'.he appraval of the
Employer of the final accountiing of tihe re:moved or resigning
Trustee shall be a full and compJ.ete di.scharge of such removed or
resigning TrtiBtee. No successor or additional. Ti-ustee yha] havP
SAWlSZ08C19272$,1 -12 ^ .
a 11i11i1994 12;56 GORSUCH & KIRGIS 303 298 0215 P.15
v .
'
I
any liabila.ty wYaatsoevex for the acts or omissions of any prior :
~
Trtaatee.
$optaoaa 7,7 - Additianal Trugts. '
The Employer may, in its da.scgetion: establa.sh an ' .
ac3ditional trust or trustts with ottaex orgaaaazations or individuals as trustee, and transfer aportioa of the Tg-ust assets ar the
EmployeY'' s Cohtributions, or bath, to such truet or trusts for
invesrment axad maxiagement. zf thfs fs done, the Truatee shaiL be natified in wxiting ari.cl the Trustee shall have absolutely no
duties, respa*si.bilataes or obligations wxth respect to such ather trust or traats ra~ the fund.g trangferrecl thereta.
Sectiara 7.8 Maioritv Contr4l.
Aaay, actaoaa a~equared' to be taken hereunder, ox which may
be takera hereunder, tnay be taken upon the wratteaa agreement or
cQnsent of a majority of the Trusrees, ff more than one Trustee is
tkaen acting. No 'a'rustee sha11 be liable for any aCtian so taken,
without Yais cdaaseaat, if he advises the othex Trustees; in writing,of kais objectbon to' suah action witbin traenty-fou-r hours of his
being advised of such action, provided that each Trustee shall use
xeaaoaaable Caa'e to pgevent a Co-Trustee frotn committa.ng a breach of '
ficluciaxy xespansibility. .
' ARTICLE VIIY '
ER.NlI1VATTON
Sgction 8.1 Event Not Neceeeitatina Tsrmir?atian of
~~u~ • . ,
The*'Psuat eetabliahed hereunder slaal1 texmi.nate upon the
happening af A.n.y ane of the following everats
(a) Termination by the Employer by action of khe Town .
Council, pxovided sixty (60) days prior. written notice of such termirtation'shal1 have been girren Co the Retirement Baard. (b) The disaolution, rnergex, consalidation ox ~
reorganizatiqn of the Employer; provided, however, that a.n the case
ot such dissolution, merger, consolidatian or reorganization, the
successor to the Employer may agree in writing to coaatinue the
Trust in effePto
Seetion 8_2 Settlement of Accounts Upon Ter ination.
Upon terminatiion of the Trust, the Retirement Baard shall
have.the right to a settlement of its accounts and such settlement
shall be had, at the aption o£ the Retirement Board, either by
proceedings.'in a court of competent jurisdiction or by agreement •
betweera the Retxxement Board and the F:mp],vyere . '
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Sectian 8.3 - Disposition of Trust Assets Upon I
Tertninat iat7 . . !
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ppon completion of the eettlement fl-f the aacounts af the
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Retirementi Baard in acaordance with Section 8.2, the Retirement ~
Board shall A1locate and dispose of the asse:ts then xemaining in ~
the Trust Fund, after provision for any expe,nees af the Plan and '
Truet Fund gropex'ly Chargeable Cheretd, pursuant tothe pxovisions
of the 81an. ,
SggCion 8.4 Discharge of Retirement Board. .
Upon settlement of its acaaunts anc3 distribution of a7.1 of the aseets of the Trust Fund, the Retirement Board shali . thereupon be discbaxged from any further ae~countabiI.~.ty far the
''zust Furad a,~.d iti shall be under no further duty, obligation or
responsi.bi].ity for the disposition of the Trust Fund.
ARTICLE IX '
AMNDMENT OR TBRMINATION OF TRIIST AGREEME
The Employer pha11 have the right at any time and from '
time to tiime by action of the Town Council wiClz the wri'tten consent '
. of the RetixeMent Board to amend this Tzust A,greement in whole or .
in part by an instrument in wTiting executed b;y it and delivered to
the Retirement Hoard, provided that purauant to the requirements of C.R.S. g 31-30-621, any amendment or act ot terinination of the P1an
or Trust mustbe approved by a vote of at least sixtiy^Ei.ve percent
(65%) of th~ total votes cast by alI s~rarn police otfice~rs and •
firetighters actively empJ.oyed by the Emplc>yer and all former
Employeeo wha are entitled to a beneEit f:rom the P1an. In
addition, no such amendment shall cause any paLxti o£- the Trust Fund to be used for, or diverted to, purposes other than the exclusive benefit af Participants, retired Partic:ipants and tiheir '
beneficiariee, except for the return of zesid-ual amounts pxovided '
in Section 8.5 of the Plan. Any amendment shall become ef fective upon the date therein stated but ehaYl not be binding upan the '
Retirement Board until delivery of the written amendmenti to the Retirement Board and the end4reement thereon` of the Retirement
Board's wriCttn conaent. ,
ARTICLE X :
ENP'ORCEMENT Qg TR.IIST AGkZEENiENT
The Employer shall have authority to enforce thie Trust
Agreement on behalf of any and all persona having or claiming.any
interest in the Trusti Fund ox under this Trust Agreement or the
Plan. In any 'action ox proceeding atfecting the Trust Fund or any '
propex'ty congtituting apart thereof, or the administration of the
Trusti establighed hereunder, the Fmployer and the Retirement soard
shall be the pnly necessary parties; and no PgtrL' icipants, retired •
sAVA52M4192728.1 -14 - .
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Partacipants or their bensgiciaries, or any other peraon havxng or . claiming to hiive an antegest in the Trust Fund or txxLder the Plan
shmll be entiEled to any notice ar process, and asiy judgment that . .
may be enteged in euch action or praceeding shall be binding and
conclusive on a11 persons having or claaming to have an interest in
the Truet P'und undeg the P2.aaa e ARTICLE XI
LAW GOiT6;RNING ..RLM .
'Ph.~s Truat Agreement and the Trust hexeby areated shal.l
be canetrued,: seegulated and adminietered under the laws of the
$tate of Cal.arado, - and the Retirement Board sha11 be liable to
account only in tte courts of khat state. All contributions
aeceived by t2ae Retirement Aoard hereunder sha11 be deemed to have been received:in that state.
ARTICLB XTI
. Tk2[7ST FOR EXCLUSTVE 99NEVIT OF PARTICIP S The Police and Fire Employeee' Perasi.on P1an and thie
. Trust Agreement have been entered iaato fos the exalusive benef it of the Fartieipants and theiac benefa.ciariee. TJnder no circumstances
sha7.1 any fuhds contributed to or held by the Retirement Board
hereunder at i~ny time revert to or be used by ox enjoyed by the
lkmp3.oyer no~ Oha11 any such tunde or assets at any time be uaed
otkaer than fo~ the exclusi.ve benafit of. the Participants or their
benef iciarien; except as provided in Sectgon 8.5 of the Pian.
P,Ft'I`I CLlE }C I Y T
FtETIREMEDI'r BOARD LZFBIIaITY
S~*.etion 13.? pro1-a?r_t.ign gi thg Retix'ement Baard.
The ltetirement Board shall not incur any liability by
reagon of taking any action indicated by,, this ingtrument ta be
within the a~ppe ~f the authority of the i.nvestment Managear
appointed *by the Retirement Board in accordance with any wxitten
. iaastrument purporting to be aigned by such person or persons
autkiarized to.sigm fox the Investment Manager, os in reliance upon
a cez'tified capy af a resalution of the Retirement Board, any of
which the Ret,A-r.ement Board, in goad faith, bel.ieves ta be genuine.
The ltetiremenL Soard may cansult with counsel, who may be counsel
for tkae Employer, in respect to any af its duti.es or obligations hereunder and shall be fully pratected in aCting ar reEraining from
acting in aceprdanae with the advice of such couxasel.
TYae. 1Retxxement Board shal7. incur no liaba.J.ity for aray
ldae to or de~reciation in value af the Trust F'und ar for any acti
dorae or oma.tted to be done in 4:he administration of the Tx'ust, sawWoMvzrza.i -15 -
11111i1994 12:58 GORSUCH & KIRGIS 31J3 298 0215 P:18 ~
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except far bxeach o£ its fxduci.axy duty as set forth in thia
instrument. The Retirementi Board shall be, indernnified and saved ~
harmlese by the Employer fram and agafnst aazy and all liability '
arising fxom breaah of its fiduciary duty as aforesaid, inc].uding :
a11 expenses reaeonably incurred in its defense, i.n case. tihe Employer fai3.s tia provide auch defense. •
Seation 13.2 IndemniEication.
The Employer shall indemnify and hold harmless the '
Retiremezxt Boaxd fxorn any and all claimg, losges, damages, expensee •
(ina].udi.ng Gaurisel feed approved by the Retirement Board), and
liabi].ities (xna].uding any amaunts paid in settlement with tha
Retirement aoard' eapproval) arising from any act. or 'omiasion. of
the Retirement: Board, except when thc same is judicia].ly determined
ta be due to the gross negligence or wi11fu7, misCOAdU.Ct of such .
Retirement Board:
Sectian 13.3 Bondina and Insurance. !
. The Retiremant Baazd, any Investmerit Manager appointed '
pux'puant Ca 8ectxon 3.4, and anyone acting aa a Fiduciary shall be '
bonded for tihe minimum amount required unless the Emplayer shal], .
direct that a bond in a larger amount be maintained. The
Retirement Board may obtain Erroria and Omissior?s Insurance for such
amount as they deem advisable to protect the Trust Fund. Such .
ineurance and'bond premiums and tees may be paid as an expense df
the Tx'ust pursuant to Section B.I.
. . !
TN WTTNESS WHER$OF, the parties heret:o have executed this
instrument the day and year first above writtE.n.
TOWN OF VAIL
$y: I
, Mayai i
"EMPLOYER"
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' TOLVN OF iYl#II, P4LYCE AYVD F%ltE
EN1pL07CEES ° PEPUS ION TRIIST
. "RETIREMENT BOARD"
STATE 0F {=QLORAD0. )
COTJkm -OF EMLE ~ s~ • .
. )
ThIB saregoisg iri$trwgment was ackaaowledged laetore me tYais
day ef 1994, .
of the Ta~ +~g 1, an EmployesC~ e~s. Mayox
• . Watn@~o mY hanc1 and official seal o .
My commiss3.on expires :
{ S B A. ) No~ary Publa.c
, Faddres s : ,
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11/11i1994 12:59 GORSUCH & KIRGIS 303 298 0215 P.20 ;
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smATE aF cor;oRAwo ~
J ss.
covNTt oP EAaLE ~
. The foregoing instrument was ackri,owledged before me this
day of . 1994, by f
, as
the Retireme,tit Board. ~ .
Witness my hand'and offi.cial sea]l.
. My commission expa.res :
Natary Public
S E A L
)
Addregs: . , .
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~ ORDINANCE N0. 30
Series of 1994
" AN ORDINANCE ADOPTING A NEW TRUST AGREEMENT
PURSUANT TO TOWN OF VAIL EMPLOYEES' PENSION PLAN
AND SETTING FORTH DETAILS TN REGARD THERETO.
WI-iEREAS, the Town of Vail has adopted a Trust Agreement
pursuant to the Town of Vail Employees' Pension Plan, the effective
date of which was January 1, 1983; and
wHEREAS, the Town Council wishes to adopt a new Trust
Agreement which sets forth the details of implementing the Town's
Pension Plan.
NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF,THE TOWN
OF VAIL, COLORADO:
1. The Town of Vail Employees' Pension Plan Trust Agreement
which is attached hereto and incorporated herein by reference is
hereby approved by the Town Council of the Town of Vail.
2. If any part, section, subsection, sentence, clause or
phrase of this Ordinance is for any reason held to be invalid, such
decision shall not affect the validity of the remaining portions of
this Ordinance; and the Town Council hereby declares it would have
passed this Ordinance, and each part, section, subsection,
sentence, clause or phrase thereof, regardless of the fact that any
one or more parts, sections,, subsections, sentences, clauses or
phrases be declared invalid.
3. The Town Council hereby finds, determines and declares
that this Ordinance is necessary and proper for the health, safety
• and welfare of the Town of Vail and the inhabitants thereof.
4. The repeal or the repeal and reenactment of any provision
of the Municipal Code of the Town of Vail as provided in this
• Ordinance shall not affect any right which has accrued, any duty
imposed, any violation that occ,urred prior to the effective date
hereof, any prosecution commenced, nor any other action or
proceedings as commenced under or by virtue of the provision
repealed or repealed and reenacted. The repeal of any provision
hereby shall not revive any provision or any ordinance previously
repealed or superseded unless expressly stated herein.
5. All bylaws, orders, resolutions, and ordinances, or parts
thereof, inconsistent herewith are repealed to the extent only of
such inconsistency. This repealer shall not be construed to revise
any bylaw, order, resolution, or ordinance, or part thereof,
heretofore repealed. .
INTRODUCED, READ AND APPROVED ON FIRST READING this day
of , 1994, and a public hearinq shall be held on this
Ordinance on the day of , 1994 at 7:30 P.M..in the
Council Chambers of the Vail Municipal Building, Vail, Colorado.
Ordered published in full this day of
1994. ~
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' Margaret A. Osterfoss, Mayor ,
ATTEST:
Holly L: McCutcheon, Town Clerk
INTRODUCED, READ AND APPROVED ON SECOND READING.AND ORDERED
PUBLISHED th.is day of
, 1994.
Margaret A. Osterfoss, Mayor
ATTEST: Holly L. McCutcheon, Town Clerk
_ 11i11i1994 13;00 GORSUCH & KIRGIS 303 298 0215 P.21
TowN or vAzL .
EMPLMES ° PENS IO1V1 TRUST
THgS AGItEEPtlERFP APTI7 DECLARATION OP' TRUST effective the
daIP of , 1994, hexein restates the Trust Agkeement
Pursuant to Town of Vail Employees' Pensian Plan datecl the 20th day
of 9eptembeg, 1983, aa amended the 7tla day of August,, 1994.
ARTI
FiSTABI,ISHMENT OF T Rt7S1
Secta.ata 1 1 PuMoge of Aerreement .
Thia Trust Agreemerat a.s entered into for the purpose of
bmplemerating the T0wn of Vail Employees' Pension P1an and sha11 be
kaaown aB the Town of Vail Employees' Pension Trust.
ftction 1.2 - - Trust Fund.
A1'b sums contributed to thip Trust by the Employer
togefther wit-ka. all othex property and accrraals 'cherefrom wliich may
hereafter become suJbj ect to this Trust, shall constitu~e the txuet
estate (hereirxa€ter referretl to as the "Ta'ust Fund"
- - Def ini_iong ,
All tercns not defined in this Trust Agreement shall have the meanirag ae detined in the Tourn of Vai.l Employeee, Pension plara
dated the c'iay 9f , 1994.
82Ct AY). 14 --RAtlrem=f Rnarri,
Z°he Retiremeaat Soard means the Truprees mppointed
purauant to Arricle t1IY herein.
ARTICLE II GENERAI; DIITTES OF THE RETIREMEIVT BOARD AND THE EWdPLOYER
8ection 2.1 General Duties of the Retirement 13oar-d.
(a) Yt skaall be the duty of the Retizement Board to kaold
the funds. trom time to time received by it from the Empl.oyex, to
manage, inrrest and reinvest auch funds ancl the iracome tbexefxom
pursuant to the pravisians hereinafter set forth, witkaotat
distinctian between principal and income, and to make paymente
therefrom. The Retirement Board shall ba responaible oniy for such
sucng as eha1;1 act,ually be received by iL' aS Tr'ustee, and it shall
not be the dUty ot the Retirement Baard to collec:t any sum from the
Emplpyer. :
SA W15208C1913d6.3
11i11i1994 13: 01 GORSUCH & KIRGIS 303 298 0215 P.22
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(b) Furthex, the duties of the Retirement soard shall
include, buti are not limited to, determiriaeian of benefits and
. eliga,bility, authoriaation of benefit payments and payment of any
expenses incurred in the administratian cf the Plan. The
Retirement Baard may employ such congult:antis and advisora vr
a11ocatE auch of its dutiea to employees of Employer as it deems
necessary ar desirable far casxying out its dutiss undsr the Plan.
SeCCi.on 2.2 General Duties ot the Employer.
It ahall be the dury of the Employer to pay over to the
Itetirement Board from time to time such contributions as may be
made by the Emplayer and to keep accurate lD00}CS and records with
respeGt to its employees.
ARTTCT,F TII
POWERS AND DLTTIES OF THE RETIREMENT 13 t3ARL1 IN THE INVESTMENT,
ADMINISTRATTON AND DTSBURSENlENT OF :L'HE TRUST FUND.
Sectian_.~.1 Tnvestment Powexa .anDu~iea of tha
RetireMent Board. .
The Rstirement Board sha1.1 have caimplete discxetion with
xeppect to a'll mattere concez-xling the invest:ment of the' assets- of
the Trust Fund subject to the directi.an and contirol of the
Employer. The.Retirement Board ehall period.ically confer with the
Emplayex conGerning truet investment performance, program and
philosophy.
The Reti.rement Baaxd eha11 have the power to invest
and/or reinv+eat any and a7.1 money or property of any descriptian ati
any time held by it and consta.tuting a paY-t of the mruet Fund,
withquti previous app].icatian to, or subsequent ratification of, any
caurt, tribulnal or cdmmi$sion, or any federal or state gavex-nmental
agency, in Accordance with the following pokiers:
Tha Retirament Board may invest in real praperty and all
interests therein,. in bonds, notes, debantures, mortgages,
commercial paper, savings accounte and cartificates of deposit
(including accaunts and certificaties in any' bank which is a -
fiduciaxy), greferred stocks, common stocks, or other securitieu,
rights, obligations or property, reaX or persanal, includa.ng ahareg
or certificates of participatian isgued by regulated investment
companies oz reguYated inveetment trusts, ahares or units af
participation in cammon trust funds, hedge funds, poaled funds in
. income and ~nvestment tunds, or depositi adminiatration contracts
maintained -by qualified ineurance compana.es or similar financial
institutxvn.d, dnd in life insurance contracts. Yn making invegtmentis or reinvestment, the Retirement Roard shall exexcise
the care, skill,.grudence and diligence undor L•he cixcumatances
then prevaiTing that a prudent man, acting in a like capacity and
Familiar wi'th such mattere, would use in the aonduct of an
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enterprise qf a like character with J.ike aims. The Retirement
Bcard shalb daversify the investments of the.Txust fund so as to
minimize the' risk of barge 1osses, unless under the clrCUmstanCeS,
bt is clearly nat prtadent to do so. .
Se9tian J,a Administrative Powers and Duties of
RAGImmont-, 14oasd .
The Retixement Board shall have the power to do any of
the f ollowia~g :
(a) Ta sel1, exckaauage, convay, transfer or dispose af,
and also te gragat optiaaas wbth reapect to, aany praperty, whether .
real or persona7., at any t%me helc1 by xt and any pale may be made
by private contxact or by public ataatioaa, and far cash or upon
credit., or partly for cash -and partly upon credit, as the
Retiremerat Boaxd may deem beat, and no pergon dealing with ttae
itetiremerat Board shall be bvund to aee to the applicatboaa of the
purehase anaaey or to inquire. intio the valf.dity, egtpeciiency or
property any such sale or other disposftion.
(b) To acquire, hold and dispose of aaay real or personal
paroperty at such ta.ene, in sucYa manraer and upon such terms,
. inclrading dommgtmesats to puxchaae over a period o£ one or mo~e
yeaxss, as t21'e Retixetnent Board may dcem aelvisable, and to exchange
all or any part of such real or personal property far other real or
persoraal property, upon such texms and coaaditions as the Retirement
Board deeenaipgoper.
(e) To. reltain,. manage, operate, repair, remove,
partitaoaa, mortgage or lease far any term or terms of yeaxs any
. real property constituting a pazt of the Trust Fund, using ather •
Z'rust aseetd for aaay of such purposes if deemed advieable.
(cl) To compromise, compouaad and eettle any debt or
obligation due ro or from them ae the Retiirernent Board and ta
reduce the rate of interest on, to extend or atherwise modify, or
to forecloee upon default or atiherwise enforce or act witka z-eapect
to aray ouch obbigatiion.
(o) To vate, in person or by ganaral or la.mited proxy,
any dtocks or other securities at any time held in the Trust Fuxad,
at any meeting of stockholders or securs,ty ho].dere, in respect to
any businesi which may come beforc the meeting; to exercipe any
options appurGenaaat tv any stiocks, borads or oLher securities for
the convereion thereof into otkaer stackg, bonds pr securitiea; to
exarcise or`sell any conversion or aubscripti.on righi:s appurtenant
to any atocks, banda or other securities aL- any time held in the
Txust Fund,'and ta make any and all necessary payments therefor; to
7oin in, and to approve, or to di.asene from and to oppase, aiiy .
corpoxate ~at or proceeding, including any reorganization,
recapitalizata.oaa, canaolidation, mPrger, di3solution, liquidation,
sale of aqeetis or other action by or plan in respect of
3AM520841Y1346.3 - 3 -
11i11i1994 13~02 GORSUCH & KIRGIS 3W 298 0215 P.24 _
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corporations, the stbeka or securiCies of whxch may at any tima ba
held in the Trust Fund; to deposit w.ith any commititee vr
depepitary, pursuant to any plan ar ag=•eement of protection,
reorganizatian, aonsalidation, sale, merger, ar other readjustment,
any praperty he1d in tihe Trust Fund; and tcy make payment from the
Trust Fund of any eharges or assessments imposed by the terms of
any such plan or agxeement. •
(f) To aecept and hold any secur:ities or other propexty •
received by it under the provisiena of any ef the subdivisions af
thxs. Sectioa, wh,ethex ar not the Retirement Bpaxd would be
authorxzed hereunder to invaet therein, with the exception of
securities of the Lmployer.
(g) To barrow or raise monies Enr the purposes of the
Trust to the: extent that tihe Retirement Baar<i shall deem desirable,
and for any pums so borrowed.or advanced to iasite its promiasozy
note as Retirement Board and to secure repayment thereof by
pledging any part af the Trust Fund; and no person loaning money to
the Retirement Board shall be bound to see to the application oE
the money lpaned or to inquire inta the v<<lidity, expedxency ar
property of -any euch borrowing.
(h) To enforce any right, obiigiation or claim in its
dj.scretion aand in general to protect in any way the interests ot
the Trust F'itnd, either be£ore or after default, and in case the
Retirethenti Board ehall, in its discretion, cc,nsider such action for
the best interest of Che Fund, ta abstain firom the enforcement of.
any right, obligation or claim and to abandorn any property, whether
real or pergonal, which at any time may be ]zeld by the Retirement
Board. . . :
(i.) To make, execute, ackrww].edg'e and deliver any and
all deeds, leases, assignments, transfcrs, conveymncee and any and
all other ihstruments necessary or appropr iate to carry out any
powere herei:n granted.
(j) To cause any investmenCs fronl time to time held by
it hereunder to be registered in, or transfe:rred intio, its name as
ltetirement -Board ar'the name of ita nominee or nominees, with or
without deeignata.an of fiduoiary capacity, or to retain any
invegtmenGp unregiptered or in form pez•mitting txanefer by
delivery, but the bookg and records of the Retirement Board shall
at a11 times show that all such investments are part of the Truat
Fund.
(1C) To retain a portion of the Trust Fund in- cash
remporarily awaiting investment without liability for interest
rhereon and to retain in cash withouti liability for interest
thereon so much of the Trust Fund as tihe Retirement tioard rnay deem
advisabl.e fox the purpoge of ineeting contemplated payments under
the Plan.
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(1) To daselose the trust wrhEn the Retixemerat Board, s
fiduciary cai pacity so requires. .
(m) To pay the folgowixag: any amaiant ciue an any loaaa or
advasice enade to the Truat Fuxicl; alZ taxes of any nature levied,
. assesserl or imPOSed upon the Trust Fund; and all reasonable
expezases and attorneys' fees necesearily incurred by the Retirement
Board with respect ta any of the f ollowirag matters, to the eaetent
nvt paid by the EmpS.ayer. .
(n) To do a11 acta whicYa the Retirement Baard may deem
necessary or proper anrl to exeraiee any arad abl the power8 of the
Ftetirement goard upon such tezms and aondbtions as the Retaxement
Board ma;y ddom to }e in the best intexeat$ of the Trust Fzrad.
(o) To defend alay suit or legal pz'oaeedingp againat the
Taust an~ ~~e Retbremeaat Board may eue or bring legal proceedings
against any partcy or parties, compxomise, eubmit to arbitratiori, or
settle any suit ar legal proceedirig, claim, delbt, damage or
unciertaking due og owing fram or to the Trupt Fund, in the
adma.ngsrcratian of the Fund, the lteti.rement Board shall not be
ob7.i.gated tb take any activn whiah wculd subjeot them to any eMpenee ar 13.abalgty unle9s they be First indemnified in an amount
and aaa the enatinex° satxsfactoay to the Retirement Boaxd or to be
. fuxauiskaed with funds suffiaiexat, i.n the so].e judgement af the
Ftetirement goaa:d, to cover such expenses.
, . Bectian 3 e 3 Investenent in pooled Funde.
Notwithstandi.ng any atkaer plcova.sxans of this Agreement,
the Retiremant Board ma}r cau~e any paxt of the maney or property of
this Trust Vund to be commingled with the money or property of
txuetie created by otlaers by causing such aesets to be invested ae
a paxt of one or rnore ot the Funds created by any Declaration af
Trugt af any baaak uaader which funds from other xetirement, profit-
sharing, stqck bonup or other trusts which are exempr from federal
income taxation under the Internal Revenue Code are held, and money or propert}r' of. thfo TXUSt Fund sv adcled to ane or • more of said
Funds at any time ahall be gubject tio al.l ot the provisions of said
Declaratian og Trust ag amended from time to time,. and said
E7eclaration o£ Trust is made a part of thbe Agreement.
Sectioxa 3.4 Emplovment of Aqents and Aclvisors.
The Reta.xement Board, at the expense of the Trust Fund,
may fram time to time employ attorneys, accountants, agents,
inveatment advisore or investment counselors and delegate.to such
peraons or organizations adminiatrative and c'lerical duties with
respect tio the Trust or Trust assets without liabi'lity far any
neg].ect, am-ission, misconduct or default of any such pereon or
organizatiiaz~, pravided that such person or organizatf.on was
se].ected arad retairaed with reasonable care, unless the Retiremerit
Bdard would otherwise ba liable in accoxdance with Section 4.5
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- 5 -
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• ~
hereof. The Retirement Baard ehall also have the power to employ
an investmenti manager and to delegate to esuch investment rnanager
the pawer and discretivn to manage a11 or piart of the asgeta af the
7.`rust, and the Retirement Board shall be withaut liability for any
neglect, Qmission, misconduct or defaulti af such xnvestment
manager, provided that 9t1CY1 inveetment manager wag selected and
retained wiCh reasonable care and prudence.
Bsction 3.5 - Third Parties D+° t
B-aA;;d •
. Z'hird partieg deali.ng with the Ret.irement Board. sha3.l not
be requ.ired to make any inquiry as to whether or not the Retirement
Board has comp7.ied with the requiremenCg of tha.s Agxeement, but
ehall ba hQ].d harmleas in relying upon the certificate of the
R,etirement Baard that it has authority to ta:ke any proposed action.
S~tion 3.6 Powers and Duties c>f Retzrement BQard and
bisbursement of Truet Fund.
The Retirement Board shall make payment from the. Trust
Fund to quah persone, in such manner, at 4:uch ti.mea and in such
amaunts ae it deems necessary in accordance•1n?itih the Plan and.Trusti
Agreement. '
Section 3L7._ Non-P,lienation o£ Benefitis.
The Trust shall not in any manrner be Iiable for, ox '
subject to, the debts or liabilities of an,t Participant, retired
Farticipant, beneficiary or contingent benefici.ary. No right or
benefit under tihe Plan sha7.l ba subject at any time ox in any
manner to alienation, sale, transfex, aosi.gnment, - pledge,
encumbrance, charge, garnighmant, execution dr levy of any kind,
gXther vvluntary vr involuntary, prior to actually being received
by the pereon entitled to the benefit under the terms ot the Plan.
If tihe terms o£ this Section are contrary to the l.aw governing in
a particular circumetiar,ce, any such payment ahall be exempt £rom
such law to the maximum extent permitted by guch law.
1 '
ARTICLE IV
ADMINISTR.ATIVE AOWERS AND DUTIES
Section 4.1 General Duti.ea and Powers of
Administra 'on. •
The Retirement IIoard shall be: charged wirh the
administration of this Plan and Trust a,nd shall decide all
questiona arieing in the adminiatration, interpretation and
application of the Plan and Truat Agreement, inc].uding all
questiong relating to the eligibility, vesting and diatribution.
$AW152 08 419 1 3A63 -6 -
. 11i11i1994 13;04 GORSUCH & KIRGIS 303 298 0215 P.27
b
The Retirement Board may fxom time ta time establiah
reasonalbXe gaxocedttres, rules and regulations for the adminfgtratian
O$ tglE F13Yi and Tx'tint a6 it may de2[li d@B1K'abLe and such proceciure9,
rcu].es and regulataans shall be binc3ing on all employees,
Paxtica.pants, gvrmer empboyees and benef iciaries . All procedures,
ra1eb, xegtxlatxone and $eporte shall be unigormly and aonsiotently
applied ~o a11 PaxtiCapanto and beeaeficiaries in similar
circtxrrietartces.
The Retirement Board magr, but shall not be requixed to,
allocate tflae faduciaay dutian and responsiba.la.ties under the Plan
and Trust between and among the named and actirag Plan fiduciasa.es,
subject to t}ae provbsaoras of Part 4 of 6ubtitle B of Title T of
Elt%SAe
RgRQrt@ •
The Retireenent Board sha11 leeep or cause to be lcept all
such booles of accorxrst, recorde and other data aa may be necessary
or advisabbe bn its judgment fox the administration of tYais lP7.an
and Trust, tv p~opex1y reflect the affairs thereof, to deteXtnine
the amount of veetecl and/ar forfeitable interests of the regpectirre
Participants a.n the Trust k'und, and tkae amaunt of aTl benef its
kaereundex. As a part thereof, it eha5.1 maintain or aaupe to be
maintained aeparate aecaunts fox Participants provided for in
Rrticl.e V of the P1ane The Retixemerat Board shall a1so prepare and
tile, ag cause to be prepared and gil.ed, all fedea~a~. ancl state
reparts and ~returris which may be required by law and shall prrnride
to the PartiGipaxlta and their beneficiaries all noticds, xeports
and descripeatons that may be required by lava or regulation. Stction 4.4 Benefit payment o
TYae ReGiremenic Board shall pay a11 benefa.ts from the
Z'rust Fuaad pursuant to the provisions o£ the P1an.
Sect~.on 4.5 -Appliga i on apa Foxms far Benef its . .
The Retitement a4ard may require a Farticigaant to
compl.ete and fgle with the Ratirement Board an appli.catian for a
benef it and a11. other forms approved by the Retaxement Board and to
fuxni.sh all pertinent intoxmation requeeted by the Employer. The
Ret3remenic Boaxd may xe].y upon a11 9uch infarmatioaa sa furnished
it, including the Participant's curxent mailing addreas.
Section 4.6 Claims Procedures. Upon a participant'g texminatian of aervice with the
Employer for any reaeon,the Partbcipant or t'he Parricipant's
beneficiary will be advised by the Itetirement.Board of his or hex
xi.ghts tv benegits under the Plan. If at any ta.me the Paxticipant
saW208419130a - 7 -
11i11i1994 13~05 GORSUCH 8 KIRGIS 303 298 0215 P.28 .
.
or the participant's beneficiary feels that he or she is entitled
to benefits, he or she may make a claim for benefits by writing a
1etter to the Retirement Board requesting the benetits and etating
why he ar she fee].s he ax ahe is entitl.ed t.o them.
T£ the claim for benefits unqler the Plan of any
Participant or beneficiary has been denied., tihe lteeirement Board
ahall provide adequate notice, in writi.ng, to such Participant or
beneficiax.y .within ninety (90) days after tl^ie claim is filed. Such
notice ' shal`l st forth the specific . reasons tor such denial,
specifie referenee ta pertinent P1an provigi.ons an which tYze denial
is based, a deacription of any additional material or infax~mattionnecessary fc~r the claimant to perfeat his or her a].ai.mp, if any ,
and an explaz~~tio» of why such material dr information ie
neceesary, and apprapriate in£ormation as to the steps to be taken'
if the Participant or beneficiary wishes to submit his or her claim
Eor review, If a notice of the denial of a claim is not furniahed
• within ninety (90) days, the claim shall be deemed to be deniad and
the claimant ahall be permitted to submit his or her claim•for '
review.at that time. Each claim submi.tted for review shaii be
entitled ta*a full and fair review by rhe RetiremenC Board••(ar by
a peraon designatad by the Rstirement Board) of all the facts and
aircumstanceg and the preliminary decision denying such claim. The
Participant;or beneticiary may requeet euch a revxew upon written
application, he or she may review pertinent ciocuments and he or she .
may submit iseueig and comments in writi.ng. Any such review must be
requested within seventy-five f75? days c?f the original claim
denial,.and'a deciaion on such claim ahall ibe made not latex' than
sixty (60) days afrer the Plan's receipt of such request. The . decision on review shall be a.n writiing aLnd shall include the
specific reasons for the decisa.on, written :in a manner ca].CUl.ated
to be undergtood by the claimant aa well as speeiEic referenpes to
the pertinent Plan provisions on which the decisian xo based.
Secta.on 4.7 Advice of Counsel.
The Retirernent Board may caneult evith legal counsel, who
may be couneel fox the Employer, or a legaY. cvunsel hired by the
Retirement Board, with respect to the meani.ng or eonstruction of
this Trust Agreement or the Retirement Board's obligatian or duties
hereunder, and eha7.l be fu11y protected from any respansiba.lity
. with respect to any action taken or ornitted by it in goad faith
pursuant to the advice of such 1ega1 counsel, pravided such caunsel
was selec.ted and retained with reasonable cztre and prudence-
Sectian 4.8 Standard of__Care.
The Retirement Board shall dischzLrge i.ts duties under
tihis Agreement and the Plan for the exclusive purQose of providing
benetits to Paxticipants and their benefic:iaries and defraying
xeasonabie expenses ot adminigtering the PlanL with the care, skill,
prudence and diligence under t,he circumstances r_hen prevailing that
a prudent man acting in a li.ke capacity and famili.ar with such
. SAWLS2084191346.3 - 8 -
, ililli1994 13;06 GORSUCH & KIRGIS 303 298 0215 P.29
Y matters would use in a conduct of an entexprise of a like chagacter •
and with like aims.
Sootion 4.9 Liabilitv fdr nreach df Fiduciarv.
. R fiduciary shall not be liable for the bxeach og
f bducbax-y responsibility of araother fiduciary of the Plann ar Trust
ugalesa : .
{a} He participa~~a knowingly in, or knowingly
undertakes to coaceal, an act or omissi.on of such other fiduciarlr,
knowbng such act or oma.s'sion is a breach; or
(b) He haB enabled isuch othex fiducaary to eommit a
breach by kaas failuxe to disclaarge 2ais dutfes to the Plan and Txv.st
salely in the baategept af the Partxcxpants axxd rheir 'benef iciargee;
4r
(c) He fails to malee reasvnable efforts under tkae
circumstances to remedy a breach of such other fiduciary of wriich .
he has lenow].edge. .
ARTxCLE v . .
TAgCES. EXPEf1TSE5 AI1Y7 C0MFENSATION OF M U'PIREMENT BOA1tD
Section 5.2 Administxatian Exnenses and Ca neneation
o'F t2'le Re~ tr~?m~nt ~08Y'~ e
The reasonable expenses incurred by the Retirement Hoard an or am a result of the performance of xtg elutiee hereunder, includirag xeasonable fees and expenses for agency and legal
sex-vices xeradered to the Retirement Board, fess oi aray bnvestrneatc
managex og investmenti advisor for services to the Trust, xnsurance
pgemiume arad such compensation to ttae Retiretnerat Board as may be
agreed upoaa from time to time between the Employer and the
. ltetirement Board sha11 be chargeable against, and deductible frvm
the Trust Furd, txnlesg and until they are paid by the Employer:
Natwa.thstand.ing the foregoing, no ind2vidual trustee wha ia alsp a .
fu].].-time 4mployee of the Employer shall receive compensatian for,.
his nerviaee oxa tkae Itetirement Board.
Section 5.2 Taxes.
Piny taxes which the Retirernent Boaxd is requi.red to pay,
iaacJ.uding real and personal. property taxea, income taxea, transfer taxes and otkaes taaces of any- kind whatsaever that may under any
exieting or future laws be aseessed agai.net ar levied upon or in
reapecC to the Trust Fund or itg assets, or any interest therebxa,
shall be chargeable against and deductblble from the Trust. f'und.
. The word °1 taxes" in this _ Sectidn shal l be deemed to inclucle any
a.ntereet or penalties that may be ].evied or impoaed in reepecL to
any taxem. P,ray expense iracurred by the Retirement Board in
3l1W1520Ad191346-3 - 9 -
11i11i1994 13:06 GORSUCH & KIRGIS 303 298 0215 P.30 .
cantesting the vali.dity vf such taxes ahall also be chargeable
againslc and deductible from the Truat Fund..
SRctiOn 5.9 Educational Advanc:ement.
It is deemed xeasonable and prudeint for Retirement Board
to obtain educatianal advancementi and expF?rtise in ali areas of
trust fund administzatxon in ordex t0 pZ'OV1de and mainrain the best
possible benefite to the trusti Fund participants and their beneficiarias. in order to achieve such e-ducational advancement
and expertise, Retirement Board membars ma-y attend annual and/or
regional meetxngs andjox eeminars aponsored by the International
F'aundation df Emplayee Benefit Plans and/or sponsored by otiher
institutiong o£ higher learning. The Retixementi Board attending
such meeting or meetinge may be reimbursed from the Trust Fund for
all reaeonable and necessary expenses actually incurred by them,
including but not limited.to registratiion fe:es, meals, lodging and .
travel expense; provided, hawever, that reimbursement of tihe
Retirement toard member for such expenge shall.first have been
authorized by resolution of the Retirement ebard adopted at any'
regular or apecial meeting of the Retirement Board prior to the
incurrence of any such expense.
ARTICLE VI
ACCOUNTS OF THERETIREMENT BOARD '
Sectian 6.1 Accou ts of the ~~~.tirement Baard.
The Ratixement Board shall maxntain accurate and detailed
recards and accounts of all investmentis, receipte, fligbursements
and other t;ransaction.s of Che Trust. AlA accounts, boakig and
recorda rel,ating td auch traneactions sha11 be open at all
reaaonable timep to inapection and audit by any pea:son or persans
design.aGed by the Employer.
Section 6.2 Valuation Reports.
The Retireinent Board shall eubmit t:o the audztors for the
Employer and such other persons as it may designate, such
valuations, reports oz' other information as such persons may
reasonably rdquire. '
Seat'on 6.3 Periodic Renorts. The Retirement Board sha1l file with the Employer, as
soon a5'possible after the close of each fiscal year, a written
accountin.g setting forth a deecription of al:l securities and other
pxaperty purchased and gdld, and all receipits, disbuxaements ancl
other transactidns effected by tihe Truat during such pera.od. Such
accaunting shall alaa list all caah, securit:ies and other propertiy
snww84191 3ac.9 ~ 10 -
. 11i11i1994 13:07 GORSUCH & KIRGIS 303 296 0215 P.31
held in the Trust Fund at the end of such perivd at their adjusted
book value asid 'at their market value.
ARJ xxcIL? - vzr .
RRSY!GNATYON. REP90V~ AND SYYrrEeSYnN OF
RTJ_STEE ML7 WTABLYSMNT de bnnrTr NAL TRUSTS
8ection 9.1 Meianatidn af Trugtee.
Fny Trustee, or any isucceaeor Trustee or `Pruatees, rnay
resign his or its duties aB Trustee hereunder at any time by filing
his or its written gesignation with t3xe 7Crxat and the Eenployer. No
euch resi.gnata.on slaall take effect untia sixty days fram the date
ot its debavea~y to the Trust aaad tkae Emplayer, provided, taowever,
that if asuacessor Trustee ehall have baen appofaated, and ahall
taaae acceptEd, prior ta the- expiration df said periad or if a Co-
x'rustee is theaa acting, tihe rcsignation ehaXl be effective
immediatielya
~~c~iqn 9 _2 ~emova9 af ~ s e.
Any Truatee, ar any successor Trustee or Trustees, may be
removed by the Employer, by aatian ef the Towaa CounCil, at any time
upon tkae giving af sxxty days' notice axa wra.ting to the Trustee ar
Txusteea to be remaved. suah xemoval sha11 be effecteci by
delivering ta the Trustee to be semoved written aavtice of i.ts removal, exectated -by the Employer and giving nota.ce ta the Trustee
. of the appointment of, and acceptaaace bry, a succeseor Trustee ixa
the mansier hereinafter set forth. sectian 7.3 Automatic succession of. rustees.
The person holdi.ng each of tlae followang offices wi.th the
$mployer sha11 be a T'a-udtee :
. (a) 'I'ornn Masaager;
(b) Town Attozney; and •
(c) Finance Aixector. The persons who occupy sucla aff1CAS are initial Trustees. If any
perpon shall oease to act in one of suCh capaci.ties, that person
. ghaii be 'deemed to have resigned as a Trustee as of the date the
pereon ceases to act in auch capacity. 'L"he peraon who shall be
appOinted in such person's plave shall immsdiately became a
Trustee.
aaa addition, tlae t2etirement Board shall appaint one
employee of the ER1plOyer to serve as a member of the Retirement
Baard until he resigns or he is removecl and replaced by the
Retirement Board. '
sawUW84141346.3 -11-
11i11/1994 13:08 GORSUCH & KIRGIS 303 298 0215 P.32 .
Section 7.4 Appointment ot' Successor Additional
Trustee.
The appaintiment af a suGGeasor Trustiee sha11 be
accomplished by the delivery tio the resigning or removed Trustee,
as the case. may be, of an instrument in vn:iting, exeauted by the
Employer, appointing such successor Truste+s an.d by the acceptance
in writing of the appaintment as succeeavr 7'rustse, executed by the
successor or succeggors sa appointed. In the caae of the
resignation of the Trustee, the appoi.ntxnent of tihe successor
Trustee shaill take effect upon delivery of the notice of
appointmant and acceptiance. In the case: of the remaval of a
Trustee,* i.t ehall take effeat either upon the delivery of the
notice of appointment and acceptanae, or tihe expiratiaat vf tiha
aixty-day period provided a.n Seation 7.2, at the election of the
Trustee being removed. An additional trust:ee-may be appainted by
delivery of an instz'ument in writing ta the then acting tr.ustee or
trusteee aigned by the Employer and containi.ng the written
aaceptance of suGh additional Trustee.
Section 7.5 Successor Additior_ial Trustee.
All of the provisions set fortb in this Agreement with
respect to the Tnustee shall relate to each succeseor or additional
Trustee so appointed, with Ghe eame £orce and effect as it such
puccessor Trustee had originally been designated herein ae Trustee.
A successor or additional Trustee may be an individual or a bank or
trust company 'organized under the law to-administer trusts and
maintainirig and dpexating a gull-time truet, department.
Section 7.6 P o r U an Arpointment og Succe s
Trustee.
Upon the effective date ot appointiment of a successor
Trustee, the removed or resigning Truste:e shalX transfer and
deliver his or their interest in the Trust Fun.d td 5uCYI succeaaar
Trustee, after seserving such reasonable amaunti as they may deem
necessaxy to provide for any sums chargeable against the Tru6t Fund
or for which the TxuSt gund may be liable „ or to whzch the removed
or resigning Trustee may be entitled by way, of fees and expenaes.
The receipC of- tihe successor Trustee and. the approval of the
Employer of the final accounting of the removed or resignXng
Trustee shall be a full and complete discharge af such removed or
resigning mrustee. No &uccessor or additional Tx'ustee shaJ.l have
any liability whatooever for the actig or c>miesione of an.y prior
TrtLStee. •
Sectio 7 Addition
The Emp].ayer may, in its disc:retion, establish' an
additional trust or trusts with ather organi.zationa or individuals
ae trugtiee, and txanafer a portion af thEa Trust asaets or the
Employer's contributiona, or botih, t4 suc]a trust or trusts fax
SAW193UB4191146,~ -12-
, 11i11i1994 13~09 GORSUCH & KIRGIS 303 298 0215 P.33
xnvestment and management. rf this is done, the Trustee shall be
notigied in writang axad the Trustee shall have absolutely na
duties, xesponsibilaties er obligakians with respect to suah ather
trust or trasts or the £uaads transferred thereto.
• aection 7.8 - A9ajo_.rity Control.
Any action required to be taken hereundex-, ar which may
be taken 4xereunder, may be taken upon the varattera agreement or
consent of amajescity of the Trustees, if more than one Trustee is
then acting. No Trtastee shall be liable for any aCtian so taken,
without has corasent, if he advi.ses the otkaer Trugtees, in writing,
of his objeetzan to sucla actaon within twengy-four hours of his
being advised of such aation, pravided that eaCh.Trugtee shall use
reasoaaable Ca1Ce to prevent a Co-Truetee from commihting abreach of
fa.duciagy responsibility. "
ARTICY,E iIITI
TERMINATION ,
Sectiort 8.1 Event Not Nece ga.tatinc{ Termiriatiion at
7Che Trust establiskaed kaexeurader shall terminake upan the
happening of any one of tlae follotva.ng eventa : .
(a) Terrnination by the EmpS.oyer by acCa.oaa of the Tovan
CounGil, prOvided sixty (60) days pribr written notice of such
terminati.on shall have been given tia the Retirement $oard.
(b) The dissalution, merger, consolidation or
reorgana.zation of the Employer; provided, hawever, that in the case
of such dissolution, mcxger, conaalidation or reorganization, the
gucceesor to tkae Employer may agree in writing te centinue the Trust in ef$ect.
Sectf.on 8.2 Settlernen~ of Accaunts ggon Teminarion.
Upon termiiaation of the Trust, the Retirement Board shall have the right to a settlement of its accaunts and such settlement
sha11 be had, at the option of the Ite~iremegat Board, either by
proceedings xn a coiart of competent jurasdi.ation or by agreernent
betweeaa tlae Retirement Boasd and the E~nployer. '
S_e~~ 8.3 Disnositian af. Trust Aesets Upon
Te rmi nat i on .
Upon campletion of the settlement of the accounts Qf the
Rata.xement Board a.n accordance with Secfeion 8.2, the Retirement
Board sha11 allocate and dispose of the assets theaa remaina.rag in . the Trust Fund, after provision tor any expenses of the Plan and
SAWLS2084191346.3 - 3 -
11i11i1994 13-09 GORSUCH & KIRGIS 303 298 0215 P.34 .
• .
Trust Fund pxoperly chargeable-thexeto, pursuant to the provisions
of the Plan.
Sect'a 8'.4 Discharae of Retis-ement Baaxd.
Updn sett].ement of its accounts a?nd distXibution of all of the aesets af•the Trust Fund, the R.etirement Board shall
thereupan be diecharged from any turther iaCCauntability for the
• Trust Fund arid it ehall be under no turthiar duty, abligation or
responsibili'Gy far the disposition of the Z'rust Fund.
. ARTZCLE IX
AMENDMENTS TO TRU6T AGRE_EMENT
The Emplayer ahall have the right:.at any time and from
time to time by actian of the Town Council wiLth the wri.tten conaenC
of the Retirement Board to amend tha.s Trust Agreement inwho3.e or
in part by an instrument in writing executed by it and delivered ta
the Retirement Board. No such amendment, hciwever, shall cauee any
part of the Trust Fund to be used f ox, or diverCed to, purpoaes
other than the exclusive benefit of ;Participants, retired
Participanto and their benefiaiaries, exce,pt for the reCuxn df
.residual amounte provided in Section 8.5 of the plan.. Rny
amendment sha11 become ef€ective upon the diate therein stated but
shall, not bt~ binding upon the Retiirement Bc>ard unCil dalivery aE.
the written amendment to the ltetiirement Boa:rd and the endorsemenr
thereon ot the Retirement Board's written consent. •
ARTICLE X •
• ENFORCEMENT OF TRUST AME',MBNT ' The Employer eha11 have authority to enfoxce thi.s Trust
Agreernent on behalE of any and-a7.l persons having or claiming any
interest in the Trust E7and or under this Trust Agreement or the
Plan. In any action or proceeding affecting the Trust Fund or any
property constituting a part thereof, or the adminietration of the
Trust establibhed.hereunder, the Employer and the Retiz:ement Board
shall be thQ only neceeaary parties, and nd Participants, ret3.red
Participants or their beneficiaries, or any other person having or
claiming to have an interest in the Trust F-und ar under the Plan
sha].l be entitled to any notice or procees, and any judgment that
may be entered in such action ox pxviceeding shall be binding and
cancl.usive on a].l persons having or claiming to have an intarest in
the Trust Fiiud under the Plan.
L=ZCLE Xz
LAW GOVERNING PLAAt
• This Trust Agreement and tihe Txuet hereby created shall
be construed, zegulated and administexed under the lawa of Lhe
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, .
q .
State of Colorado, and the Retirement Board shall be liable to
acceuaat only' in the couits of that state e All mntributions
reaeived by the Retirement Baard hereurader sball be deemed to have
beem received 9x? that statee
A1tTICI,E XII `I'12LqST MR ESCQWJ.1ig BENStr1PT OF FART%CIPAN'x$ The EmpYoyees' Pensian Plan and this Trast Agreemeaat haLve
beeaa.entered bato £or the eeclusive benefit of the Participants arad
their beneficiaxiege IInder ns cireumstances ahall any funde
oon.tributed to or held by the Retiremerat 8oard •hereuxader at any
time revext to or be used by or enjoyed by the Employer mor shall
aaay such gurads ar assets at any time be uBed other than for the
eacclusive benefit of the Parta.cipantg or their beneficiaries,
except as pxovided baa Sectian 8.5 0f tlae P].ax1.
&%LUT,E 3t Y f I:
RETIREAZENT BOARD LIABILITY '
SortiQn 13.1 Protectiari of the Retire ant Board.
The Retixement Board sha11 raat in~= any ].iability by
reasan af taking any actioxa indicated by Chis instrument to be
within the scope of the auttaority of the anvestment Manager
appointed by the Retirement Board in accordarace with any written
ingtrument ptxrparting to be signed by such pereon or pessons authorized to sagn for the znvestment manager, or in reliance upon a certified copy of a regolv.tion of tYae %tetirement Board, any of
whic2a the Retirement Board, in good faith, bels.eves to be genuine.
The Retiretnent Boaxd may coneult with cauaasel, who may be counsel
far the Employer, baa respect to any of its duties or obligationg
hereunder and ehall be fully protected in acting or refraining Zrom
acting in accoxdance with the advice vf such counsel.
The Retfrement Board shall incur na liabbla.ty for any
loss to or depreciation in value of the Trµst Fund os for any act
done or omatted to 'be dorie in the administration of the Trust,
except for breach of its fiduciary dtxty as set forth in this
instrumesat. The Retirement Board shail be indemnifi.ed and saved
.haxmles$ by the Employer from and againpt any and all liability
axising fXOm breach of ito fiduciary duty as afoxasaid, i.ncluding
all expenses reasoaiab].y incurred in its defenpe, in case the
Employer fails to provbde auch defense.,
sgctia 13.2 In emnifi aion.
Z'kae Employer ehall indemnify and hold haxmless the
Reta.rement Board from any and alb claims, loeses, damagea, expenses
(including couneel fees approved by the Retirement Hoard), anci
laaba.litiee (incbuding any amounts pai.d in settlement with the
snan52084a\9130.3 -15 - .
ililli1994 13~11 GORSUCH & KIRGIS 303 298 0215 P.36 ~
Retiremant Board's approval) axising from any aat ar amission of
the Reta.rement Board, except when the same is judiciaZly determined
to be due to the gross negligence or wil].ful minconduct of auch
Retirement Board.
section 13.3 Hondina alad Insu;rance.
• The Retirement Board, any Inveatment Manager appainted
pursuant ta Section 3.4, and anyone acting as a Fiduciary ahall be
bonded £or the ma.nimum amount requa.xed unlesa the Employer shall
direct that a bond in a largex amount ba rnai.ntained. The
Retirement Board may obtain Errors and Omissiions Insurance far such
' amount as they deem advisable to protect the Trust Fund. Such
insurance and bond' premiume and fees may be- paid as an expense of
the Trust purauant to Section 5.1. .
IN WTTNESS WHEREsOF, the parties hFreto have executed this
instrumenti the day and yeax first above wr:itren.
. TOWN OF VAZL
$y:
, Mayor
. "EMPLOYER"
T4WN OF VAIL EMPLDYEES' PENSION '
TRUST "RETIREMENT BOARD" '
SAm520s4\91346,3 -16 -
, 11i11i1994 13:11 GORSUCH & KIRGIS 303 298 0215 P.37
' i
'
ST14TE OF COLORABQ
) ss.
COiJ1UTY OF EFaGL4E )
The faregoing bnstrument was acltnow].edged before me this
day of , 1994, by , as A9ayor
of the Town af Vail, aa Emplayer. -
Witness my haaad and offica.al oeal.
Niy commissiari expires : ,
Notargr Publbc
. ( S B A L )
• P,cldresso
STATE OF (e0L0RADO )
) ss. '
COi7N'I'X OF EAG%aE ) .
The foregoing inatrument •waa aCknowledged before me this .
day of , 1994, by ~ .
e3Y1~ ~ e~~
t e Ret ]CeiY1e21t BOard.
Witness rny hand and offacial seal. A9y commission expires: 1Votary Public ( S E A L )
Addreee: 3AW15208414134C.9 - 1'] -
TOTRL P.37
b
ORDI64P0176OE 99O. 31
SERIES OF 1994
AN ORDOBVANCE MAICINCa SUPPLEnl1E1dVAL APPROPRIAT901VS
FROBtlA 0 tl-9E TO9tlOV OF F7AOL. GENERf1L FW/IIYDy CAPI B P1L PROoBEV II S FVIVDy
REA15 ES0 ATE TRAAtlSFEPVT6°feX FB.IHDy P891'SA'NVI S8 1'1VV A URE FVIlDy
, HE6'0tl II ~QUIP9YAENT FVND, BOOE 9-0 '6/IIEGH! DGBtl SE1"DYI&sE FVAlDy .
AND T611E CAP9IL 6-9OiJSI1\~ FU1lD y .
THE 1994 BUDGET AND THE FIIVANC9AL PLAN
IrOR TIf-0E TOVBTN OF tl/"iILy COLORI°1DO'y
AND AUT6i0R9Z9NG THE EXPENDBTfl1RES OF SAID APPROPR&ATIONS
P9a7 SEII FOL"1 0 [-A HEflEINy
POND SEU 0 DAtlG FO11 II WDETMILa7 I9tl REG/411D tl 63ERE0O. VVHERE,4S, contingencies have arisen during the fiscal year 1994 which could not have
been reasonably foreseen or anticipated by the Town Council at the time it enacted Ordinance
fVo. 26, Series of 1993, adopting the 1994 Budget and Financial Plan for the Town of Vail,
Colorado; and,
V1/HEREAS, the Town has received cerfain revenues not budgeted for previously; and,
1A/HERE,4S, the Town Manager has certified to the Towrn Council that sufficient funds are
available to discharge the appropriations referred to herein, no4 otherwise reflected in the Budget,
in accordance uvith Section 9.10(a) of the Charter of the Town of Vail; and,
UVHEREAS, in order to accomplish the foregoing, the Town Council finds that it should
make certain supplemental appropriations as set forth herein.
IVOVV, THEREFORE, BE IT ORDAIIVED, BY THE TOWN COUfVCIL OF THE T01A/fV OF
VAIL, COLORADO that:
1. Pursuant to Section 9.10(a) of the Charter of the Town of Vail, Colorado, the Town
Council hereby makes the following supplemental appropriations for the 1994 Budget and
Financial Plan for the Town of Vail, Colorado, and authorizes the expenditure of said
appropriations as follows:
FUfVD AfViOUfVT
Real Estate Transfer Tax Fund $ 19,743
General Fund $ 275,580
Capital Projects Fund $ 31,000
Booth Creek Debt Service Fund $ 75,000
Parking Structure Fund $ 6,117
Heavy Equipment Fund $ 68,731
Vail Housing Fund 50,000
$ 526,171
2. If any part, section, subsection, senfence, clause or phrase of this ordinance is for
any reason held to be invalid, such decision shall not affect the validity ofi the remaining portions
of this ordinance; and the Town Council hereby declares it would have passed this ordinance, and
each part, section, subsection, sentence, clause or phrase thereof, regardless of the fact that any
one or more parts, sections, subsections, sentences, clauses or phrases be declared invalid.
3. The Town Council hereby finds, determines, and declares that this ordinance is
necessary and proper for the health, safe4y, and welfare of the Town of Vail and the inhabifants
thereof.
1
Ordinance No. 31, Sarias of 1994
(
4. The repeal or the repeal and reenactment of any provision of the Municipal Code
of the Town of Vail as provided in this ordinance shall not affecir any right which has accrued, any
duty imposed, any violation that occurred prior to the effectiive date hereof, any prosecution
commenced, nor any other action or proceedings as commenced under or by virtue of the
provision repealed or repealed and reenacted. The repeal of any provision hereby shall not
revive any provision or any ordinance previously repealed or superseded unless expressly stated
herein.
5. All bylaws, orders, resolutions, and ordinances, or parts thereof, inconsistent
herewith are repealed to the extend only of such inconsistency. This repealer shall not be
construed to revise any bylaw, order, resolution, or ordinance, or part thereof, theretofore
repealed.
INTRODUCED, READ, APPROVED, AND ORDERED PUBLISHED ONCE IN FULL ON
FIRST READING this 15th day of November, 1994, and a public hearing shall be held on this
Ordinance on the 6th day of December, 1994, at 7:30 p.m. in 1:he Council Chambers of the Vail
Municipal Building, Vail, Colorado.
Margaret A. Osterfoss, Mayor
ATTEST:
Holly L. McCuthceon, Town Clerk
READ AND APPROVED ON SECOND READING AND CIRDERED PUBLISHED in full this
day of , 1994.
Margaret A. Osterfoss, Mayor
ATTEST:
Holly L. McCutcheon, Town Clerk
C:\ORD94.31
2
ordinance Ido. 31, series ot 1994
a
0
TOlNN OF !lABL
SCI-OEDULE OF 1994 SUPPLEAflENT.4L APPROPFiIATIONS
ADDITIOiVAL
PROJECT 1994
No. EXPENDITURE OR PROJECT EXPENDITURES
CENERAL FUND:
Adminis4ra4ion:
Cost Accounting Software for Public Works ° 7,500
Replace Canopy Tents for Street Entertainment ° 1,000
Property & Liab Insurance Increase 55,633
Additional Recruiting Costs 23,000
Trappers Run Closing Costs and Consulting 34,000
Range Compression Adjustments 1,076
Correct Fire Safe Amount ° (623)
Coin Changer ° 1,700.
VA & Avon Sister City Contribution 2,500
Court Appointed Council 2,000
Cornanuni4y Developenen4:
Range Compression Adjustments 2,478
Planner 1 iVew Position 14,500
Furniture and Carpet for New Planner ° 2,638
Police Deparfineng
Ford Park Special Events Shuttle (Revenue) 961
Range Compression Adjustments 20,081
FIPe Depar4rrten4
Haz Mat Reimb (Revenue) 2,734
Range Compression Adjustments 15,915
Grant Pass Thru 48,391
Public VNorks:
Range Compression Adjustments 7,792
Correct Prior Amendment - Used Wrong Fund' (6,402)
Transpor4a8ion
Special Events Shuttle (Revenue) 29,666
Eagle, Gypsum Shuttle 8,850
Library
Range Compression Adjustments 190
SUBTOTAL: GENERAL FUND 275,580
° Department Savings Was Used.
2QTRFIIV2 PAGE 11/11/94
. . .
;
• . .l . ' .
' . l: . .
1 • .
P
/
0
CAPITAL PROJECTS FUND:
VA Reimbursement for Overlay Cost (Revenue) 31,000
Subtotal: Projects Fund 31,000
REAL ESTATE TRANSFER TAX FUND
Reimb by CDOT for West Vail Work 19,743
PARKING STRUCTURE FUND:
Computer Equip " 5,402
Property & Liab Insurance Increase 715
- 6,117
HEAVY EQUIPMENT FUND:
Auto Body Repair Revenue (Revenue) 62,000
Computer Equip ' 2,816
Property & Liab Insurance Increase 3,915
68,731
VAIL HOUSING FUND ~
Purchase of Potato Patch Unit 50,000
BOOTH CREEK DEBT SERVICE FUND
Debt Service Generated by Assessments 75,000
GRAND TOTAL 526,171
2QTRFIN2 PAGE 11/11/94
. .
~
,
. '
r
MEflAOffi,4iVDUM
TO: Design Review Board
FROM: Community Development Department
DATE: November 2, 1994
SUBJECT: A request for a sign variance for the West Vail Lodge, located at 2211 North
Frontage Road/Lot 1, Block A, Vail Das Schone 3rd Filing and Tract C, a
, resubdivision of Vail Das Schone 1 st Filing.
Applicant: West Vail Lodge
Planner: Lauren Waterton
XXX
9. DESCRIPTION OF TOiE REQUEST
The West Vail Lodge is requesting a sign variance for the height of signs allowed. The
section of the Code which relates to the sign variance request is listed below.
Section 16.22.140 - Wall Signs - Individual Business within aMulfi-Tertant
Building - Qieight
No part of the sign shall extend above 25 feet from existing grade or the plate line of
the building, whichever is more restrictive.
The West Vail Lodge as a singfe business within a multi-tenant building is permitted one sign
with an allowable height of up to 25 feet above existing grade. The development's existing
sign consists of one 90-square foot legal, nonconforming, projecting sign 50 feet above grade
and perpendicular to the North Frontage Road. In 1985, this project received a variance,
granting a maximum height of 50 feet and maximum sign area of 90 square feet. This
variance request includes changing the sign from a projecting sign to a wall sign and reducing
the total square footage to 19 square feet. The proposed sign will be attached to the wall and
will be lit with pan channeled lights. The letters will be white and the return will be forest
green. The sign will be placed in the same location as it is now, which is 50 feet above
existing grade at its highest point.
A variance is necessary to make the proposed changes even though the height of the
proposed sign is the same as the previous variance. The reason for requiring a new variance
is because the previous approval was tied to a specific proposal. The new sign will be
different in many respects. The previous approval included variances for height and sign
area. Given the size of the commercial space, the sign is allowed to be 20 square feet. The
previous sign was 90 square feet. The proposed sign will be 19 square feet, bringing it into
conformance with the current Code.
:
~
II. FINDINGS AND STAFF RESPONSES -
Before the Board acts on a variance application, the applicant must prove physical hardship
and the Board must find that:
A. There are special circumstances or conditions applyinq to the land, buildinqs,
topoqraphy, veqetation, siqn structures or othE;r matters on adiacent lots or
within the adlacent riqht-of-way which would substantially restrict the ,
effectiveness of the siqn in question; provided, however, that sucli special
circumstances or conditions are unique to the particular business or enterprise
to which the applicant desires to draw attention and do not applv qenerally to all
businesses or enterprises.
Staff Response:
Staff believes that the West Vail Lodge has a physical hardstiip because of the design
of this building. The large size of the building makes the 25 foot height requirement
restrictive. Similar large condominium and hotel projects have previously received
height variances due to special circumstances related to their projects. Some
examples are as follows:
•The Antlers Condominiums, 40 feet above grade.
•L'Ostello, 65 feet above grade.
•The Evergreen Lodge, 65 feet above grade.
•Holiday Inn, 40 feet above grade.
The staff feels that the West Vail Lodge has similar canditions as the projects listed
above, such as the size of the building and the necessity for identity from more than
one direction. As a result, some increase in the height of the sign is warranted. The
staff believes the proposed sign is in proportion with tfie building, is not excessive, and
would improve identification of the project from the North Frontage Road.
B. That special Circumstances were not created bw the applicant or anyone in privy
to the applicant.
Staff Response:
Special circumstances were not created by the applicant.
C. That the qrantinq of the variance will be in qenoral harmonv with the purpose of
this title and will not be materially detrimental tcl the persons residina or workinq
in the vicinitv to adiacent propertv, to the neiqhborhood, or to the public welfare
in qeneral.
Staff Response: '
The staff feels that the proposed sign is in compliance with this criteria as well as with
the purposes of this title. Staff believes that the size, Iocation and height are
2
Q ~ , . . .
i~ harmonious with the surrounding area and will be compatible with the scale of the
existing building. The overall size of the sign will be reduced to 19 square feet and will
be in scale with the rest of the building. Staff believes the sign will not draw undue
- attention to itself.
D. The variance applied for does not depart from the provisions of this title anv
more than is required to identifv the applirant's business or use.
Staff Resqonse:
The applicant is applying for a variance to allow a sign to be 25 feet above what the
sign code allows and is also proposing to reduce the sign area to less than 20 square
feet. Staff feels the applicant is, not requesting more than is necessary to identify the
business.
IIY. STAFF RECOMflHENDATlOli9
The staff supports the requested variance. Staff believes this request is in harmony with the
Code and reducing the overall sign area is a positive step. Variances for height have been
granted in the past for a variety of buildings, including the West Vail Lodge, and staff believes
that this request is consistent with those variances.
This request meets the variance criteria as described above, specifically criteria lI A, B, C and
D.
c:\I au ren\me mos\wvl 11.02
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PAfNT 1.U00p TIRfM PNASF- 2 . N;
GOLOR NO. 2 TYP. CONT`RfVER RUBBLE
,
T0~1
4VAIL
75 South Frontage Road Office of the Town Manager
1/ail, Colorado 81657
303-479-21051 FAX 479-2157
MEMORANDUM
TO: Vail Town Council
FROM: Robert W. fVlcLaurin
Town Manager
DATE: fVovember 11, 1994
SUBJECT: Town Manager's Report
Police Buildinq Update
As I have indicated to your previously the Police addition is substantially complete, with the
exception of a few minor punch list items. The following is the budget showing expenditures
through the 11 th of October.
CAST Meetinq
Please find the attached agenda for the CAST meeting uvhich is to be held in Winter Park
December 8 and 9, 1994. If you are interested in attending please let Anne Wright know so she
can make the necessary arrangements.
RW M/aw
C:\Townmgr.rpt
y POLICE BUILDING BUDGET
BUDGET CURREIVT ACTUAL UNDER
REVISED SINCE THRU (OVER)
7/24/94 10/11/94 BUDGET
Architect Fees 240,000 6,622 236,703 3,297
Architect Reimbursabies 9,500 492 7,974 1,526
Architect Extra Services 28,500 627 28,911 (411)
Printing Costs 6,750 6,642 108
Testing - Soils 3,584 3,584 0
Testing - Concrete 1,714 1,714 0
Project Management Fees 49,690 6,000 46,690 3,000
Project Management Reimb 500 0 500
Surveying 4,095 4,095 0
Signage 612 226 612 0
Existing Roof Repair 44,585 44,585 0
1lVest Lot - Clean & Restripe 1,000 0 1,000
General Construction GMP' 3,027,715 219,762 2,960,421 67,294
Construction Change Orders:
1 5,839 5,839
2 10,755 10,755
3 (287) (287)
4 (1,421) (1,421)
5 3,081 3,081
6 9,799 ' 9,799
7 SIDING OIV BUILDING
8 12,592 12,592
9 14,971 14,971
10 11,536 11,536
11 (40,000) (40,000)
Other 17,653 108 17,653 0
General Contingency: 42,952 42,952
TOTAL 3,505,715 233,837 3,359,584 146,131
Owner Supplied Items:
Electronics 37,956 1,892 26,369 11,587
Floor Finishes 27,700 125 564 27,136
Furniture 34,115 676 12,497 21,618
Communications Center 44,000 4,253 52,588 (8,588)
Telephones & Equipment 12,500 0 12,500
TOTAL OWNER SUPPLIED 156,271 6,946 92,018 64,253
Total 3,661,986 240,783 3,451,602 210,384
. Retainage Equals 102,543
POLBLDBD
~ '
CAS'' l~E]E~'~TG • , ~-u4.
~ PARK, ~OLORADO ~
Decernber 8-9, 1994
SKHNG (~ompllIlm~~~ary) ns availab9e at Wnnter Par1~ on ~
'IChunrsday, December 8tho IPfle~~e reqanest tickets ~~~or to ~
~ Thu~sday, Il~~~eml~er Istat the number flnsted below for llodgang o
~ r~~ervatnonse ~
~ Dece~~er8q Il994 (Make your own dnnner u-eservation at number ~
flisted bell~~ ~or llodgnng r~~~~~~ons)
6:00-7:00 pm Cocktail Hour Lodge at Sunspot ~
7:00 - Dinner I,odge at Sunspot
~'The Lodge at Sunspot is located at the top of Winter Park 1VTt. LTphill ~
transportation will be via the Gondola at the Zephyr Express Chairlift.
Clondola service begins at the base at 5:30 p.m. and takes 15 minutes ~
to get to the Lodge at Sunspot.
Decembei- 9, 1994 ~
o 8:00 - 8:30 am Continental Breakfast Winter Park Town Hall
0
9:00 - 12:00 CAST 1Vleeting 50 Vasquez Road
I[,ODVVinter Park, CO ~
E~~o ~
Beaver Village Condominiums 1-800-824-8438 ~
1 Bedroom/ 1 Bath $68.00/night ~
0 0
~ 2 Bedroon/2 Bath $92.00/night ~
0 0
~ PLEASE REFER TO CAST MEETING Wx~~ ~
~~~~~~ATffCNe REMEMBER YOU MUs~ ~
~ffNNER, ~~D LODGING ~
RIESERVA'I['ffOIV BEIFORE 12/1? COfl 1-800-824-8438 to mak~
r~~ervatnons ffoi- allIl three.
~i
INORK SESSION FOLL0IN-UP
V'OPIC QlBEST@ONS ~OLL0W-UP SOLUTEONS
1993
10119 SNODU STORAGE LAND LARRYIBOB NicL: Immediately pursue purchase from VA Current discussions presume a decision in 6 months (April '96).
PURCHASE of current snow storage site, as well as another 10 acres
adjacent to the uvest.
1994 George Ruther met vuith Joe Macy and Bob McClery on November 10,
02/08 MANOR VAIL SIDEINALK BOB McULARRY: Investigate blind corner. 1994. Update to follovu.
(request: Johnston)
02115 CHUCK ANDERSON YOUTH PANi1MERV: Contact VRD about moving up the selection Packet received and included in Paul's and Jan's ma4erials, 5/3/94.
AWARD process to allow awards to be given during May PRIOR to Please review 1112194 memo from Pam to Paul and Jan re: recent input
(request: Strauch) gratluation or to be included with the graduation from VRD. (Memo attached)
ceremonies.
03/08 UNDERGROUNDING OF UTILITIES LARRY; Create a Niaster Plan to phase the undergrounding Larry has memo in process.
NiASTER PLAN of all above-ground utilities within Vail.
(request: Council)
03/08 NIGHT LIGHTING/NIGHT TOUR LARRY: It would appear our night lighting in the TOV, in the past, budgeted $30,000 for adding lights to bus stops, street
(request: Strauch) Crossroads/VTRCICovered Bridge area coultl use some intersections, and britlges for safety. Starting in 1994, the budgeted
09127 COUNCIL IS REQUESTING A COPY enhancement. What is the strGet lighting progran currentiy amount was increased to $50,000 io address both saiety concerns and
OF THE OVERALL LIGHTING "PLAN" gearetl toward? those areas addressed in the Village Streetscape Plan.
PRIOR TO THIS NIGHT TOUR.
COUNCIUSTAFF: In the near future, uve vuill try to Additional Christmas lighting at VTRC depends on a prioritization of
schedule an evening "tour" to look at the ambience created funding. Does Council uvish to schedule a light tour?
and safety issues inherent in our "core" community.
04105 SIGNS LARRY/GREG: Why are there so many signs in this tovun? Tom, Ken, Buck, and Larry met Tuesday, 5/13/94. They will return with a
They represent neither a quality appearance nor are they proposed signing plan by the end of July, 1994, vuith a revieuu by Council
"user-friendly." There are 24 signs betveen Tom following and implementation by fall of 1994.
Steinberg's house and the TOV...
November 11, 1994 Page 1 012
07/05 PLAQUE PLACEMENT MIKE M.JPAM: Elizabeth Wilt has requested the Town MIKE M./PAM: George Ruther will meet with Elizabeth Wilt, Marge
follow-up with memorializing both John and Cissy Dobson at Burdick, Dick Hauserman, and Pete Seibert before Thanksgiving to
a site on or close to the Covered Bridge, as well as Chuck determine Covered Bridge plaque placement.
Betcher in the area of the Crossroads benches (adjacent to
Alfalfa's). Re: Chuck Betcher plaque, Elizabeth is now working with Todd
Oppenheimer to lacate suitable placement on public property, rather than
at the original Crossroads location.
November 11, 1994 Page2 of 2
1 ~
0
~ .1
Id
e4 TOWN OF VAIL a
75 South Frontage Road Offcce of the Town Manager
Vail, Colorado 81657
303-479-21051FAX 479-2157
1VIEIVIOR.ANDUM
TO: Paul Johnston, Vai1 Town Council Member
Jan Strauch, Vail Town Council IVlember
FftOlVi: ? Pamela A. Brandmeyer, Assistant Town Manager
DATE: IVovember 2, 1994 RE: Chuck Anderson Youth Award
Robin Hensler with VR,D called to inquire about the status of the Chuck Anderson Youth
Award. She had been asked to follow up based on a request from Rob who had a copy of our
follow up sheet.
She reiterated that when she spoke with Susie last February (or so!), Susie indicated because
of the lack of interest, the fact many of the young people who had known Chnck were now
grown up, the fact no monetary award is attached to this (even though its nice. to receive the
acknowledgement of the award, monetary stipends are very important as well)... Susie wished
to discontinue it.
Robin stated since it was not processed through the VR,D this year it has not been budgeted
for '95; therefore, the VRD has no further interest or involvement.
Paul and Jan, what is your reaction to this?
PAB/aw
xc: Vail Town Counci.l
,
ciPamUnertros\pauljan
SEIVT BY:EAGLE COUNTY ;11-10-94 ; 15:57 ~ 3033267207- 3034792157;# 1/ 3
,
~o~e~tb~~ ~ p, 9 ~9~ - y e ' ' • • F.ACI.k COUNIY RWLUII`1L; .
' 351 BtVMWAY
• P.O. eox 850
OfFtCt OF 771E EAGI F. COLORADO 61631
SQARL70F COMMiS510NER5 hAl(: (301) 3261707
(303) 310.6605 ' • : ' '
'
•
• : s"`"~f,'ej .
-
_ EAGLE COu1VTY, COL.ORADO
AMENDED
AGENDA
BOARD OF COUNTY COMMISSIONEC~~
~~GULAR IVIEETUNG DAY
~~~EMBER 149 1994
caot~a~aa aa aalrt o~a 0 oama* * aaa ae,caabairoa~
9-00 WORK SElStaN a ~~EKLY UPDATE
,9ack D. Lewis, County BVlanager
10:30 - BREAK
I goQ~ ~ 12~0 WORK '
~r~es R F~i4ze, Cou ~ ,~ttome
92000 - 1o30 LUNCH ~ ELEC°fED OFF1C1ALS
9a30 - 2°,3o WORK SESS{ON = RIdEETbNt`:S A'i'TENDED
2030 - 2o45 CONSENT CAL.ENDAR
~ e~a~tsvme
nemw of & routlno and non~ent~vv0PBm1 nature 0ra P1amd on 1he oonsent a?lendar to Wlo ~t en ftUw em ba ~rs
'REMOVED' frant the con~nt s~EBnda~
end airoargp on anoP9lmpoftnl Hams on a Ee~ihy apaWe. AnY ~B'im~sSloner ma~9 ~equ
and conabdered eePBPateh?. 1'"p ^rember oY 4h9 pub1Eg mmy °RECUE6T' any sem be "REM4MEg' ftm tne Con%mni Agertdm.
1. BtLL PAYflNG
Linda Pankuch, Accounting
Mark SilvePthom, Cvntroller
ACTVONa Approva9 subject to review by the County Manager.
Y
SENT BY:EAGLE COUNTY ;11-10-94 ; 15:58 ; 3033287207- 3034792157;# 21 3
2. CHANGE ORt?ER Nl1MBER I FQ1t 1994 ~ENTERL]IVE
MARHONG CONTACT
Jc?hn Althoff, Engineering
Don Fessler, Road and Brodge .
ACT90RIe Consider apprAVal.
S. V9CTIt1A ASSISTANCE AND 9..A1A~ ENFL1RCEIUIENT eai2ANT
APPUCATION
Kim Andrea, Sheriff
AC76ON0 Consider apprabal.
~ 3:16 ~ ~~STEM Sl1PPORT AGREE{fAERIT Wl7'H EAGLE
COMPU7'EFt SYSTEMS AND ANIENDMEIVT TO SYSTENi
S18PPOFtg ACaREEMENT
Dave 6iolmgren, Dafa Processing
~CTeONo Cansider approval.
RESOLUTION AIJTHORIZtNG THE iiEl.EASE OF
(~~LLATERAL AND COMMENCEMENT QF THE
WARFZANi'Y PERiOD FOR CAS7'LE PEAIC TOWNHAIIAESo
BUILD'NGS aoEoa AND aeFoo
Patti Flaefeli, Community Developrnenf
ACTIONo Consider approval.
C. RESOLUTION AIITFiObtIZING THE FIKT1i PARTIAL
RELEASE OF CO1.8ATERAL, BLUE LAKES FfU~G V
John AIthaff, Engineering
~CTAON: Consider approval.
0. RESOLUT6ON i#UTFIOii1ZINCa Sl3BS'T&T1JTION
~~LLATERAL FOR COFtDILLER4 FIIJN~ 14
Phiil $eoft, Engineering
ACTION: Consider approval.
E. RESOL9JTBON AYJTFiQRIZING DRAWING OF COLLATERAL
OR RELEASlNG OF COLLATER4L FOR RIUER 6aAIVCH
SUBDIV0S1ON
Phi{! Scott, Engineering
~CT9ON: Consider approdal.
91
SENT BY:EAGLE COUNTY ;11-10-94 ; 15:58 ; 3033287207- 3034792157;# 31 3
P. RIESOLUTION AUTFIORIZtNG AbOPTION OF
C1ASSIIFICATION 14ND COIutPENSAT1ON PLAN FC1It ALL
CO[1NTY EMPLOYEES
Chris Arrnstead, Humara FdesOUrces
ACTIONa ConsIdQr approvai. 0. ONTE1~~OVERNMENTAL AGiZEEMEN7' BET'1AIEEN EAGL,E
COUNTYo S'fATE OF COl..QlRADO 14ND GYPSUM FIRE
PROTECTBOIV DIS7'RlCT FOR BLJILDlhlt; CODE
INSPECT1ONS
IU1ike lfVheeiersberg, Buitding Department
AC'noRlo Consider approval.
RESOLUT'IBId REC;AitDlNG UE bAATTEfZ OF 1'FfE
APF'9.1CATIQN FOR ADAMS RlB I2ECREA71ONAL
AREA FOR Elt'TENSBON OF P.U.13 SKETCFI Pt.AN
APPROVAL4RESOLUTIQNALLOYYlBVG EXTENSION
FOR A PEPJQD OF THREE (3) YEARS, FINDING OF
FACT AND CONCLL1SIpNS OF LAi1VS (tabled frotra
1vn/94)
Adarn's Ri~
~CTBONo Cansider approval. .
3o15 - 3o30 OPEN INEETIMrm
3ac70o SYUORK SIE47SIVN n
RECOMMENDATiONS FOR 1995
&9UMe0.R9 SERi/BCES GRANT°S
Kathleen Forinash, Acting Health and Human Servi+ces
YM N"Y AAEETUWO OF"iM EAGLE COL1wp7 COWSSIONERS VWLL Be HELa a1N NoVEBtM 95. 9984
ON WM RECORO rrM6 W1g,L BE HEIO a17HE EAG1,E C+ptNTy RoW.
WWRK 8ESS6aN3 WII.&. BE HElb IN TH6 MGUNT oF iHE HOLY cRass RoaN - ott oTHERtiMSE wo'rEd.
4Hl8 AGENDA 09 PROVIDED FOR WORMAIIONAL PuRP0.RES ONLY -ALL'iulAF8 AtzE a?PPRoxuNA7E.
THE WARD V$IILE IA9 SSSS1bN MAY CQN81DeR C7HER 1170" TyATARE BRBUMMT BEFOR@ IT.
IIB
SENT BY:EAGLE COUNTY ;11-10-94 ; 18:33 ~ 3033287207-1 3034792157;# 1/ 1
J,
EAGLC CGi1N[Y HUi1 IIING
ClllilF,Ul, ff1f. SD01lROAUWAY
CULlNIY MANAGtit
P.A. BnX RA)
r.AGLL•, COLORAUU RI fi.'i 1-Utt_A
/MtlG,
.."s • ['Ax: (303) 3).&-720)
~ ~ i•~~1•~ r1 _ .~~7:~
• EAGLE ~OUN7Y, ~OLORADO
MEMORANDUM
7I°QAp A11 media and intcresY,ed pastics
FROMo Jack D. ]L.ewis, County Manager
DATEa November 10, 1994
REe AGENDA AN FOR BaARD OE Co rrv DMMISS]oNERS MTG.
'd'he fol?owing item was addec1 to:
Moadav. Novenalcx A4
2:30 p.nt. CONSEN7C CAI.,ENDAR
16. dOd:?7O9.I1JF11O1V !9VlId1ORMIVG Sd1E LLOYiN QF Y!`f1L dO
lY6-I'..~itlSTE '1.7AOlJ1VL lYdllaw7 TR/'617SSVdldl'2d8O1V WdrlrlN
A7AV9.IECO?J1V E d
emit County Rom ]fac:k D. g.xvYis, County li2anageg
.6isgn Fritze, County Attnmey
AC1fION: Consider Approval. Shoutd you have any qucsgioras plcasc cafl Frances Aarela ae 328-8605. Thanlc yrnn4
JIDL/fb
c;c:: F3oard of County CoTeomissuciners
Yaanes R. lyritze, County AtQorpey
Sara Fisher, Clerk & Recorder .
Jac& %ngstad, RihHic prafamation Oft",cer
,
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TOW-N OF VAIL
75 South Frontage Road
Vail, Colorado 81657 303-479-2100 VA0L POLICE DEPAFZTAAENT (VEVVS RELEi4SE
FAX 303-479-2157
Date of Release: November 11, 1994
Contact Person: Sgt. Joe Russell, 479-2249 .
MEDBA ADVISORY UPDATE
Type of Investagatooov: iViail Fraud
Compaeuy Name: Safety Products Supply, P.O. Box 832,
Broomfield, CO 80038
Update on Suspocuoa.os Acguvuty:
On September 7 and 9, the Vail Police Department advised the community of a mail
fraud that was occurring involving Safety Products Supply out of Broomfield, Colo.
Local hotels in Vail had been receiving an invoice for fire extinguisher service from
Safety Products Supply. However, the hotels never contacted the company and show
no record of any type of work being done by the company. The Vail Police Department took 17 reports from local hotels regarding this scam.
None of the hotels made payment for the invoice received.
The Vail Police Department forwarded all of these reports to the Postal Inspector's
Office in Denver for further investigation.
On November 9, the Vail Police Department was notified by the Postal Service that it
had made two arrests regarding this scam. The Postal Service advised that its
investigation revealed the suspects were running three fraudulent companies in
Colorado: Safety Products Supply, Cleaning Supply Company and Advertising
Services Company, in which false invoices were sent to various businesses statewide
requesting payment. 50 victims have been identified throughout the state, of which 17
were located in the Town of Vail.
For further information regarding the suspect information and further details regarding
the postal inspector's investigation, please contact:
Inspector John Freeman
Agent in Charge of the Denver Postal Inspectors Office:
(303) 295-5320
# # #
PLANN@NG AND EN!/IRONMENTAL COMAAISS90N
November 14, 1994
AGEiVDA
Projec4 Oraentat6on/LuncBv 12:00 p.m.
Site !lesB$s 9:00 P.M.
Homestake Condominiums
Texaco
Holiday House
Drivers: Jim and Andy
Public Hearing 2:00 p.m.
1. A request for a conditional use permit to allow for a temporary Christmas tree lot to be
located at the Texaco site, 2313 fVorth Frontage Roadlfract B, Vail Das Schone 1 st
Filing.
Applicant: Steve Lincks/Dick Dilling
Planner: Andy Knudtsen
2. A request for a minor SDD amendment to the Golden Peak House to allow for minor
changes to the previously approved plan for the proposed redevelopment located at
278 Hanson Ranch Road/Lots A and B, Block 2, Vail Village 1st Filing.
Applicant: Craig Snowdon
Planner: Mike Mollica
3. A request for a density and GRFA variances to allow for the conversion of the Fulton
Ironworks Restaurant to a residence to be located at 1136 Sandstone Drive, Units A-
109 and A-110/Homestake Condominiums.
Applicant: Karen Bouchard
Planner: Jim Curnutte
4. A request for setback and common area variances to allow for a revised, expanded
entry on the east elevation of the Holiday House, located at 9 Vail Road/Lot B, Vail
Village 2nd Filing.
Applicant: Holiday House Condominium Association
Planner: Andy Knudtsen
1
5. A request to amend Section 18.57, Employee Housing, to set forth requirements
pertaining to Type VI Employee Housing units and set forth details in regard thereto.
Applicant: Town of Vail
Planner: Andy Knudtsen TABLED T'O DECEMBER 12, 1994
6. A request for an update for a major amendment to the Glen Lyon SDD to allow for a
revision to the master plan to allow for the expansion cif the Glen Lyon Office Building
located at 1000 South Frontage Road WesUArea D, Glen Lyon SDD.
Applicant: Calumet Federal Savings and Loan Associates of Chicago, represented
by Pierce, Segerberg and Associates
Planner: Andy Knudtsen TABLED INDEFINITELY
7. Approve minutes from October 24, 1994 PEC meeting.
2
' - . , ' _ ~ _ • . : . ~ ~ .L~~a.4(.,.~ ' - . ~ .
. , . . - ,
. , • ~ . . . . ,
' E TI N . . . . ,THE DENVER POST~
. . .
~
.
ai
iff buys
'Vai Rad
isson.
.,.,~j:: , ?
,i
1~irm adds,'2n~ c~oloo ' 1~otel im~ 2 ~1~.ys
.
.
By Steve Raabe ~~~E~~ P p6 ~ a•:
Denver Post Business Writer
Host Marriott CorP• has caPPed a Col-
deal. « ~ ~~;~~:.:n~`~'~_~~'~
Vail is pretty hot right now and
orado buying spree with its purchase of this is an attractive acquisition for Mar-
tlie Vail Radisson Resort for $25 mil- riott."
3 A' b h
lion. Host Marriott has been an aggressive
In a two-day period in late October, buyer of hotels this year. So far, it has
Marriott purchased the Vail hotel and bought 18 hotels with a total of 7,387
the Sheraton Denver Tech Center for an rooms for about $527 million.
estimated combined price of $65 mil- The day before it bought the Vail Ra- '
lion. disson, Marriott purchased the 3herato7 - R-• '
Marriott was no stranger to the Vail Denver Tech Center for an estimated
property, having managed it for several $40 million as part of a nationwide,
years when it was called the Marriott $149 million package of six hotels.
Mark Resort. In 1992, it became a Radi- Marriott said it will spend $5 million Grubb a Enis companYa ~
sson. Its name has now been changed to on renovations for the Vail hotel. SOLD: Vail Radisson purchased for $25 million. • ~
the Marriott Vai1 Mountain Resort. Industry analysts said the hotel has ' •~x~S~~~vr !
e The 21-year-old hotel is about 200 ' performed at less than its full potential. tioned to compete favorably against its space. „•,~~;.~;~;ti~m i ,
yards,.from the base of the LionsHead Its occupancy rate of 60 percent and biggest competitors - the Vail Westin The liotel was sold by a partnership`o~~ '
gondola ski lift. average daily room rate of about $120 and the Hyatt in Beaver Creek - be- First Nationwide Bank and the Fedei`aq I
"It's a superb .location," said Tom could be far higher if the property is im- cause of its central location and ability Deposit Insurance Corp. Its original tle;e
Wanberg, a broker in Grubb & Ellis proved, according to the analysts. to attract meetings and conventions veloper, Kaiser Morcus of Vail, lost.if~ Denver office who helped negotiate the Wanberg said the Marriott is posi- with 15,000 square feet of ineeting after defaulting on loans.,,..
• = , _ I
~ ~ :
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TONN OF VAIL ~
75 South Frontage Road
Vail, Colorado 81657
303-479-2100 MEDIA ADVISORY
FAX 303-479-2157
November 9, 1994
Contact: Suzanne Silverthorn
. Community Information Office
479-2115
!lA0L TOWN COUNCBL H9GHLIGHTS FOR NOVEMBER 8
Work Sessuoov Bo-6effs Council members present: Johnston, Lapin, Osterfoss, Shearer, Steinberg, Strauch
--Channel 5 Presentation
The Council heard an overview from representatives of Vail Valley Community
Television Channel 5. The public access television station is funded, in part, through
franchise fees provided by the Town of Vail and other upper valley entities. For a copy
of Channel 5's report, contact Suzanne Silverthorn in the TOV Community Information
Office at 479-2115.
--TCI Franchise Agreement Renewal Discussion
The Council continued its review of the TCI. Cablevision of the Rockies franchise
renewal. The town's cable consultant, Carl Pilnik, was on hand to summarize the 15
year agreement. As proposed, TCI would provide the town up to five percent of its
gross revenues collected within Vail. Currently, two percent of those revenues are
contributed by the town to Channel 5 for operation of the upper valley public access
station. Any agreement for continued support for Channel 5 by the town'will be
separate from the franchise agreement. A surcharge also is proposed to create a new
revenue source for community access grants (video equipment, computers, etc.) to be
dispersed by the Town of Vail to schools, libraries, Channel 5 and other educational
groups. Residential subscribers could be charged up to 50 cents per month, while
hotel units could be charged up to 25 cents per month under the plan, raising about
$40,000 annually for community equipment requests. During the review, Council
members said they wanted the Channel 5 subsidy to be shared with other jurisdictions
in the upper valley. TCI currently contributes two percent of revenues collected from
unincorporated areas of the upper valley to Channel 5 on a voluntary basis. The
Council suggested asking Eagle County to work with TCI in creating a county franchise
agreement which would formalize cost-sharing support for Channel 5. A portion of the franchise fees from the towns of Avon and fViinturn also are currently used to support
the public access channel. The TCI renewral agreement includes a contract to upgrade ,
the current cable system. TCI is proposing that the system be rebuilt with fiber optics
. (more)
y
.L
~
Council Highlights/Add 1
cable and other service upgrades, including installation of fiber optics connecting three
municipal buildings with free data transmission services fc?r three years. The Town of
Vail last granted a franchise agreement to Heritage Cablevision in August of 1989. The
Heritage Agreement is now held by TCI. The franchise renewal is scheduled for
continued discussion at the Nov. 15 and Dec. 6 evening meetings. For more
information, contact Town Attorney Tom Moorhead at 479-2107. --Vail Alpine Garden Foundation/Ford Park Master Plan
The Council approved a request by the Vail Alpine Garden Foundation to proceed
through the planning process to amend the Ford Park Master Plan to allow creation of
a visitor's center and alpine rock garden at the Betty Ford Alpine Gardens. Merv Lapin
and Tom Steinberg stressed the importance of addressing parking concerns as part of
the process. For more information, contact George Ruther in the Community
Development Department at 479-2138.
--Employee Housing Proposal
Vail resident Chuck Ogilby presented a proposal for stimuAating the employee housing
situation through an incentive program involving the water district, the town, Vail
Associates and the Vail Recreation District. Ogilby's idea includes: utility fee and tap
fee credits; providing a free ski pass, parking pass, golf pass and tennis pass.to
anyone who will permanently deed-restrict their property for employee housing; and
working with second homeowners to provide seasonal housing. The Council reacted
favorably to the suggestions and agreed to pursue the concept with Vail Associates.
--DRB Report
During a staff update on last week's Design Review Board meeting, the Council offered
support for modifying the town's design guidelines on roofing materials. Specifically,
the modifications would discourage use of wood shake shingles unless they are treated
annually with a fire retardant chemical. The guidelines currently list shake shingles as
a preferred material. However, representatives from the Fire Department and others
have expressed concern about the fire hazard. For more information, contact Randy
Stouder in the Community Development Department at 479-2138, or Mike McGee in
the Fire Department at 479-2250.
--IVlortgage Guarantee Program
The Council reviewed a draft of documents outlining the town's mortgage guarantee
program. As proposed, the town would pledge cash collateral to help lower an
applicant's down payment to ten percent. The program would provide loans for
condominiums and townhomes as well as single-family or duplex homes. FirstBank
has agreed to commit up to $2.5 million in home mortgages over the next two years.
Yesterday's discussion focused on a prioritized list of eligibility requirements;
(more) .
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Council Highlights/Add 2
occupancy standards; resale restricfiions; and foreclosure agreements. The documents
will now be presented to members of the Vail Housing Authority and Planning and
Environmental Commission fior further review. The Council hopes.to put the new
affordable housing concept into practice by early 1995. For more information, or a
copy of the proposed guidelines, contact Andy 6Cnudtsen in the Community
Devefopmenf Department at 479-2138.
--Information Update/Golf Course Bus Service
Vail resident Paul Rondeau asked the Council to improve its decision-making process
when considering cuts or additions to the town's bus routes. In a presentation to the
Council yesterday, Rondeau said the town should spend more time evaluating pubfic
perception of the bus service rather than making decisions based on the cost and load
factors to provide the service.. The discussion centered on a decision reached earlier
by the Council to decrease the frequency of mid-day and evening service on the Golf
Course route because of low ridership. The town has opted to redirect funding to provide service in the Lionsridge Loop area. With this plan, the town is capable of
transporting 40,000 riders or more this season in the Lionsridge area, compared to the
9,000 people who rode the mid-day Golf Course route last year--all for the same
amount of money. The Vail Recreation District has expressed interest in. helping to
restore half-hour mi.d-day service on the Golf Course route through a cost-sharing
program. Town Manager Bob McLaurin said an extra $21,000 would be needed to
provide the service. For more information, contact Niike Rose, the town's transit
manager, at 479-2178.
# # #
4VAIL
TOi~V~I 75 South Frontage Road
Yail, Colorado 81657
303-479-2100
FAX 303-479-2157
November 10, 1994
Linda Fried
c/o Gore Creek Gold
183 East Gore Creek Drive
Vail, CO 81657
Dear Linda:
Because you have been absent from the past two meetings of the Local Licensing
Authority, we are writing to summarize what has occurred and express the direction in
which we wish to proceed regarding the current situation facing the Authority.
At a special meeting on August 30, we discussed legal issues in executive session
including conflict of interest, as well as our concerns for the professionalism of our
board. On September 13,.in executive session, you presented.the Vail Town Council with
a letter, stating you had been asked to resign from your position on the Authority. The
following day, we directed a letter to Council, requesting a copy of your letter, and
asking Council to resolve the matter. Council requested a meeting with members of the
Local Licensing Authority to discuss the issues at hand and to hear from each member.
Every member was notified of the meeting and, unfortunately, only three members were
present on October 4. At that meeting, Council directed the members present to submit
a letter outlining specific problems.
We have recently met among ourselves to discuss concerns and the direction we would
like to take. We have reached consensus to work cooperatively during the remaining
months of your term. For now we would like to let the matter rest and see how the
_ proceedings of the next meeting go. We feel it is important to have open communication
among ourselves in order to best serve the public.
>
Linda Fried
November 10, 1994
Page Two
Please feel free to contact any of us shouid you wish to d.iscuss thi.s matter further.
Sincerely,
. ~
Bill Bishop, Chairman Don White
63 Willow Place, #9 304 E. Bridge Street ,
Vail, CO 81657 Vail, CO 81657
476-5797 (Res) 949-0890 (Bus)
(303) 831-4342 (Bus) 476-6835 (Res)
~ ?
~
Elizabeth ickett Davey Wilson
3140 Booth Falls Court, Apt. A Hong Kong Cafe
Vail, CO 81657 227 Wall Street
476-5044 (Bus) 476-7387 (Res) Va.il, CO 81657
476-1818 (Bus)
476-1913 (Res)
xc: Vail Town Council
Bob McLaurin
Pam Brandmeyer
Tom Moorhead
4ILi
T0~ O75 South Frontage Road
vail, Colorado 81657
303-479-21 DO ~~IL POLICE DEPARTMENT NEWS RELEp?SE
FAX 303-479-2157
Date of Release: iVovember 7, 1994
Contact Person: Sgt. Joe Russell, 471-2175 Ty(Pe m¢ Crame: Robbery, Theft
Dage o$ ~~~~rrence: fVovember 4, 1994
T9me Of OCCB9PPenCe: 10 P.M.
Locatoon of OccuPrence: Chamonix Lane Behind Vail Das Schone
ProPerty Sto0en: A ladies purse cantaining various items.
Sl9SpeC$ DeSCPEp$Bon: White male, 5'7" tall, 170-180 pounds.
Last seen wearing a black or dark-colored jacket,
black or dark blup nylon type jogging pants, white
tennis shoes, blue or b(ack ski mask that covered
the face.
Synopsis of Eveetts:
At about 10:10 p,m. iVov. 4, the Vail Police Department Dispatch Center received a
phone call from a woman stating she had just had her purse stolen. The Vail Police
Department responded and met with .the victim. The victim stated that she was
walking east on Chamonix Lane directly behind the Vail Das Schone complex when
a white male ran up toward her from behind and stole her purse as he ran by. The
suspect continued to run east on Chamonix Lane until he ran out of sight of the
victim. The suspect description is listed above.
The Vail Police Department is asking that if you have any information about this
robbery to call the Vail Police Department at 479-2200, or Eagle County Crime
Stoppers at 328-7007.
# # #
' ; % ~ ~ ' • ' ~ • ' ~ - ~ , . . ~ ~ ~ ~ . . ' . . . . . . . ~
. . - . , ~ , ;
~ Dear Town Of Vail Town Council Members, ~ October 10, 1994 ~
I would like to extend our thanks for allowing us to appear before you .last Tuesday
regarding Channel5 and the cable franchise renewal: We work very hard to be an asset to
~ the community and greatly appreciate your input a~d support. I would like to review several " ,
.of the issues we discussed. ~ ' - ~ - , _
Regarding the franchise re-negotiation I have `several points I would like to reiterate. This
. is, a very important time . for the town in regards to cable service and the franchise
agreement: This is the only time you will have the leverage you need to negotiate with TCI ~
, " for the benefits you feel are important to the co~nmunity. " TCI has one of the toughest
reputations in the industry for negotiating in their . own favor and for holding public
, access/community television in low regard. Pleas~ keep in mind that while TCI expounds
'j on how tight the profits are in their business, they stand to make an enormous amount of .
: money over the life of the agreeinent. They will be making more money, while their
contribution to Channel 5 will go down. It is only fair that you get what you can for the
- community. Once you secure these dollars and b~n,efits for Vail, then you, can~ allocate it -
' as you see fit. But you must get what you can from TCI now.. ~ -
What we got in at the last franchise re-negotiation. - ~ _
~$80,000 for capitol equipment ($40,000 per year for 2 years). ~ ~
$17,000 rent for facility per year. , ~ . ~ ~ ~
2% of the•5% Town of Vail ~'ranchise ~Fee. ~ -
. ~ 2% of the revenues generated from non=incorporated areas. ~
What .we requested from TCI through Carl Pilnick. , _
$150,000 for the first 10 year period of the franchise for'equipment.. . . .
$100,000 at 10 years into the agreement to equipment for the next 5 years: '
: ~ " $30,000 per year annual operating ~grant. (for rent and utilities.) . . .
-_:2% of the Town of Vai1 Franchise Fee. . ~
~ , ~2% of ~the gross revenues for unincorporated areas of Eagle County.
' ~ ~ ~ .~Live ~Feed capability_from Town' Hall. (previously promised but not fulfilled.) ~ .
. ` . . ~ ~ - ` ~ ' . . ~ ~ ~ . - . : - ~
. ~ . ~ ° . . , . . ; . . . . , : . . , . . . . . . . .
. _ . .
. ~ . - . .
. . . . _ , _ . . . , . . .
~ ~ I understand that: some of these~ issues and requests ~are' beyond the direct. power of your
. cunent contract.: But, it is our. hope_ that as much of these dollars as .possible .are ~ secured
. ~ ~ during the negotiations.`~. ~ - - - ~ ~ _ ~ ~ . . :
~ , ~ ~ - _ : ~
. ~ ~ ~ - ~ VAIL VALLEY COMMUNITY .TELEVISION - ~ ~ ~ ~ -
~ , P.O, Box 5600 Avon, CO 81620 ~ Phone~& Fax: ~03/949-5657 _ ~
~ . . . , . : . : ~ . ~ _ :
~ . : .f . , ,-~--::~.;,,w.;~=~~<-;~,.-ll.. ~ Q~...... . y ti . . . r _ . r...
~ .
; . . _
~ . . -
~
,
, .
;
, C . .
npcurri~ently operates as a coo erative~.be.tween the towns of Vail Av . P , on, Nlinturn
and the unincorporated areas of Eagle County. We will continue. to make sure that'all user
parties contribute as fairly as possible to the underwriting of the station. By pooling these
_ dollars and centralizing the facilities we able to provide residents with better staffing, greater
_ equipment and facilities. A change in the funding would drastically reduce our ability to ,
provide these seivices to the fowns and our residents.
Regarding other issues... .
Reli ious pro rammin,~ we will increase our public awareness campaign to inform the
public that religious programming is part of our public access responsibility and not ; under the direct control of Channel 5 or the Vail Town Council. We will accomplish
~ this by stronger identification attached to those programs and an educational
i campaign in the media. We will also keep you informed of any developments or
~ remarks we hear regarding this area. If you have any citizen that contacts you with
questions regarding this type of programming, feel free to have them contact me ~
directly. Vail,Valley Times carried an artacle covering our discussion of religious
programming on Wednesday, October 9th. (Copy attached.)
_ , . .
i .
_ Councilman Jan Strauch's request for more information on our budget and b, Iv aws
we will prepare a copy of the yearly budget, our five year financial/operational plan,
~ a copy of our corporate bylaws and a copy of our user guidelines for your review. .
We want you to feel comfortable with our operation of Channel 5. I believe this information will give you a complete and comprehensive oveiview of we operate.
;
We feelthere are great opportunities for Vail to. utilize the new communication resources
that will become available. Our group is made up of individuals. with extensive technical
backgrounds and knowledge. I am currently work%ng on projects involving CD-Roms and
internet seivices. We would like to be a resource for you for technical and management .
assistance as you start to take advantage of these new opportunities.. '
; Once again, thank you for the opportunity to speak before you. If you have any additional
questions or need any assistance please feel free to contact me: -
Sincerely; . . ; _ .
~ . . : . - . . - . - • .
Brian Hall
, President
; Vail Valley Community Television . .
_ . , .
. • Clianne15 VAIL VALLEY COMMUNITY TELEVISION
. . P. 0. Box 5600 . Avon, CO 81620 Phone & FaY; 303/949-5657 .
~n•*n^r.-- - :i•,~x,n..~+--~,sr - r.r r^ .--,-.>c•,.c....
. • . _ t'i . . . . . . _~'•7 _ . 'S:[r.;v:..._a.;..,-..-.......... ...~r'~w..-r:r+.- .,.-+..-+r~--a..a+.....'..~:.,+a..or,~..v..
, -
. . r" ..L,. t+. '
. ; .
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- .
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p~ ! "
tv d.' " ~ ~ o0 5 y ~ ~ a~.,~ . ~ ~ - - • ~ - -a
~ " LJ
r - ~
°u t°. o r o-°' -,V o.lu LTION - o
C'+
r~ Q From ~'age ^1 '
O..x,..tyiJ ~ cA v.LJ.r f~/Ol ++~:zc~v-!~ F ...L ,...s F~. ' nA;vr ~ y >~w .M5 ^fs tr ...r^;
;;perc; 'e`nt, of• the stati~n s hours"-were
W> V'6 ILI ~ y~.b.b ~~„r. 3 .=religious programs: The•firsf three
o J o :weeks of..October this year..had 8 e~o ~ 0 . [ ~ ~ o "'C4.0 M .percent.: . ~ . _ ,
.
p ~ o, 0 Hall said 'to help inform tfie public
~ N ~ :b o w ~ ~ y u o about~ religion's._ place on public access,
. ~C' L VJ L rr.l
Q
y y ° a ~ y : ; . ;such-shows could be tagged with an
nes
Z ~ o ~ u c 'v ezplanation of equal access guideli
; . , .
o o u_' "It's one, of the strings that comes, ,
U) o %Z ~ . : - - ~attached (to public access M,". he said
' Under the cable franchise agree
w t~o (D wr v 0., ment two channels are set aside for ~ ~ i v ' . ° •o > . ' public TV. Currendy, botti. public access
'.~.a.•c4.y3:~ a..,.c ~
a G,, o ai oI.~~ a . and community television in the
~ ° ~ R.'-' °0 y ~ ~ •Valley -_which are covered. under • -
oa'$km.~: oya, :b ' . . .
~ - separate guidelines - are on Channel 5
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~°e9
TOWN 0F VAIL
75 South Frontage Road
vail, Colorado 81657
303-479-2100
FAX 303-479-2157
FOR BMINEDIATE ~~~EASC
November 10, 1994
Contact: Niike Rose, 479-2178
Transit Manager _
TOV AIVNOIINCES FREE BREA,KFP?ST PROPIAATION FOR TRe41VS9T RIDERS
(Vail)--If a free ride isn't incentive enough for you to use Vail's public transit system,
now hear this: get a free breakfast, too, comp!iments of the i own of Vail and D'Coffee
Beanery.
3eginning Nov. 19 and running thraugh Dec. 16, riders on all outlying routes (West
Vail, East Vail and the newr Gypsum-to-Vail Expr?ss*) will receive a"Beanery Buck"
good for a free muffin and hot drink--a $2 vaiue--redeemable at D'Coffee Beanery. The
coffee bar is located in the Vail Transportation Center.
The "Ride the Bus, Have Breakfast with Us" campaign was created by Transit
iVianager fVl'ike Rose as a wray to introduce riders to Vaii's free bus system. "During a
budget meeting last month, (Councilman) Merv Lapiri really got us thinking abou4 the
idea," Rose said. "We wanfed to create an incentive to attract first-time riders and fio
say `thank you' to our traditional riders," he saiu. "Our goal is to keep as many vehicles
off the roads this season as we possih!y can."
Riders will receive the breakfast offer between the nours of 6 and 9 a.m. daily during
(more)
Free Breakfast/Add 1
the promotion. The D'Coffee Beanery coupons are valid from 6:30 a.m. to 7 p.m. on
the day of distribution.
With a fleet of 32 buses and 72 drivers, Vail's transit system is thought to tae the
largest free system in the country. The operation is funded, in part, through a four
percent tax on lift tickets collected by Vail Associates.
For more information, contact Rose at 479-2178.
# # #
Coming Up...
--The Express commuter service between Gypsum and Vail begins Nov. 19.
--Paid parking begins Nov. 24 in the Vail Village and Lionslhead structures.
" Fares for the Gypsum-Vail route are as low as $2 round trip.
,
~'e4
TOWI+I OF VAIL
75 South Frontage Rnad
vail, Colorado 81657
303-479=2100 FAX 303-479-2157
FOR OMM~~IIATE RELEASE
November 11, 1994
Contact: Suzanne Silverfhorn, 479-2115 ,
Community Information Office
B9eDBLDING PERMVTS BSSU~~ THE TOWN OF !lAOL
The following building permits have been issued through the Town of Vail
Community Development Department for the period October 28 to
November 11:
Grand Traverse Bus Stop, 1402 Moraine Drive, new construction, fees waived,
, Dauphinais-fVloseley.
Mountain Haus, 292 1n/est Meadow Drive #444, $8,000, Rusty Spike.
Stewart, 2975 Basingdale Boulevard, deck repair, $2,000, Stewart.
Vaulman, 595 Vail Valley Drive, remodel, $11,000, Joel Jenkins.
Steadman, 1299 Spraddle Creek Road, new construction, $1,481.,000, Woodstone
Homes..
Mammoth Video, 1031 South Frontage Road, alteration, $3,000, Smith Woodworking.
Verbatum, 450 East Lionshead Circle, alteration, $8,000, Zeeb Construction.
Vail Golf Club, 1778 Sunburst Drive, remodel, $3,000, PR Construction.
fViay, 5137 Black Gore Drive, reroof, $9,000, May.
Colorado Coffee Co., 227 Bridge Street, alteration, $21,000, J.L. Viele. CO Coffee Co. Cosmetics, 227 Bridge Street, alteration, $6,000, Redo Etc.
(more)
Building Permits/Add 1
Lionshead Arcade, 531 East Lionshead Circle, alteration, $2,000, Bob Lazier.
Robson, 174 Gore Creek Drive, remodel, $107,000, J. Speers.
Sun Vail, 685 North Frontage Road #5, new construction, $1,400,000, Lazier
Construction.
Covered Bridge, 227 Bridge Street, elevator alteration, $4.8,000, Schindler Elevator.
Gorsuch Ltd., 263 Gore Creek Drive, window alteration, $1,000, Redo, Etc.
Antlers, 680 Lionshead Place #706, alteration, $0, Rod H;all, Co.
# # # 7113