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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: -13- 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 -14- 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 -16- 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 -17- , 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: -19- 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 -21- ' 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. -22- 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 -24- 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 -25- 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, -26- 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. -28- 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 -i- 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 -ii- 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 -iii- 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 -2- 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. -3- 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. -4- 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 -5- 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 -8- 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. -9- SAW\52084\90485.4 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. -11- 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 -12- 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 -13- 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. -14- 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 . -15- 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). -16- 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 -18- 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 -19- 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 -20- 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. -21- 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 . ' . i SAW152(184192726• 1 . % ~ I 11/11i1994 12;57 GORSUCH & KIRGIS 303 298 0215 P.16 . . ~ f. ~ Sectian 8.3 - Disposition of Trust Assets Upon I Tertninat iat7 . . ! ~ ppon completion of the eettlement fl-f the aacounts af the ~ 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 - . . ; I ~ ~ 11i11i1994 12; 58 GORSUCH & KIRGIS 303 298 0215 P.17 , i 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 ~ ~ ~ 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 $y: I , Mayai i "EMPLOYER" j ~ . 1 . i • ~ ~ I I ~ i. ~ I i snWxoM,szM., - 16 - I . I , 11/11i1994 12:59 GORSUCH & KIRGIS 303 298 0215 P.19 a ' TOLVN OF iYl#II, P4LYCE AYVD F%ltE EN1pL07CEES ° PEPUS ION TRIIST . "RETIREMENT BOARD" STATE 0F {=QLORAD0. ) COTJkm -OF EMLE ~ s~ • . . ) ThIB saregoisg iri$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 : , ~ . SAW15208419272$.1 - 17- 11/11i1994 12:59 GORSUCH & KIRGIS 303 298 0215 P.20 ; . _ . w . 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: . , . SAW20841n722.1 -18 - r 1 a ~ 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. ~ . , ' 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 • d . s. (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 sawtszosA91346.3 - 2 - _ 11i11i1994 13;01 GORSUCH & KIRGIS . 303 298 0215 P.23 ~ Y 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 _ . 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. ' 5AW031184191346.3 • - 4- . , 11r11i1994 13:63 GORSUCH & KIRGIS 303 298 0215 P.25 a (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 snw?520e4~130.3 - 5 - 11/11i1994 13:04 GORSUCH & KIRGIS 203 298 0215 P.26 . • ~ 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 SAW152A84191346.3 - 14- , 11/11/1994 13:10 GORSUCH & KIRGIS 303 298 0215 P.35 , . 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 3 . I i - . I ' , t' Lodgc ~ ~WestVail L_ j ~ i 040 . . . i ~ _ : 2 • . - 2 : ?4>< na>4o4 0 < 1, 1. a A3. >aoa>aea > < ~ 3,2 i _ . i ,i I • ~ , ~li~.r.r.1~ ~ ~ ~ i ~ .t ~ 17~ t Y.~~:' ; ' . ( fi 'F I ~ f- i~ + i I . I I i i. I 'Y , I . . . . , , I J . . : . . . , - - - - - - ~ s 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 , . . e4 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 ~ ~ : ~ ~ . `~e4 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) . ~ 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+. ' . ; . . I - - . Oo~ 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 ~."v°J 3 3 y d:o y.. G,, 6•., The second diannel guaranteed by TCI l . ~ •a~ a . ° ~ > isn't available until- the first channel " B. 3 Gi. a~ _ . , : ' m.> cl. ~,.°i~"~ 3 . broadcasts 20 hours a month for six ~ S-. ~ _ . . w a~' i`y° x months: Channel 5 exceeds that licnit ou~. b ' u~o , ' `~"-c v y - h oa : The town council.is discussing'going o a a•~- ~~~~.y ; to two channels for_public TV, although,. y . ~ • L ~ •o a as. one council member pointed out, o.~ o ( concentrating ie ligious programming to ~ ~ ~ ~ • ~ 0, ~ one channel while leaving the other to = cu a cz 3 ~ ~ ~ . • more secular shows could result in . ~ ~-d o o .0 more complaints. - - _ : o u ~ "We don't have nul cases.- I know ~ that's subjective," Hall said. "We may - 41 N VJ N Q7 , 'b 'S~ ~ . . , . ~ ~ ~ ~ ~ ~ q have to deal with it at some dme, but = : . > w ~ ;a 1 not yeG" . ° E ~ • . t~a M H lu k o > a ~'I - Fa., : , . : . ` 00- G u 'p C3. O 7-- ~ - NEWSPAPER IS • • i 09 m r. R ~ ~ "0 °J~ a- ~ ~ ow I H~ . COIN ):bagged, EASIEST for the recYcler o y o vp b w~ien tf~ey are bundled, a o0 o o - ~ . " ~ ~ ~ ~ or boxcd. Please : . - - . QJ L f/1 .r L. . o u - ,r a~ ~ ~•y ;d .0 do not irclude magazines, phorie y . y 0 ~ y~ ° o~_ 3~ E• books, or anything else that d;d no2 o . °Q" ~ o R,a e comP with the paper. - ' ' Q•~~CU°~'"E'~ 0 a . . :y U.~•~ NU O..'~,td . . . I - . ' . - - fQ ~ a ,yL.I ~ ~ . . ' ' . . • OG R7 C'i _C'i .a N'b ~J ' . +-(U+ y ~ c'' y o u q~=. y G.c°:~7 - q : ^ w~ b9 h m u cd: 'ar~'~ O W C7 _ . N ~ . . `~r ; y i.+ p . O ..bw•O . . i . . V3 .CJ d r •i~ ~ . x • . d ~ y pG1. tn ` ~ ~ n2 vLi ~ ' ~ o ~ N 4~ cu0 I. •co CZA a • ~ . y • h ~ a 'b . . ' VJ F' U v ~,y U O N r"'~~..~ . . :•.a. , ~ " ~ -o- . ~ Nf4.. V • L: ~ i - ~ p w 0~ tuu.b r CA . ~nU a, o o au ~ •a p y . q .a - p ~ f~ ~ ~ co G cz O O~ O 'v E". 0 m y r -oov~a~~av.~~ ( . ad 3r V1 1-~ U..~ Y- y ~""~b'~.~1:Rq~~. ~ `i.. , . . . ?a ~jr '4 - t^~ ~:rr Ms ..t ~ ~ l , ` . . . _ . . . _ . . F.,. _ . m . - . , __.M . "r.:. ~°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