Loading...
HomeMy WebLinkAbout1991-11-19 Support Documentation Town Council Regular Session VAIL TOWN COUNCIL REGULAR MEETING TUESDAY, NOVEMBER 19, 1991 7:30 P.M. - IN COUNCIL CHAMBERS EXPANDED AGENDA 7:30 p.m. 1. CITIZEN PARTICIPATION. 7:35 p.m. 2. Consent Agenda. Jill Kammerer A. Ordinance No. 43, Series of 1991, second reading, an ordinance amending Chapter 18.04, Definitions, of the Municipal Code of the Town of Vail by the addition of Section 18.04.277, setting forth a definition for plant products; by the addition of Section 18.04.289, setting forth a definition for "Seasonal Plant Product Business"; amending Section 18.30.030, Heavy Service District Conditional Uses of the Municipal Code of the Town of Vail by the addition of Paragraph T, Seasonal Plant Product Business, and setting forth details in regard thereto. (Applicant: Richard Dilling/West Vail Texaco) Steve Barwick B. Ordinance No. 42, Series of 1991, second reading, an ordinance authorizing the issuance of Town of Vail, Colorado Sales Tax Revenue Bonds, Series 1991; providing the form, terms and conditions of the bonds, the manner and terms of issuance, the manner of execution, the method of payment and the security therefor; pledging a portion of the sales tax proceeds of the Town and the net revenues derived from the Parking Facility for the payment of said bonds; providing certain covenants and other details and making other provisions concerning the bonds and the designated sales tax revenues and net revenues; ratifying action previously taken and appertaining thereto; and repealing all ordinances in conflict herewith. Steve Barwick C.` Ordinance No. 44, Series of 1991, second reading, an ordinance amending Ordinance No. 29, Series of 1991, relating to the Town of Vail Sales Tax Revenue Bonds, Series of 1989. 7:45 p.m. 3. Ordinance No. 41, Series of 1991, first reading, an ordinance Shelly Mello repealing and reenacting Ordinance No. 28, Series of 1991, to provide changes to Area A requirements of SDD No. 4 that concern the development plan for Millrace IV, Scenario I, a/k/a Cosgriff parcel; and setting forth details in regard thereto. (Applicants: East-West Partners/Commercial Federal Bank/Cascade Village) Action Requested of Council: Approve/deny applicant's request to amend SDD No. 4. Background Rationale: The applicant is requesting to amend SDD No. 4 to change the approved plan for Millrace IV Scenario dwelling units and the proposed GRFA to 10,460 sq. ft. There 1 . are other changes to the existing plan regarding site planning and landscaping which are detailed in the PEC memo dated October 28, 1991. On November 5, 1991, Council reviewed the item at work session and, in general, felt the proposal was positive. No action was taken at that time. On October 28, 1991, the PEC voted to recommend approval of the project by a vote of 6-0 with additional conditions. Staff Recommendation: Staff recommends approval of the request with the conditions as listed in the memo dated October 28, 1991. 8:15 p.m. 4. Ordinance No. 46, Series of 1991, first reading, an ordinance Steve Thompson amending the Plan Document of the Town of Vail Employees' Pension Plan; and setting forth details in regard thereto. Action Requested of Council: Approve or deny Ordinance No. 46, Series of 1991, on first reading. Backaround Rationale: In order to authorize deductions from seasonal employee wages earnings to participate in the Town of Vail's Pension Plan, an amendment to the Town's Pension Plan is required. Staff Recommendation: Approve Ordinance No. 46, Series of 1991, on first reading. 8:30 p.m. 5. Resolution No. 20, Series of 1991, a resolution authorizing Steve Thompson the Town to invest its surplus funds with other government entities in JEFFTRUST; and setting forth details in regard thereto. Action Requested of Council: Approve/deny Resolution No. 20, Series of 1991, on second reading. Backaround Rationale: JEFFTRUST is a local government investment pool, similar COLD Trust, the investment pool we use now. JEFFTRUST is a legal investment for the Town. Staff Recommendation: Approve Resolution No. 20, Series of 1991, on second reading. 8:50 p.m. 6. Resolution No. 22, Series of 1991, a resolution approving the Mike Mo(lica Streetscape Master Plan for the Town of Vail; and setting forth details in regard thereto. Action Requested of Council: Approve/deny/modify Resolution No. 22, Series of 1991. Backaround Rationale: The Planning and Environmental Commission, at their October 28, 1991 public hearing, unanimously recommended approval of the adoption of the Streetscape Master Plan by a vote of 6-0-0. Staff Recommendation: Approve Resolution No. 22, Series of 1991. 9:05 p.m. 7. Action on Council Employees' Compensation. 9:10 p.m. 8. Adjournment. C:~AGENDA.TCE 2 . ~ ~G~ VAIL TOWN COUNCIL REGULAR MEETING TUESDAY, NOVEMBER 19, 1991 7:30 P.M. - IN COUNCIL CHAMBERS EXPANDED AGENDA 7:30 p.m. 1. CITIZEN PARTICIPATION. 7:35 p.m. 2. Consent Agenda. Jill Kammerer A. Ordinance No. 43, Series of 1991, second reading, an ordinance amending Chapter 18.04, Definitions, of the Municipal Code of the Town of Vail by the addition of Section 18.04.277, setting forth a definition for plant products; by the addition of Section 18.04.289, setting forth a definition for "Seasonal Plant Product Business"; amending Section 18.30.030, Heavy Service District Conditional Uses of the Municipal Code of the Town of Vail by the addition of Paragraph T, Seasonal Plant Product Business, and setting forth details in regard thereto. (Applicant: Richard Dilling/West Vail Texaco) Steve Barwick B. Ordinance No. 42, Series of 1991, second reading, an ordinance authorizing the issuance of Town of Vail, Colorado Sales Tax Revenue Bonds, Series 1991; providing the form, terms and conditions of the bonds, the manner and terms of issuance, the manner of execution, the method of payment and the security therefor; pledging a portion of the sales tax proceeds of the Town and the net revenues derived from the Parking Facility for the payment of said bonds; providing certain covenants and other details and making other provisions concerning the bonds and the designated sales tax revenues and net revenues; ratifying action previously taken and appertaining thereto; and repealing all ordinances in conflict herewith. Steve Barwick C. Ordinance No. 44, Series of 1991, second reading, an ordinance amending Ordinance No. 29, Series of 1991, relating to the Town of Vail Sales Tax Revenue Bonds, Series of 1989. 7:45 p.m. 3. Ordina No. 13, Series of 1991, second reading, an Andy Knudtsen ordinance a nding Section G of the Vail Village urban design considerations r ing to the protection of a view or views within the Town of Vail an Feating a new chapter of the Municipal Code of the Town of Vail~t 't~rovide for the protection of certain views within the Town, and setting forth the details in regard thereto. Action Requested of Council: Approve/deny Ordinance No. 13, Series of 1991, on second reading. Background Rationale: On May 7, 1991, Council passed Ordinance No. 13, Series of 1991, on first reading. This 1 i ordinance adds a fifth corridor to the four already adopted by the Town. The new view corridor begins adjacent to Frivolous Sals shop and extends over the Red Lion and Christiania roofs to the Gore Range. The ordinance also creates a new chapter of the zoning code for view corridor regulations. Presently, the regulations are located in the Urban Design Guidelines. Staff has postponed the second reading of this ordinance until the leaves on the aspen trees next to the Christiania had fallen. Now that the roof ridge lines are visible, and a legal description for the view corridor can be written, staff is bringing the ordinance back for second reading. In response to the comments made at the November 12, 1991 work session, staff has added a section to the ordinance identifying the process the general public can use to propose a view corridor, and has added a section limiting the number of times and existing development proposal which encroaches into view corridors can be reviewed. Staff Recommendation: Approve Ordinance No. 13, Series of 1991, on second reading. 8:05 p.m. 4. Ordinance No. 41, Series of 1991, first reading, an ordinance Shelly Mello repealing and reenacting Ordinance No. 28, Series of 1991, to provide changes to Area A requirements of SDD No. 4 that concern the development plan for Millrace IV, Scenario I, a/k/a Cosgriff parcel; and setting forth details in regard thereto. (Applicants: East-West Partners/Commercial Federal Bank/Cascade Village) Action Reauested of Council: Approve/deny applicant's request to amend SDD No. 4. Backaround Rationale: The applicant is requesting to amend SDD No. 4 to change the approved plan for Millrace IV Scenario dwelling units and the proposed GRFA to 10,460 sq. ft. There are other changes to the existing plan regarding site planning and landscaping which are detailed in the PEC memo dated October 28, 1991. On November 5, 1991, Council reviewed the item at work session and, in general, felt the proposal was positive. No action was taken at that time. On October 28, 1991, the PEC voted to recommend approval of the project by a vote of 6-0 with additional conditions. Staff Recommendation: Staff recommends approval of the request with the conditions as listed in the memo dated October 28, 1991. 8:35 p.m. 5. Ordinance No. 46, Series of 1991, first reading, an ordinance Steve Thompson amending the Plan Document of the Town of Vail Employees' Pension Plan; and setting forth details in regard thereto. Action Reauested of Council: Approve or deny Ordinance No. 46, Series of 1991, on first reading. Backaround Rationale: In order to authorize deductions from seasonal employee wages earnings to participate in the Town of Vail's Pension Plan, an amendment to the Town's Pension Plan is required. Staff Recommendation: Approve Ordinance No. 46, Series of 1991, on first reading. 2 ''k, c" ~ 8:50 p.m. 6. Resolution No. 20, Series of 1991, a resolution authorizing. Steve Thompson the Town to invest its surplus funds with other government entities in JEFFTRUST; and setting forth details in regard thereto. Action Requested of Council: Approve/deny Resolution No. 20, Series of 1991, on second reading. Backaround Rationale: JEFFTRUST is a local government investment pool, similar COLO Trust, the investment pool we use now. JEFFTRUST is a legal investment for the Town. Staff Recommendation: Approve Resolution No. 20, Series of 1991, on second reading. 9:10 p.m. 7. Resolution No. 22, Series of 1991, a resolution approving the Mike Mollica Streetscape Master Plan for the Town of Vail; and setting forth details in regard thereto. Action Requested of Council: Approve/deny/modify Resolution No. 22, Series of 1991. Backaround Rationale: The Planning and Environmental Commission, at their October 28, 1991 public hearing, unanimously recommended approval of the adoption of the Streetscape Master Plan by a vote of 6-0-0. Staff Recommendation: Approve Resolution No. 22, Series of 1991. fib D n C'a (,/~'!c i~ C~~,~~~~~ , 9:25 p.m. 8. Adjournment. C:~AGENDA.TCE 3 l~ ORDINANCE NO. 43 Series of 1991 AN ORDINANCE AMENDING CHAPTER 18.04, DEFINITIONS, OF THE MUNICIPAL CODE OF THE TOWN OF VAIL BY THE ADDITION OF SECTION 18.04.277, SETTING FORTH A DEFINITION FOR PLANT PRODUCTS; BY THE ADDITION OF SECTION 18.04.289, SETTING FORTH A DEFINITION FOR "SEASONAL PLANT PRODUCT BUSINESS"; AMENDING SECTION 18.30.030, HEAVY SERVICE DISTRICT CONDITIONAL USES OF THE MUNICIPAL CODE OF THE TOWN OF VAIL BY THE ADDITION OF PARAGRAPH T, SEASONAL PLANT PRODUCT BUSINESS, AND SETTING FORTH DETAILS IN REGARD THERETO. WHEREAS, the Town Council is of the belief that the business of selling certain types of plant products on a seasonal basis is an acceptable conditional use in the Heavy Service Zone District; and WHEREAS, on October 28, 1991, at its regularly scheduled meeting of the Planning and Environmental Commission, recommended approval of the amendment by a vote of 6-0. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO THAT: Section 1 Chapter 18.04, Definitions, of the Municipal Code of the Town of Vail is hereby amended by the addition of Section 18.04.277, Plant Products, to read as follows: 18.04.277 - "Plant products" means fertilizers and plant seeds packaged in quantities weighing not more than 25 pounds, and trees, shrubs, bedding plants, ground cover and Christmas trees and wreaths. Section 2 Chapter 18.04, Definitions, of the Municipal Code of the Town of Vail is hereby amended by the addition of Section 18.04.289 to read as follows: 18.04.289 - "Seasonal Plant Products Business" means any person, corporation, company or partnership which sells any plant products, as defined in Section 18.04.277. A seasonal plant product business shall only operate as a conditional use in zone districts where it is allowed. A seasonal plant products business shall be entitled to not more than two permits per lot for any one year, and each permit shall not exceed 60 consecutive days each. Whenever a seasonal plant products business is not in operation, all structures, fixtures, materials for sale and equipment relating to the business shall be removed from the site or location of operation within a period not to exceed 72 hours. 1 Section 3 Section 18.30.030, Heavy Service Conditional Uses, of the Municipal Code of the Town of Vail is hereby amended by the addition of Paragraph T to read as follows: T -Seasonal Plant Product Business. Section 4 If any part, section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid, such decision shall not effect 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. Section 5 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. Section 6 The repeal or the repeal and reenactment of any provision of the Vail Municipal Code 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 proceeding as commenced under of 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. Section 7 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. INTRODUCED, READ ON FIRST READING, APPROVED AND ORDERED PUBLISHED ONCE IN FULL, this Stn day of November , 1991. A public hearing shall be held hereon on the i9 day of November , 1991, at the regular meeting of the Town Council of the Town of Vail, Colorado, in the Municipal Building of the Town. Kent R. Rose, Mayor ATTEST: Pamela A. Brandmeyer, Town Clerk 2 READ AND APPROVED ON SECOND READING AND ORDERED PUBLISHED this day of , 1991. Kent R. Rose, Mayor ATTEST: Pamela A. Brandmeyer, Town Clerk 3 u e~~ ORDINANCE NO. 42 - m SERIES OF 1991 ' AN ORDINANCE AUTHORIZING THE ISSUANCE OF TOWN OF VAIL, COLORADO SALES TAX REVENUE BONDS, SERIES 1991; PROVIDING THE FORM, TERMS AND CONDITIONS OF THE BONDS, THE MANNER AND 1 ~KMS OF ISSUANCE, THE MANNER OF EXECUTION, THE METHOD OF PAYMENT AND THE SECURITY THEREFOR; PLEDGING A PORTION OF THE SALES TAX PROCEEDS OF THE TOWN AND THE NET REVENUES DERIVED FROM THE PARKING FACILITY FOR THE PAYMENT OF SAID BONDS; PROVIDING CERTAIN COVENANTS AND OTHER DETAILS AND MAI{ING OTHER PROVISIONS CONCERNING THE BONDS AND THE DESIGNATED SALES TAX REVENUES AND NET REVENUES; RATIFYING ACTION PREVIOUSLY TAKEN ' AND APPERTAINING THERETO; AND REPEALING ALL ORDINANCES IN CONFLICT HEREWITH. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO: Section 1. Definitions. Terms used in this Ordinance shall have the meariings specified in this section for all purposes of this Ordinance and of any ordinance amendatory hereof or supplemental hereto, or relating hereto, and of any instrument or document appertaining hereto, except where the context by clear implication herein otherwise requires. All definitions include the singular and plural and include all genders. Certain terms are parenthetically defined elsewhere herein. "Additional Bonds" means the one or more series of bonds or other securities or obligations authorized to be issued by the Town pursuant to Section 17 hereof and having a lien on the Pledged Revenues on a parity with the lien of the 1991 Bonds. "Bond Fund" means the fund by that name created by the 1989 Ordinance. "Bond Insurer" means Municipal Bond Investors Assurance Corporation. "Bond Insurance Policv" means the municipal bond insurance policy issued by the Bond Insurer guaranteeing the payment of principal and interest on the 1991 Bonds. -1- ~i "Bond Reserve Insurance Policy" means any insurance policy, surety bond, irrevocable letter of credit or similar instrument deposited in or credited to the Reserve Fund in lieu of or in partial substitution for moneys on deposit therein. The issuer providing any such Bond Reserve Insurance Policy shall be an issuer which has been then currently assigned an AAA rating or a comparable rating by Moody's Investors Service, Inc., Standard & Poor's Corporation or their successors. "Bonds" means the 1989 Bonds, 1991 Bonds and any Outstanding Additional Bonds. "Business Dav" means a day on which banks located in the cities in which the principal offices of each of the Paying Agent and the Bond Insurer are not required or authorized to be closed and on which the New York Stock Exchange is not closed. "Charter" means the Home Rule Charter of the Town, including all amendments thereto prior to the date hereof. "Commercial Bank" means any depository for public funds permitted by the laws of the State for political subdivisions of the State which has a capital and surplus of $10,000,000 or more, and which is located within the United States. _ "Construction Fund" means the fund created by Section 13 hereof. "Fiscal Year" means the twelve months commencing on the first day of January of any calendar year and ending on the thirty-first day of December of such calendar year or such other twelve month period as may from time to time be designated by the Town Council as the Fiscal Year of the Town. "General Operating Expenses" means all reasonable current expenses, paid or accrued, of operating, maintaining and repairing the Parking Facilities. The term includes, without limitation, legal and incidental expenses of the various administrative departments of the Town directly or indirectly related and reasonable allocable to the administration of the Parking Facilities, insurance premiums, the reasonable charges of any paying agent, trustee or depository bank, contractual services, professional services required by this Ordinance, salaries and administrative expenses, labor, and the costs incurred by the Town in the Gross Revenues. The term does not include an allowance for de reciation, collection of y p -2- SENT BY~Xerox Telecopier 7021 ?11-15-51 8~07AM 3032880940 3034792157;# 4 any coats of reconstruction, imp.~~..ment, eatensian ar betterment, a~? accumulation of reserves for capital replacements, any reserves for ,~~~.G~aon, maintenance. or repair of the Parking Facilities, any a110wsnce far tine redemption o! any bond or other se.....::~ evidenaag a loan or the papmeat of ear interest thereon, and any legal 1iab~ity not basod oa eoatract "~,n,,...ental Obl° tAeans any of the fvllnadng which are aoncallable and which at the time of investment are .1~1 investments under tho laws of the State for the moneys proposed to be invested therein: (a) Airert n.....,.~t Obligations of, ar obIigatioas the r~:,~,~~,mt of principal of and interest o® which are oncoaditionally guaranteed by, the United States of America; (b) Bonds, debentwes, notes or other evidences of indebtedness issued or guaranteed by etry of the following:" Export-Import Bask of the United States; Federal Financing Bank;, or (c) EvideACes of owriershig interests in obligations descn'bed in paragraph (a) or (b} above. "C3rnss Revenues" means aIl income and revenues derived directly or indirectly from the operation of or otherwise relating to the Parlang Facilities, including, without limitation, any fee, rate yr other charge ass~scd against a~? persona fair the pr~r~cge of using or othemise relating to the Parking Fac~itics. "I_}gQ~e Fund" means the special fund by that name created by the 1989 Ordinance. -3- 1 f • ~ 1 t "Insurance Paving Agent" means Citibank, N.A., or its successors under the Policy. "Maximum Annual Debt Service Requirement" means the maximum amount of all required payments of principal and interest on the Bonds which will become due in any Fiscal Year. For the purpose of Section 17 hereof only, Maximum Annual Debt Service Requirement shall also include the principal and interest on the 1985 Bonds until the 1985 Bonds are paid or defeased. "Net Revenues" means the Gross Revenues less General Operating Expenses. "1985 Bonds" means the Town's outstanding General Obligation Refunding Bonds, 1985, dated as of November 15, 1985. "1985 Ordinance" means Ordinance No. 23, Series of 1985, as amended by Ordinance No. 29, Series of 1985. "1989 Bonds" means the Town's Sales Tax Revenue Bonds, Series 1989. "1989 Bond Ordinance" means Ordinance No. 29, Series of 1989. "1991 Bonds" means the Town's Sales Tax Revenue Bonds, Series 1991. "Ordinance" means this Ordinance of the Town, which provides for the issuance and delivery of the 1991 Bonds. "Outstanding" means, as of any date of calculation, all Bonds theretofore executed, issued and delivered by the Town except: (1) Bonds theretofore cancelled by the Town, Registrar or Paying Agent, or surrendered to the Town, Registrar or Paying Agent for cancellation; (2) Bonds in lieu of or in substitution for which other Bonds shall have been executed, issued and delivered by the Town and authenticated by the Registrar unless proof satisfactory to the Registrar is presented that any such Bonds are duly held by the Lawful registered owners thereof; or (3) Bonds deemed to have been paid as provided in Section 20 hereof. "Owner" or "registered owner" shall mean the registered owner of any 1991 Bond as shown on the registration books kept by the Registrar. -4- "Parlcin~ Facilities" means all existing parking facilities, including, but not limited to, all parking facilities constructed, otherwise acquired and equipped with the proceeds of the 1989 Bonds, and all future parking facilities operated by the Town, which facilities include all improvements, extensions, enlargements, additions or betterments to, or replacements of. "Pavine AEent" means .Central Bank National Association, Denver, Colorado, being the agent for the Town for the payment of the 1991 Bonds and interest thereon, or its successors and assigns. "Permitted Investment" means any investment shown on the list attached hereto as Exhibit I to the extent permitted by the Charter and Ordinances of the Town. "Person" means any individual, firm, partnership, corporation, company, association, joint-stock association or body politic; and the term includes any trustee, receiver, assignee or other similar representative thereof. "Pledged Revenues" means: (i) the revenues derived from the Pledged Sales Tax; (ii) any additional taxes (other than a general ad valorem tax), funds or revenues which the Town hereafter pledges to the payment of Bonds; (iii) the Net Revenues; (iv) proceeds of the Bonds or other legally available moneys deposited into and held in the Bond Fund and the Reserve Fund; and (v) interest or investment income on the Income Fund, the Bond Fund and the Reserve Fund; all to the extent that such moneys are at any time required by Section 14 hereof to be deposited into and held in the Income Fund, and the Bond Fund and the Reserve Fund. "Pledged Sales Tax" means that one-half of the proceeds of the Sales Tax which is also pledged to the payment of the 1985 Bonds and the 1989 Bonds. "Pledged Sales Tax" does not include incremental sales taxes which are or may be pledged to the payment of the bonds pursuant to an urban renewal plan as defined in 31-25-103(x), C.R.S or a plan of development as defined in 31-25-802 (6.4) C.R.S. "Pledged Sales Tax" does not include amounts withheld by retailers and vendors to cover their expenses in collecting and remitting -5- the Pledged Sales Tax, and Pledged Sales Tax does not include amounts collected by the Town and subsequently determined, pursuant to the applicable Sales Tax Ordinances, to be subject to valid claims for refunds. "Pledged Sales Tax" does not include the proceeds of any increase in the Sales Tax which may be approved in the future, unless such increase is expressly pledged by the Town. "Pledged Sales Tax" does include one-half of the proceeds derived by the Town from any legally available tax or taxes or fees (other than a general ad valorem tax) which replace or supersede the Pledged Sales Tax, regardless of whether such tax or taxes or fees are imposed by the Town or the State or other political subdivision thereof. "Policv" means the Financial Guaranty Insurance Policy provided by the Bond Insurer with respect to the Bonds. . "Preliminary Official Statement" means the Preliminary Official Statement dated November 7, 1991. "Project" means any public improvement or equipment which the Town is legally authorized to acquire, construct or finance. "Purchase Contract" means the Purchase Contract between the Town and the Purchaser dated November 19, 1991. "Purchaser" means George K. Baum & Company, Kirchner Moore Division. "Rebate Fund" means the fund by that name created by the 1989 Ordinance. "Registrar" means Central Bank National Association, Denver, Colorado, being the agent for the Town for the registration, transfer and exchange of the 1991 Bonds, or its successors. "Registrar Agreement" means the Registrar Agreement between the Town and the Registrar dated as of November 1, 1991. "Regular Record Date" means the fifteenth day of the calendar month next preceding each interest payment date for the 1991 Bonds (other than a special interest payment date hereafter fixed for the payment of defaulted interest). "Reserve Fund" means the fund by that name created by the 1989 Ordinance. -6- "Reserve Fund Requirement" means an amount equal to 10% of the orinciual amount of the Outstanding, Bonds plus an amount equal to all investment earnings on the Reserve Fund; provided that the Reserve Fund Requirement shall not exceed the Maximum Annual Debt Service Requirement. "Sales Tax" means the tax upon the sale and use of goods and services which is currently being levied by the Town pursuant to the Sales Tax Ordinances and any future or amended tax levied by the Town as a sales and use tax. "Sales Tax Ordinances" means the ordinances adopted by the Town Council of the Town for the purpose of adopting and enforcing the Sales Tax and which are in effect on the date of this Ordinance and as later amended or supplemented. "Special Record Date" means a special date fixed to determine the names and addresses of registered owners for purposes of paying interest on a special interest payment date for the payment of defaulted interest, all as further provided in Section 6 hereof. "State" means the State of Colorado. 'Tax Code" means the Internal Revenue Code of 1986, as amended. 'Town" means the Town of Vail, Colorado. 'Town Council" means the Town Council of the Town or any successor in functions thereto. "Trust Bank" means a Commercial Bank which is authorized to exercise and is exercising trust powers. Section 2. Recitals. A. The Town is a municipal corporation duly organized and existing under the Town's Charter adopted pursuant to Article XX of the Constitution of the State of Colorado. B. Section 10.6 of the Charter permits the Town to issue securities made payable solely out of the proceeds of any sales taxes, or from any portion thereof, or solely from net revenues derived from the operation of an income-producing project or any combination, of sales taxes and net revenues without an election. -7- 0 1 C. The Town imposes a Sales Tax pursuant to Section-11.1 of the Charter and the Sales Tax Ordinances. D. The Town has pledged one-half of the revenues from the Sales Tax to the payment of the 1985 Bonds and, on a subordinate basis, to the 1989 Bonds. E. Pursuant to the 1985 Ordinance, the Town issued the 1985 Bonds and agreed to pledge and set aside the Pledged Sales Tax to pay the principal of and interest on the 1985 Bonds, provided that the Pledged Sales Tax could also be pledged and used for the payment of the principal of and interest on other additional general obligation bonds of the Town which may be issued thereafter on a parity with or subordinate to the 1985 Bonds with respect to the Pledged Sales Tax. The 1985 Ordinance also provided that, to the extent that the principal of and interest on the 1985 Bonds and any additional parity general obligation bonds are fully provided for in any Fiscal Year by tax revenues and other moneys legally available therefore, the Town is authorized to use such excess Pledged Sales Tax for other purposes, including, but not limited to, payment of special non-general obligation bonds of the Town which may not be issued on a parity with the 1985 Bonds, but only may be issued in a subordinate and inferior position to the claim of the 1985 Bonds to the Pledged Sales Tax. F. Except for the 1985 Bonds, the: 1989 Bonds, and bonds or obligations which have been paid or defeased as of the date of issuance of the 1991 Bonds, the Town has never pledged the Pledged Sales Tax. to the payment of any bonds or for any purpose with the result that the Pledged Sales Tax may riow be pledged (with a lien which is subordinate to the Iien for the 1985 Bonds but on a parity with the 1989 Bonds) lawfully and irrevocably for the payment of the 1991 Bonds. G. Except for the 1989 Bonds, the Town has never pledged the Net Revenues derived from the Parking Facilities with the result that the Net Revenues may now be pledged (with a lien which is on a parity with the lien of the 1989 Bonds) lawfully and irrevocably for the payment of the 1991 Bonds. H. The Town has received a propo:;al from the Purchaser for the purchase of the 1991 Bonds for the purpose of defraying in whole or in part the costs of the Project. -8- 0 I. There have been presented to the Council the proposed forms of the following documents: the Purchase Contract; the Registrar Agreement; and the Preliminary Official Statement. J. The Town Council is desirous of causing the 1991 Bonds to be issued, of authorizing and directing the application of the proceeds thereof as set forth herein, and of providing security for the payment thereof, all in the manner hereinafter set forth. Section 3. Ratification. All actions heretofore taken (not inconsistent with the provisions of this Ordinance) by the Town Council and other officers of the Town in the imposition and collection of the Sales Tax or the Gross Revenues, in providing the Project, and in selling and issuing the 1991 Bonds for those purposes are, ratified, approved and confirmed. Section 4. Authorization of Proiect. The Project is hereby authorized at a cost of not exceeding ~ 2.555,000 (excluding costs to be paid from sources other than the original proceeds of the 1991 Bonds). Section 5. Authorization of the 1991 Bonds. There are hereby authorized to be issued fully registered sales tax revenue securities of the Town, to be designated "Town of Vail, Colorado, Sales Tax Revenue Bonds, Series 1991" in the aggregate principal amounts of $21555 000, to be payable and collectible, both as to principal and interest, from the Pledged Revenues. Section 6. 1991 Bond Details. The 1991 Bonds shall be issued in fully registered form (i•e•, registered as to both principal and interest), shall be dated as of November 1, 1991, shall be issued in the denomination of $5,000 or any integral multiple thereof (provided that no 1991 Bond may be in a denomination which exceeds the principal coming due on any maturity date, and no individual 1991 Bond will be issued for more than one maturity) and shall be numbered in such manner as the Registrar may determine. The 1991 Bonds shall bear interest from their dated date until maturity at the rates per annum shown below, payable semiannually on June 1 and December 1 in each year, commencing on June 1, 1992, except that any 1991 Bond which is reissued upon transfer, exchange or other replacement shall bear interest from the most recent interest payment date to which interest -9- has been paid or duly provided for, or if no interest has been paid, from the date of the 1991 Bonds. The. 1991 Bonds shall mature on December 1 in each of the years and amounts hereinafter designated, as follows: Interest Maturity Principal Rate Date Amount JPer Annum 1992 $ = 60,000 4.50%a 1993 75,000 4.70% 1994 _ 80.000 _ _ 4.90%0 1995 85,000 5.10% 1996 - .85.000 - _ _..5.30% _ _ 1997 90,000 5.50% 1998 - - ~ ..95,000 - ~ - - 5.70% 1999 100.000 5.80% . 2000 110.000 5.90% 2001 115 000 6.00% 2002 120.000 6.10% 2004 270,000 6.30% 2006 300.000 6.50% 2011 9701000 6.50% The principal of any 1991 Bond shall be payable to the registered owner thereof as shown on the registration records kept by the Registrar, upon maturity thereof and upon presentation and surrender at the Paying Agent. If any 1991 Bond shall not be paid upon such presentation and surrender at or after maturity, it shall continue to draw interest at the same interest rate borne by said 1991 Bond until the principal thereof is paid in full. Payment of interest on any 1991 Bond shall be made by check or draft mailed by the Paying Agent, on or before each interest payment date (or, if such interest payment date is not a business day, on or before the next succeeding business day), to the registered owner thereof at the address shown on the registration records kept by the Registrar at the close of business on the Regular Record Date for such interest payment date; but any such interest not so timely paid or duly provided for shall cease to be payable to the person who is the registered owner thereof at the close of business on the Regular Record Date and s':all be payable to the person who is the registered owner thereof at the close of business on a -10. Special Record Date for the payment of any such defaulted interest. Such Special Record Date shall be fixed by the Registrar whenever moneys become available for payment of the defaulted interest, and notice of the Special Record Date shall be given to the registered owners of the 1991 Bonds not less than ten days ,prior to the Special Record Date by first-class mail to each such registered owner as shown on the Registrar's registration records on a date selected by the Registrar, stating the date of the Special Record Date and the date fixed for the payment of such defaulted interest. The Paying Agent may make payments of interest on any 1991 Bond by such alternative means as may be mutually agreed to between the owner of such 1991 Bond and the Paying Agent (provided, however, that the Town shall not be required to make funds available to the Paying Agent prior to the interest payment dates stated in this Section). All such payments shall be made in lawful money of the United States of America without deduction for the services of the Paying Agent or Registrar. Section 7. Prior Redemption. A. 1991 Bonds maturing on or before December 1, ~ 2001, are not subject to prior redemption. 1991 Bonds maturing on and after December 1, ~ 2002, shall be subject. to prior redemption, at the option of the Town, in whole, or in part, in integral multiples of $5,000, from such maturities as are selected by the Town, and if less than all of the Bonds of a maturity are to be redeemed, by lot within a maturity in such manner as the Registrar may determine, on December 1, ~ 2001, or on any date thereafter, at ~ a redemption price egual_ to 100% of the principal amount so redeemed plus accrued interest to the redemption dates. B. 1991 Bonds maturing on December 1, 2004 are subject to mandatory sinking fund redemption at a price equal to the principal amount thereof plus accrued interest to the redemption date. Such 1991 Bonds subject to mandatory sinking fund redemption shall be selected by lot in such manner as the Registrar shall determine (giving proportionate weight to the 1991 Bonds maturing on December 1. 2004 in denominations lareer than $5,000). -11- _ As and for a sinking fund for the redemption of the 1991 Bonds maturin~oon December 1,~ 2004y the Town will deposit in the Bond Fund on or before December 1 2003 a sum together with other monevs available in the Bond Fund is sufficient to redeem (after ' credit _as provided below) the following principal amounts of the 1991 Bonds maturing on, December 1. 2004: Principal Year Amount 2003 X130,000 The remainine $140000 of the 1991 Bonds maturing on December 1, 2004 shall be paid upon presentation and surrender at maturity unless redeemed pursuant to optional redemption Qrior, to.,maturity~On or before the thirtieth, day prior to each such sinking fund pavment date, the Registrar shall proceed to call the 1991 Bonds indicated above for anv 1991 Bond or Bonds issued to replace such ]1991 Bondsl for redemption from such sinking fund on the next December 1. and give notice of such call without further instruction or notice from the Town. 1991 Bonds maturing on December 1. 2006 are subiect to mandatory sinking fund redemption at a price equal to the principal amount thereof plus accrued interest to the redemption date. Such 1991 Bonds subiect to mandat~rv sinking fund redemption shall be selected by lot in such manner as the Registrar shall determine (giving rp o~ortionate weight to the 1991 Bonds maturing on December 1. 2006 in denominations larger than X000). As and for a sinking fund for the redemption of the 1991 Bonds maturing on December 1, 2006, the Town will deposit in the Bond Fund on or before December 1. 2005. a sum together with other monevs available in the Bond Fund is sufficient to redeem (after credit as provided belowl the following principal amounts of the 1991 Bonds maturing on December 1, 2006: Principal Year Amount 2005 X145,000 -12- ' The remains $155.000 of the 1991 Bonds maturing on D:.,.~~„~~ber 1. 2006 shall be raid upon presentation and surrender at maturity unless redeemed pursuant _ to optional redemption prior to maturiri. On or before the thirtieth_ day prior to each such sinking fund pavment date._the Registrar shall proceed to call the 1991 Bonds indicated above (or any 1991 and or Bonds issued to replace such 1991 _ _ _ _ _ _ _ _ _ Bondsl for redemption from such sinkinP fund on the next December 1. and Pive notice of such call without further instruction or notice from the Town. 1991 Bonds maturing on December 1, 2011 are subject to mandatory sinking fund redemption at a price equal to the principal amount thereof plus accrued interest to the redemption date. 1991 Bonds subject to mandatory sinking fund redemption shall be selected by lot in such manner as the Registrar shall determine (giving proportionate weight to the 1991 Bonds in denominations larger than $5,000). As and for a sinking fund for the redemption of the 1991 Bonds maturing on December 1, 2011, the Town will deposit in the Bond Fund on or before December 1, 2007, and on or before each December 1 thereafter through December 1, ~ 2010, a sum together with other moneys available in the Bond Fund is sufficient to redeem (after credit as provided below) the following principal amounts of the 1991 Bonds maturing on December 1, 2011: Principal - Year Amount 2007 $170,000 2008 180,000 2009 190,000 . 2010 205,000 The remaining ~ $225,000 of the 1991 Bonds maturing on December 1, 2011 shall be paid upon presentation and surrender at maturity unless redeemed pursuant to optional redemption prior to maturity. On or before the thirtieth day prior to each such sinking fund payment date, the Registrar shall proceed to call the 1991 Bonds indicated above (or any 1991 Bond -13- or Bonds issued to replace such 1991 Bonds) for redemption from such sinking fund on the next December 1, and give notice of such call without further instruction or notice from the Town. At its option, to be exercised on or before the sixtieth day next preceding any sinking fund redemption date, the Town may (a) deliver to the Registrar for cancellation 1991 Bonds subject to mandatory sinking fund redemption on such date in an aggregate principal amount desired or (b) receive a credit in respect of its sinking fund redemption obligation for any 1991 Bonds subject to mandatory sinking fund redemption on such date which prior to said date have been redeemed (other wise than through the operation of the sinking fund) and cancelled by the Registrar and not theretofore applied as a credit against any sinking fund redemption obligation. Each 1991 Bond so delivered or previously redeemed will be credited by the Registrar at the principal amount thereof on the obligation of the Town on such sinking fund redemption date and the principal amount of 1991 Bonds to be redeemed by operation of such sinking fund on such date will be accordingly reduced. The Town will on or before the sixtieth day next preceding each sinking fund redemption date furnish the Registrar with its certificate indicating whether or .not and to what extent the provisions of (a) and (b) of the preceding sentence are to be availed with respect to such sinking fund payment. Failure of the Town to deliver such certificate shall not affect the Registrar's duty to give notice of sinking fund redemption as provided in this paragraph B. C. In the case of 1991 Bonds of a denomination larger than $5,000, a portion of such 1991 Bond ($5,000 or any integral multiple thereof) may be redeemed, in which case the Registrar shall, without charge to the owner of such 1991 Bond, authenticate and issue a replacement 1991 Bond or Bonds for the unredeemed portion thereof. D. Except as provided in paragraph B of this Section, the Director of Finance of the Town shall give written instructions concerning any prior redemption to the Registrar at least sixty days prior to such redemption date. Notice of redemption shall be given by the Registrar in the name of the Town, by sending a copy of such notice by certified, first-class postage prepaid mail, not more than sixty nor less than thirty days prior to the redemption date, to the Purchaser, and to each registered owner of any 1991 Bond, -14- all or a portion of which is called for prior redemption, at his address as it last appears on the registration records kept by the Registrar. Failure to give such notice by mailing to the registered owner of any 1991 Bond or to the Purchaser of any defect therein, shall not affect the validity of the proceedings for the redemption of any other 1991 Bonds, Such notice shall identify the 1991 Bonds or portions thereof to be redeemed (if less than all are to be redeemed) and the date fixed for redemption, and shall further state that on such redemption date the principal amount thereof and the designated premium thereon, if any, will become due and payable at the Paying Agent, and that from and after such date interest will cease to accrue. Accrued interest to the redemption date will be paid by check or draft mailed to the registered owner (or by alternative means if so agreed to by the Paying Agent and the registered owner). Notice having been given in the manner hereinabove provided, the 1991 Bond or Bonds so called for redemption shall become due and payable on the redemption date so designated; and upon presentation and surrender thereof at the Paying Agent, the Town will pay the principal of and premium on, if any, 1991 Bond or Bonds so called for redemption. Section 8. Special Oblieations. All of the 1991 Bonds, together with the interest accruing thereon, shall be payable and collectible solely out of the Pledged Revenues, which are hereby irrevocably so pledged; the owner or owners thereof may not look to any general or other fund for the payment of principal and interest on the 1991 Bonds, except the designated special funds pledged therefor; and the 1991 Bonds shall not constitute an indebtedness nor a debt within the meaning of any applicable charter, constitutional or statutory provision or limitation; nor shall they be considered or held to be general obligations of the Town; and each of the 1991 Bonds herein authorized to be issued shall recite on its . face that it is payable and collectible solely from the Pledged Revenues, and that the owners thereof may not look to any general or other fund for the payment of the principal and interest on the 1991 Bonds. Section 9. NeEOtiability. Subject to the registration provisions hereof, the 1991 Bonds shall be fully negotiable and shall have all. the qualities of negotiable paper, and the owner or owners thereof shall possess all rights enjoyed by the holders. or owners of - -15- negotiable instruments under the provisions of the Uniform Commercial Code-Investments Securities. The principal of and interest on the 1991 Bonds shall be paid, and the 1991 Bonds shall be transferable, free from and without regard to any equities between the Town and the original or any intermediate owner of any 1991 Bonds or any setoffs or crossclaims. Section 10. Execution. The 1991 Bonds shall be executed in the name and on behalf of the Town by the signature of the Mayor, shall be sealed with a manual or facsimile impression of the seal of the Town and attested by the signature of the Town Clerk. Each 1991 Bond shall be authenticated by the manual signature of an authorized officer or employee of the Registrar as hereinafter provided. The signatures of the Mayor and the Town Clerk may be by manual or facsimile signature, The 1991 Bonds bearing the manual or facsimile signatures of the officers in office at the time of the authorization thereof shall be the valid and binding obligations of the Town (subject to the requirement of authentication by the Registrar as hereinafter provided), notwithstanding that before the delivery thereof and payment therefor or before the issuance of the 1991 Bonds upon transfer or exchange, any or all of the persons whose manual or facsimile signatures appear thereon shall have ceased to fill their respective offices. The Mayor and the Town Clerk shall, by the execution of a signature certificate pertaining to the 1991 Bonds, adopt as and for their respective signatures any facsimiles thereof appearing on the 1991 Bonds. At the time of the execution of the signature certificate, the Mayor and the Town Clerk may each adopt as and for his or her facsimile signature the facsimile signature of his or her predecessor in office in the event that such facsimile signature appears upon any of the 1991 Bonds. No 1991 Bond shall be valid or obligatory for any purpose unless the certificate of authentication, substantially in the form hereinafter provided, has been duly manually executed by the Registrar. The Registrar's certificate of authentication shall be deemed to have been duly executed by the Registrar if manually signed by an authorized officer or employee of the Registrar, but it shall not be necessary that the same officer or employee sign the certificate of authentication on al] of the 1991 Bonds issued hereunder. By authenticating any of the 1991 Bonds initially delivered pursuant to this Ordinance, the Registrar shall be deemed to have assented to the provisions of this Ordinance. -16- Section 11. Registration. Transfer and Exchange. A. Records for the registration and transfer of the 1991 Bonds shall be kept by the Registrar, which is hereby appointed by the Town as registrar (i.e., transfer agent) for the 1991 Bonds. Upon the surrender for transfer of any 1991 Bond at the Registrar, duly endorsed for transfer or accompanied by an assignment duly executed by the registered owner or his attorney duly authorized in writing, the Registrar shall enter such transfer on the registration records and shall authenticate and deliver in the name of the transferee or transferees a new 1991 Bond or Bonds of the same series, of a like aggregate principal amount and of the same maturity, bearing a number or numbers not previously assigned. 1991 Bonds may be exchanged at the Registrar for an equal aggregate principal amount of 1991 Bonds of the series and the same maturity of other authorized denominations. The Registrar shall authenticate and deliver a 1991 Bond or Bonds which the registered owner making the exchange is entitled to receive, bearing a number or numbers not previously assigned. The Registrar may impose reasonable charges in connection with such exchanges and transfers of 1991 Bonds, which charges (as well as any tax or other governmental charge required to be paid with respect to such exchange or transfer) shall be paid by the registered owner requesting such exchange or transfer. B. The Registrar shall not be required to transfer or exchange (1) any 1991 Bond or portion thereof during a period beginning at the opening of business fifteen days before the day of the mailing of notice of prior redemption as herein provided and ending at the close of business on the day of such mailing, or any 1991 Bond or portion thereof after the mailing of notice calling such 1991 Bond or any portion thereof for prior redemption, except for the unredeemed portion of the 1991 Bonds being redeemed in part. C. The person in whose name any 1991 Bond shall be registered on the registration records kept by the Registrar shall be deemed and regarded as the absolute owner thereof for the purpose of making payment thereof and for all other purposes; except as may be otherwise provided in Section 6 hereof with respect to payment of interest; and, subject to such exception, payment of or on account of either principal or interest on any 1991 Bond shall be made only to or upon the written order of the registered owner thereof -17- or his legal representative, but such registration may be~changed upon transfer of such 1991 Bond in the manner and subject to the conditions and limitations provided herein. All such payments shall be valid and effectual to discharge the liability upon such 1991 Bond to the extent of the sum or sums so paid. D. If any 1991 Bond shall be lost, stolen, destroyed or mutilated, the Registrar shall, upon receipt of such evidence, information or indemnity relating thereto as it and the Town may reasonably require, authenticate and deliver a replacement 1991 Bond or Bonds of a like aggregate principal amount and of the same maturity, bearing a number or numbers not previously assigned. If such lost, stolen, destroyed or mutilated 1991 Bond shal] have matured or is about to become due and payable, the Registrar may direct the Paying Agent to pay such 1991 Bond in lieu of replacement. E. The officers of the Town are authorized to deliver to the Registrar fully executed but unauthenticated 1991 Bonds in such quantities as may be convenient to be held in custody by the Registrar pending use as herein provided. F. Whenever any 1991 Bond shall be surrendered to the Paying Agent upon payment thereof, or to the Registrar for transfer, exchange or replacement as provided herein, such 1991 Bond shall be promptly cancelled by the Paying Agent or Registrar, and counterparts of . a certificate of such cancellation shall be furnished by the Paying Agent or Registrar to the Town. Section 12. Form of 1991 Bonds, Legal Opinion. Certificate and Reeistration Panel. The 1991 Bonds, the registration panel and the legal opinion certificate to appear on the 1991 Bonds shall be substantially as follows (pro~rided that any portion of the 1991 Bond text may, with appropriate references, be printed on the back of the 1991 Bonds), with such omissions, insertions, endorsements, and variations as to any recitals of fact or other provisions as may be required by the circumstances, be required or permitted by this Ordinance, or be consistent with this Ordinance and necessary or appropriate to conform to the rules and requirements of any governmental authority or any usage or requirement of law with respect thereto: -18- (Form of Bond) UN r i ~D STATES OF AMERICA STATE OF COLORADO COUNTY OF EAGLE TOWN OF VAIL, COLORADO SALES TAX REVENUE BOND SERIES 1991 NO. R- $ INTEREST RATE MATURITY DATE DATED AS OF CUSIP % DECEMBER 1, NOVEMBER 1, 1991 REGISTERED OWNER: PRINCIPAL AMOUNT: T'he Town of Vail, in the County of Eagle and State of Colorado (the '"Town"), for value received, promises to pay to the registered owner specified above, or registered assigns, solely from the special funds provided therefor, the principal amount specified above, on the .maturity date specified above (unless called for earlier redemption), and to pay from said sources interest thereon on June 1 and December 1 of each year, commencing on June 1, 1992, at the interest rate per annum specified above, until the principal sum is paid or payment has been provided therefor. This bond will bear interest from the most recent interest payment date to which interest has been paid or provided for, or, if no interest has been paid, from the date of this bond. The principal of this bond is payable upon presentation and surrender hereof ~ to the Town's registrar and paying agent (the "Registrar" -19- or the "Paying Agent"), presently Central Bank National Association, in Denver, Colorado center at First Trust., N.A. in St. Paul. Minnesota. Interest on this bond at its onerat~ons „ ` . _ _ will be paid on or before each interest payment date (or, if such interest payment date is not a business day, on or before the next succeeding business day), by check or draft mailed to the person in whose name this bond is registered (the "registered owner") in the registration records of the Town maintained by the Registrar and at the address appearing thereon at the close of business on the fifteenth day of the calendar month next preceding such interest payment date (the "Regular Record Date"). Any such interest not so timely paid or duly provided for shall cease to be payable to the person who is the registered owner hereof at the close of business on the Regular Record Date and shall be payable to the person who is the registered owner hereof at the close of business on a Special Record Date for the payment of any defaulted interest. Such Special Record Date shall be fixed by the Registrar whenever moneys become available for payment of the defaulted interest, and notice of the Special Record Date shall be given to the registered owners of the bonds of the series of which this is one (the "Bonds") not less than ten days prior to the Special Record Date. Alternative means of payment of interest may be used if mutually agreed to. between the owner of. any Bond and the Paying Agent, as provided in the ordinance of the Town authorizing, the issuance of the Bonds (the "Bond Ordinance"). All such payments shall be made in lawful money of the United States of America without deduction for the services of the Paying Agent or Registrar. Bonds of the series of which this bond is a part (the "1991 Bonds") maturing on and after December 1, = 2002, are subject to prior redemption, at the option of the Town, in whole, or in part, in integral multiples of $5,000, from such maturities as are selected by the Town, and if less than all of the Bonds of a maturity are to be redeemed, by [ot within a maturity in such manner as the Registrar may determine, on December 1, 2001, or on any date thereafter, at ~ a redemption urice equal to 100°l0 of the principal so redeemed plus accrued interest to the redemption date*^ Bonds of the series of which this bond is a part maturing on December 1, 2004, December 1, 2006. and December 1, 2011._resnective~ are subject to mandatory sinking -20- fund redemption in the manner provided in the Bond Ordinance at a price equal to the principal amount thereof plus accrued interest to the redemption date. Bonds subiect to mandatory sinking fund redemptioq shall be selected for mandatory sinking fund redemption by lot in such manner as the Registrar shall determine (giving proportionate weight to Bonds in denominations larger than $5,000). ^ On or before the thirtieth day prior to each such sinking fund payment date, the Registrar will proceed to call the Bonds subiect to mandatory sinking fund redemption (or any Bond or Bonds issued to replace such Bonds) for redemption from on the next December 1, and give notice of such call. The Town is entitled to certain credits against its sinking fund redemption obligation in the manner and upon the conditions provided in the Bond Ordinance. In the case of redemption of Bonds of a denomination larger than $5,000, a portion of such Bond ($5,000 or any integral multiple thereof) may be redeemed, in which case the Registrar shall, without charge to the owner of such Bond, authenticate and issue a replacement Bond or Bonds for the unredeemed portion thereof. Redemption shall be made upon not more than sixty days and not less than thirty days mailed notice to the original purchasers and to each registered owner of. Bonds to be redeemed as shown on the registration records kept by the Registrar, in the manner and upon the conditions provided in the Bond Ordinance. The Bonds are issuable only as fully registered Bonds in denominations of $5,000 or any integral multiples thereof and are exchangeable for fully registered Bonds of the same maturity and series in equal aggregate principal amounts and in authorized denominations at the aforesaid office of the Registrar, but only in the manner, subject to the limitations and conditions, and upon payment of the charges provided in the Bond Ordinance. This Bond is fully transferable by the registered owner hereof in person or by his duly authorized attorney on the registration records kept by the Registrar upon surrender of this Bond together with a duly executed written instrument of transfer satisfactory to the Registrar. Upon such transfer a new fully registered bond of authorized denomination or denominations of the same series, aggregate principal amount and maturity will be issued to the transferee in exchange for this bond, subject to such terms and conditions and on -21- payment of the charges as set forth in the Bond Ordinance. The Town and the Registrar and Paying Agent may deem and treat the person in whose name this Bond is registered as the absolute owner hereof for the purpose of making payment and for all other purposes, except to the extent otherwise provided hereinabove and in the Bond Ordinance with respect to Regular and Special Record Dates for the payment of interest. The Registrar will not be required to transfer or exchange (i) any Bond or portion thereof during a period beginning at the opening of business fifteen days before the day of the mailing by the Registrar of notice of prior redemption and ending at the close of business on the day of such mailing, or (ii) any Bond or portion thereof after the mailing of notice calling such Bond or any portion thereof for prior redemption, except the unredeemed portion of Bonds being redeemed in part. . The 1991 Bonds are authorized for the purpose of defraying wholly or in part the costs of the Project (as defined in the Bond Ordinance), for the payment of costs and expenses incidental thereto and to the issuance of the Bonds, and for funding a reserve for the Bonds, all under the authority of and in full conformity with the Constitution of the State of Colorado and the Town Charter and pursuant to the Bond Ordinance duly adopted, published and made a law of the Town, all prior to the issuance of this bond. The Bonds do not constitute a debt or an indebtedness of the Town within the meaning of any applicable charter, constitutional or statutory provision or limitation, shall not be considered or held to be a general obligation of the Town, and are payable from, and constitute a pledge of, an irrevocable lien (but not necessarily an exclusive lien) on, all of the proceeds to be derived by the Town from the Pledged Sales Tax (as defined in the Bond Ordinance) and from any taxes which hereafter may be imposed by the Town in addition thereto or in substitution therefor, Net Revenues (as defined in the Bond Ordinance) of the Parking Facilities (as defined in the Bond Ordinance), any taxes, funds or revenues which the Town hereafter pledges to the payment of the Bonds, certain other moneys held in the Bond Fund and the Reserve Fund (as both such funds are defined in the Bond Ordinance), and investment income on certain funds, all to the extent that such moneys are at any time required to be deposited into and held in the Income Fund, the Bond Fund, and the Reserve -22- Fund created by, and as provided in, the Bond Ordinance, subject to certain exceptions and exclusions as provided in the Bond Ordinance (the "Pledged Revenues"). The Bonds constitute a pledge of, and an irrevocable lien (but not necessarily an exclusive lien) on all of the Pledged Revenues, on a parity with the lien of the Town's outstanding Sales Tax Revenue Bonds, Series 1989 (the "1989 Bonds"). The Bonds are equitably and ratably secured by a lien on the Pledged Sales Tax, but the Bonds only constitute an irrevocable and second and subordinate lien (but not necessarily an exclusive second lien) upon the Pledged Sales Tax, such lien being second and subordinate to the lien of the Town's outstanding General Obligation Bonds, 1985 (the "1985 Bonds"). In connection with the Pledged Sales Tax and as required by the ordinance which authorized the 1985 Bonds, the Town shall fully provide for the debt service, reserve account, and other requirements of the 1985 Bonds in any fiscal year and, only after such provision, may use excess Pledged Sales Taxes for the payment of the principal of and interest on the Series Bonds, by transferring such excess Pledged Sales Taxes to the Income Fund (as defined in the Bond Ordinance). The Bonds constitute an irrevocable and first lien (but not necessarily an exclusive first lien) upon the other Pledged Revenues except for the Pledged Sales Tax. Payment of the principal of and interest on this bond shall be made from, and as security for such payment there are irrevocably (and exclusively) pledged, pursuant to the Bond Ordinance, moneys deposited and to be deposited in a special fund of the Town (the "Bond Fund") into which fund the Town has covenanted under the Ordinance to pay from the Pledged Revenues, a sum sufficient, together with other moneys available in the Bond Fund therefor, to pay when due the principal of and interest on the 1989 Bonds, the 1991 Bonds and any Additional Bonds (as defined in the Bond Ordinance). In addition, there is irrevocably and exclusively pledged to the payment of the 1989 Bonds, the 1991 Bonds and any Additional Bonds (as defined in the Bond Ordinance) a reserve fund (the "Reserve Fund") which will be maintained as a reasonable reserve therefor. Except as otherwise specified in the Bond Ordinance, this Bond is entitled to the benefits of the Ordinance -23- equally and ratably both as to principal (and redemption price} and interest with all other Bonds issued and to be issued under the Bond Ordinance, to which reference is made for a description of the rights of the owners of the 1991 Bonds and the rights and obligations of the Town. This bond is payable from the Pledged Revenues, and the owner hereof may not look to any general or other fund of the Town for the payment of the principal of and interest on this bond except the Pledged Revenues. Reference is made to the Bond Ordinance for the provisions, among others, with respect to the custody and application of the proceeds of the 1991 Bonds, the receipt and disposition of the Pledged Revenues, the nature and extent of the security, the terms and conditions under which additional bonds payable from the Pledged Revenues may be issued, the rights, duties and obligations of the Town, and the rights of the owners of the Bonds; and by the acceptance of this bond the owner hereof assents to all provisions of the Bond Ordinance. The principal of and the interest on this bond shall be paid, and this bond is transferable, free from and without regard to any equities between the Town and the original or any intermediate owner hereof or any setoffs or cross-claims. This bond must be registered in the name of the owner as to both principal and interest on the registration records kept by the'Registrar in conformity with the provisions stated herein and endorsed herein and subject to the terms and conditions set forth in the Bond Ordinance. No transfer of this bond shall be valid unless made on the registration records maintained at the principal office of the Registrar by the registered owner or his attorney duly authorized in writing. The Bonds have been designated in the Bond Ordinance as "qualified tax-exempt obligations" for the purposes of Section 265(b)(3) of the Internal Revenue Code of 1986, as amended. It is further certified and recited that all the requirements of law have been fully complied with by the proper Town officers in the issuance of this bond. -24- This bond shall not be valid or obligatory for any purpose until the Registrar shall have manually signed the certificate of authentication herein. IN TESTIMONY WHEREOF, the Town Council of the Town of Vail has caused this bond to be signed and executed in its name with a manual or facsimile signature of the Mayor of the Town, and to be signed, executed and attested with a manual or facsimile signature of the Town Clerk, with a manual or facsimile impression of the seal of the Town affixed hereto, all as of the date specified above. (Manual or Facsimile Signature) Mayor (MANUAL OR FACSIMILE SEAL) Attest: (Manual or Facsimile Sienaturel Town Clerk (End of Form of Bond) -25- I (Form of Registrar's Certificate of Authentication) This is one of the Bonds described in the within-mentioned Bond Ordinance, and this Bond has been duly registered on the registration records kept by the undersigned as Registrar for such Bonds. CENTRAL BANK NATIONAL ASSOCIATION, as Registrar Date of Authentication By: and Registration: Authorized Officer or Employee (End of Form of Registrar's Certificate of Authentication) -26- (Form of Assignment) For value received, the undersigned hereby sells, assigns and transfers unto the within Bond and hereby irrevocably constitutes and appoints attorney, to transfer the same on the records of the Registrar, with full power of substitution in the premises. Dated: Signature Guaranteed: Address of transferee: Social Security or other tax identification number of transferee: NOTE: The signature to this Assignment must correspond with the name as written on the face of the within Bond in every particular, without alteration or enlargement or any change whatsoever. EXCHANGE OR TRANSFER FEES MAY BE CHARGED (End of Form of Assignment) -27- (Form of Legal Opinion Certificate) STATE OF COLORADO ) LEGAL OPIl~tION COUNTY OF EAGLE ) SS. CERTIFICATE TOWN OF VAIL ) I, the undersigned Town Clerk of the Town of Vail, in the County of Eagle and State of Colorado, do hereby certify that the following approving legal opinion of Sherman & Howard, Attorneys at Law, Denver, Colorado: [Insert text of legal opinion] is a true, perfect and complete copy of a manually executed and dated copy thereof on fife in the records of the Town in my off7ce; that a manually executed and dated copy of the opinion was forwarded to a representative of the original purchasers for retention in their records; and that the opinion was dated and issued as of the date of the delivery of and payment for the Bonds of the series of which this is one. IN WITNESS WHEREOF, I have caused to be hereunto set my manual or facsimile signature. (Manual or Facsimile Si~nature~ Town Clerk (End of Form of Lega[ Opinion Certificate) -28- Section 13. Delivery of 1991 Bonds and DISDOSItIOn of Proceeds. When the 1991 Bonds have been duly executed by appropriate Town officers and authenticated by the Registrar, the Town Manager shall cause the 1991 Bonds to be delivered, at one time or from time to time, to the Purchaser, on receipt of the agreed purchase price. The 1991 Bonds shall be delivered in such denominations as the Purchaser shall direct (but subject to the provisions of Section 6 hereof); and the Registrar shall initially register the 1991 Bonds in such name or names as the Purchaser shall direct. The proceeds of the 1991 Bonds, including without limitation the accrued interest thereon, shall be deposited promptly by the Town Manager and shall be accounted for in the following manner and are hereby pledged therefor, but the Purchaser of the 1991 Bonds or any subsequent Ovmer in no manner shall be responsible for the application or disposal by the Town or any of its officers of any of the funds derived from the sale: (i) All accrued interest, if any, received in respect of the 1991 Bonds shall be credited to the Bond Fund to be applied to the payment of the 1991 Bonds. (ii) An amount equal to $255,500 of the original principal amount of the 1991 Bonds as of the date of initial delivery shall be credited to the Reserve Fund. (iii) All remaining proceeds of the 1991 Bonds shall be credited to . the following special and separate account, hereby created and established, to be known as the '"Town of Vail, Colorado Sales Tax Revenue Bonds, Series 1991, Construction Fund," to be used, together with any other available moneys therefor, to pay the costs of the Project including costs incidental to the issuance of the 1991 Bonds. After payment of all costs of the Project, or after adequate provisions therefor is made, any unexpended balance in the Construction Fund shall be deposited in the Bond Fund and applied to the payment of the principal of and interest on the 1991 Bonds. -29- Section 14. Use of Monevs in Income Fund. A. Income Fund. So long as any Bonds shall be Outstanding, either as to principal or interest, the Pledged Revenues shall, upon receipt by the Town, be deposited. in a special and separate account, heretofore created and established by the 1989 Ordinance, known as the 'Town of Vail Income Fund." The following payments shall be made from the Income Fund: B. Bond Fund. First, there shall be credited from the Income Fund to a fund created by the 1989 Ordinance and known as the 'Town of Vail, Sales Tax Bond Fund" the following amounts: 1. Interest Payments. Monthly to the Bond Fund, commencing on the first day of the month immediately succeeding the delivery of any of the Bonds, or commencing on the first day of the month one year next prior to the first interest payment date of any of the Bonds, whichever commencement date is later, an amount in equal monthly installments necessary, together with any moneys therein and available therefor, to pay the interest due and payable on the Outstanding Bonds on the next succeeding interest payment date. 2. Principal Payments. Monthly to the Bond Fund, commencing on the first day of the month immediately succeeding the delivery of any of the Bonds, or commencing on the first day of the month one year next prior' to the first principal payment date of any of the fonds, whichever commencement date is later, an amount in equal monthly installments necessary, together with any moneys therein and available therefor, to pay the principal and redemption premium, if any, due and payable on the Outstanding Bonds on the next succeeding principal payment date. 3. Reduction of Payments. If prior to any interest payment date or principal payment date, there has been accumulated in the Bond Fund the entire amount necessary to pay the next maturing installment of interest or principal, or both, the payment required in subparagraph (1) or (2) (whichever is applicable) of this paragraph, may be appropriately -30- reduced; but thy: : ~:quired monthly amounts again shall be so credited to such account commencing on such interest payment date or principal payment date. The moneys in the Bond Fund shall be used only to pay the principal of, prior redemption premium if any, and interest on the Bonds as the same becomes due. C. Reserve Fund. Second, except as hereinafter provided, from any moneys remaining in the Income Fund there shall be credited monthly, to a separate account created by the 1989 Ordinance and known as the 'Town of Vail Sales Tax Revenue Bonds Reserve Fund" an amount, if any, which is necessary to maintain the Reserve Fund as a continuing reserve in an amount not less than the Reserve Fund Requirement or to pay the issuer of any Bond Reserve Insurance Policy any amounts owing to such issuer under the terms of the Bond Reserve Insurance Policy. In determining the amounts required to be deposited as provided above, the Town shall receive credit for any investment earnings on the deposits in the Reserve Fund. Investment earnings on deposits in the Reserve Fund shall remain in the Reserve Fund until the amount on deposit equals the Maximum Annual Debt Service Requirement. No credit need be made to the Reserve Fund so long as the moneys and/or a Bond Reserve Insurance Policy therein equal the Reserve Fund Requirement (regardless of the source of such accumulations). The Reserve Fund Requirement shall be accumulated and maintained as -a continuing reserve to be used, except as hereinafter provided in subsections D, and F of this Section and Section 20 hereof, only to prevent deficiencies in the payment of the principal of and the interest on the Bonds resulting from the failure to credit to the Bond Fund sufficient funds to pay said principal and interest as the same accrue or to pay the issuer of any Bond Reserve Insurance Policy any amounts owing to such issuer under the terms of the Bond Reserve Insurance Policy. The Reserve Fund Requirement shall be calculated upon (i) any principal payment, whether at stated maturity or upon redemption, (ii) the issuance of Additional Bonds, or (iii) the defeasance of all or a portion of the Bonds. In lieu of all or a portion of the moneys required to be deposited in the Reserve Fund by this Ordinance, the Town may at any time or from time to time deposit a -31- Bond Reserve Insurance Policy in the Reserve Fund in full or partial satisfaction of the Reserve Fund Requirement; provided that any such Bond Reserve Insurance Policy shall be payable on any date on which moneys will be required to be withdrawn from the Reserve Fund as provided herein. Upon deposit of any Bond Reserve Insurance Policy in the Reserve Fund, the Town may transfer moneys equal to the amount payable under the Bond Reserve Insurance Policy from the Reserve Fund and apply such moneys to any lawful purpose. If the covenant contained in Section 19.K. of this Ordinance does not permit the use of proceeds of any series of Bonds for a full funding of the Reserve Fund in the amount of the Reserve Fund Requirement, the maximum amount of proceeds of such series of Bonds which may be deposited to the Reserve Fund pursuant to Section 19.K. shall be deposited to the Reserve Fund upon the issuance of such series of Bonds, and Pledged Revenues shall be deposited to the Reserve Fund monthly so that not later than twelve calendar months after the date of issuance of such series of Bonds, the amount on deposit in the Reserve Fund shall equal the Reserve Fund Requirement. D. Termination Uoon Deposits to Maturitu or Redemvtion Date. No payment need be made into the Bond Fund, the Reserve Fund, or both, if the amount in the Bond Fund and the amount in the Reserve Fund total a sum at least equal to the entire amount of the Outstanding Bonds, both as to principal and interest to their respective maturities, or to any redemption date on which the Town shall have exercised its option to redeem the Bonds then Outstanding and thereafter maturing, including any prior redemption premiums then due, and both accrued and not accrued, in which case moneys in said two funds in an amount at least equal to such principal and interest requirements shall be used solely to pay such as the same accrue, and any moneys in excess thereof in said two funds may be withdrawn and used for any lawful purpose. E. Defravin~ Delinquencies in Bond and Reserve Funds,. If on any required monthly payment date the Town shall for any reason fail to pay into the Bond Fund the full amount above stipulated, then an amount shall be paid into the Bond Fund on such date -32- from the Reserve Fund equal to the difference between the amount paid and the full amount so stipulated. The money so used shall be replaced in the Reserve Fund from the first Pledged Revenues received that are not required to be otherwise applied by this section, but excluding any payments required for any subordinate obligations; provided, however, that an amount equal to the amount withdrawn from the Reserve Fund shall be deposited by the Town in the Reserve Fund no later than twelve months from the date of such withdrawal. If at any time the Town shall for any reason fail to pay into the Reserve Fund the full amount above stipulated from the Pledged Revenues, the difference between the amount paid and the amount so stipulated shall in a 'like manner be paid therein from the first Pledged Revenues thereafter received not required to be applied otherwise by this section, but excluding any payments required for any subordinate obligations. The moneys in the Bond . Fund and in the Reserve Fund shall be used solely for the purpose of paying the principal and any redemption premium of and the interest on the Bonds and moneys in the Reserve Fund shall be used to pay the issuer of any Bond Reserve Insurance Policy any amounts owing to such issuer under the terms of the Bond Reserve Insurance Policy; provided, however, that any moneys at any time in excess of the Reserve Fund Requirement calculated with iespect to the Bonds in~ the Reserve Fund 'may be withdrawn therefrom and used for any lawful purpose; and provided, further; that any moneys in the Bond Fund and in the Reserve Fund in excess of accrued and unaccrued principal and interest requirements to the respective maturities of the Outstanding Bonds may be used as provided in Paragraph D of this section. F. Rebate Fund. Third, there shall be deposited in a special account created by the 1989 Ordinance and known as the '"Town of Vail Sales Tax Revenue Bonds Rebate Fund" amounts required by Section 148(f) of the Tax Code to be held until such time as any required rebate payment is made. Amounts in the Rebate Fund shall be used for the purpose of making the payments to the United States required by Section 148(f) of the Tax Code. Any amounts in excess of those required to be on deposit therein by Section 148(f) -33- of the Tax Code shall be withdrawn therefrom and deposited into the Income Fund. Funds in the Rebate Fund shall not be subject to the lien created by this Ordinance to the extent such amounts are required to be paid to the United States Treasury. The Town may create separate accounts in the Rebate Fund in connection with the issuance of Additional Bonds. G. Payment for Subordinate Obligations. After the payments required by Paragraphs B, C and F of this section, the Pledged Revenues shall be used by the 'T'own for the payment of interest on and principal of any subordinate lien obligations hereafter authorized to be issued and payable from the Pledged Revenues, including reasonable reserves therefor. H. Use of Remainine Revenues. After making the payments required to be made by this Section, any remaining Pledged Revenues may be used for any lawful purpose. Nothing in this Ordinance shall prevent the Town from withdrawing from the Income Fund amounts collected by the Town and subsequently determined, pursuant to the applicable Sales Tax Ordinances, to be subject to valid claims for refunds. Section 15. General Administration of Funds. The funds designated in Sections 13 ~ and 14 hereof shall be administered as follows subject to the limitations stated in Section 19.K. hereof: A. Budeet and ADDfODriatiOn of Funds. The sums provided to make the payments specified in Section 14 hereof are hereby appropriated for said purposes, and said amounts for each year shall be included in the annual budget and the appropriation ordinance or measures to be adopted or passed by the Town Council in each year respectiveiy while any of the 1991 Bonds, either as to principal or interest, are Outstanding and unpaid. No provision of any constitution, statute, charter, ordinance, resolution or other order or measure enacted after the issuance of the 1991 Bonds shall in any manner be construed as limiting or impairing the obligation of the Town to keep and perform the covenants contained in this Ordinance so long as any of the 1991 Bonds remain Outstanding and unpaid. Nothing herein shall prohibit the Town Council, at its sole option, from appropriating and applying other -34- . funds of the Town legally available for such purpose to the Bond Fund or Reserve Fund for the purpose of providing for the payment of the principal of, interest on or any premiums due with respect to the 1991 Bonds. B. Places and Times of Deposits. Each of the special funds created in Section 14 hereof and the Construction Fund created in Section 13 hereof shall be maintained in a Commercial Bank as a book account kept separate and apart from all other accounts or funds of the Town as trust accounts solely for the purposes herein designated therefor. For purposes of investment of moneys, nothing herein prevents the commingling of moneys accounted for in any two or more such book accounts pertaining to the Pledged Revenues or to such funds and any other funds of the Town to be established under this Ordinance. Such book account shall be continuously secured to the fullest extent required by the laws of the State for the securing of public funds and shall be irrevocable and not withdrawable ~by anyone for any purpose other than the respective designated purposes of such funds or accounts. Each periodic payment shall be credited to the proper book account not later than the date therefor herein designated, except that when any such date shall be a Saturday, a Sunday or a legal holiday, then such payment shall be made on or before the next preceding business day. C. Investment of Funds. Any moneys in the Construction Fund created pursuant to Section 13 hereof, and any moneys in any fund established by Section 14 of this Ordinance may be invested or reinvested in any Permitted Investment. Securities or obligations purchased as such an investment shall either be subject to redemption at any time at face value by the holder thereof at the option of such holder, or shall mature at such time or times as shall most nearly coincide with the expected need for moneys from the fund in question. Securities or obligations so purchased as an investment of moneys in any such fund shall be deemed at all times to be a part of the applicable fund. The Town shall present for redemption or sale on the prevailing market any securities or obligations so purchased as an investment of moneys in a given fund whenever it shall be necessary to do -35- so in order to provide moneys to meet any required payment or transfer from such fund. The Town shall have no obligation to make any investment or reinvestment hereunder, unless any moneys on hand and accounted for in any one account exceed $5,000 and at least $5,000 therein will not be needed for a period of not less than sixty days. In such event the Town shall invest or reinvest not less than substantially all of the amount which will not be needed during such sixty day period, except for any moneys on deposit in an interest bearing account in a Commercial Bank, without regard to whether such moneys are evidenced by a certificate of deposit or otherwise, pursuant to this Section 15.B. and Section 15.C. hereof; but the Town is not required to invest, or so to invest in such a manner, any moneys accounted for hereunder if any such investment would contravene the covenant concerning arbitrage in Section 19.K. hereof. D. No Liability for Losses Incurred in Performine Terms of Ordinance. Neither the Town nor any officer of the Town shall be (iabie or responsible for any loss resulting from any investment or reinvestment made in accordance with this Ordinance. E. Character of Funds. The moneys in any fund or account herein authorized shall consist of lawful money of the United States or investments permitted by Section 15.C. hereof or both such money and such investments. Moneys deposited in a demand or time deposit account in or evidenced by a certificate of deposit of a Commercial Bank pursuant to Sections 15.B. and 15.C, hereof, appropriately secured according to the laws of the State, shall be deemed lawful money of the United States. Section 16. Lien on Pledged Revenues. The 1991 Bonds constitute a pledge of, and an irrevocable lien (but not necessarily an exclusive lien) on all of the Pledged Revenues, on a parity with the lien of the 1989 Bonds. The 1991 Bands are equitably and ratably secured by a lien on the Pledged Sales Tax, but the 1991 Bonds, in accordance with the requirements of the 1985 Ordinance, only constitute an irrevocable and second and subordinate lien (but not necessarily an exclusive second lien) upon the Pledged Sales Tax, such lien being second and subordinate to the lien of the Town's 1985 Bonds. In connection -36- with the Pledged Sales Tax and as required by the 1985 Ordinance, the Town shall fully provide for the debt service, reserve account, and other requirements of the 1985 Bonds in any Fiscal Year and, only after such provision, may use excess Pledged Sales Taxes for the payment of the principal of and interest on the 1991 Bonds, by transferring such excess Pledged Sales Taxes to the Income Fund. The 1991 Bonds constitute an irrevocable and first lien (but not necessarily an exclusive first lien) upon the other Pledged Revenues except for the Pledged Sales Tax. Section 17. Additional Bonds. A. Limitations Unon Issuance of Additional Bonds. Nothing in this Ordinance shall be construed in such a manner as to prevent the issuance by the Town of additional bonds or other obligations, payable from and constituting a lien upon the Pledged Revenues on a parity with the lien of the 1991 Bonds (the "Additional Bonds"). Such Additional Bonds may be payable solely from Pledged Revenues or they may be payable from Pledged Revenues and another revenue or fund of the Town ("Additional Pledged Revenues"). Regardless of whether payable solely from Pledged Revenues or from Pledged Revenues and Additional Pledged Revenues, before any such bonds or other obligations are authorized or actually issued the following condition shall be satisfied: for the Fiscal Year immediately preceding the issuance of any Additional Bonds, the. amount of Pledged Sales Tax Revenues in such Fiscal Year must equal or exceed 125% of the Maximum Annual Debt Service Requirement on the Bonds (including the Additional Bonds proposed to be issued) and the amount of Pledged Revenues in such Fiscal Year must equal or exceed 140% of the Maximum Annual Debt Service Requirement on the Bonds (including the Additional Bonds proposed to be issued). For the purpose of satisfying the aforementioned 125% test and 140% test, any tax, now existing or hereafter imposed, which legally becomes a part of the Pledged Revenues during the Fiscal Year preceding the issuance of Additional Bonds, or any tax which is to legally become a part of the Pledged Revenues immediately prior to the issuance of Additional Bonds, or any increase in the rate of any tax which is a part of the -37- r Pledged Revenues which increase is imposed during the Fiscal Year preceding the issuance of Additional Bonds or any such increase which is to be imposed immediately prior to the issuance of Additional Bonds can be considered for its estimated effect on the amount of the Pledged Revenues as if such tax or increase had been in effect for the Fiscal Year immediately preceding the issuance of such Additional Bonds. Any tax which is no longer in effect at the time of issuance of the Additional Bonds shall not be considered for purposes of satisfying such tests. Any Pledged Revenue which is not a tax shall be considered similarly for purposes of satisfying _ sach tests. If the ordinance authorizing a series of Additional Bonds will pledge Additional Pledged Revenues to the Bonds, the estimated effect of the amount of such Additional Pledged Revenues may be considered as if such revenues had been received for the last Fiscal Year immediately preceding the issuance of such Additiona! Bonds. B. Certificate of Revenues. A written certification by a certified public accountant who is not an employee of the Town that the requirements of paragraph A of this section have been met shall be conclusively presumed to be accurate in determining the right of the Town to authorize, issue, sell and deliver said Additional Bonds .on a parity with the 1991 Bonds herein authorized. C. Subordinate Oblieations Permitted. Nothing in this Ordinance shall be construed in such a manner as to prevent the issuance by the Town of additional obligations payable from and constituting a lien upon the Pledged Revenues subordinate or junior to the lien of the 1991 Bonds. D. Superior Obligations Prohibited. Nothing in this Ordinance shall be construed so as to permit the Town to hereafter issue obligations payable from the Pledged Revenues having a lien thereon prior or superior to the 1991 Bonds. Section 18. Refunding Oblieations. A. Generally. If at any time after the 1991 Bonds, or any part thereof, shall have been issued and remain Outstanding, the Town shall find it desirable to refund any -38- t Outstanding obligations payable from the Pledged Revenues, said obligations, or any part thereof, may be refunded, subject to the provisions of Paragraph B of this Section, if (1) the obligations to be refunded, at the time of their required surrender for payment, shall then mature or shall then be callable for prior redemption at the Town's option upon proper call, or (2) the owners of the obligations to be refunded and Bond Insurer, if Bond Insurer insured such obligations, consent to such surrender and payment. B. Protection of Obiiations Not Refunded. Any refunding obligations payable from the Pledged Revenues shall be issued with such details as the Town Council may provide, so long as there is no impairment of any contractual obligation imposed upon the ' Town by any proceedings authorizing the issuance of any unrefunded portion of obligations payable from the Pledged Revenues; but so long as any 1991 Bonds are Outstanding, refunding obligations payable from the Pledged Revenues may be issued on a parity with the unrefunded Bonds only if: (1) Prior Consent. The Town first receives the consent of the owner or owners of the unrefunded Bonds and Bond Insurer, if Bond Insurer insured such obligations; or (2) Requirements Not Increased. The refunding obligations do not increase by more than $25,000, for any Fiscal Year prior to and including the last maturity date of any unrefunded Bonds, the aggregate principal and interest requirements evidenced by such refunding obligations and by any Outstanding Bonds not refunded, and the lien of any refunding parity obligations on the Pledged Revenues is not raised to a higher priority than the lien thereon of any obligations thereby refunded; or (3) Earnings Test. The refunding obligations are issued in compliance with paragraphs A and B of Section 17 hereof. Section 19. Protective Covenants. The Town hereby additionally covenants and agrees with each and every owner of the 1991 Bonds that: -39- A. Use of 1991 Bond Proceeds. The Town will proceed with the construction . of the Project without delay and with due diligence. B. Payment of 1991 Bonds. The Town will promptly pay the principal of and interest on every 1991 Bond issued hereunder and secured hereby on the dates and in the manner specified herein and in said 1991 Bonds according to the true intent and meaning hereof. Such principal and interest is payable solely from the Pledged Revenues. C. Amendment of Certain Ordinances: Duty to Impose Sales Tax: Impairment of Contract. The Sales Tax Ordinances are in full force and effect and have not been repealed or amended. The Town will not repeal or amend said Sales Tax Ordinances in any manner which would diminish the proceeds of the Sales Tax by an amount which would materially adversely affect the rights of the owners of the Bonds. The Town agrees that any law, ordinance or resolution of the Town, in any manner affecting the Pledged Revenues or the Bonds, or otherwise appertaining thereto, shall pat be repealed or otherwise directly or indirectly modified in such manner as to materially adversely affect any Bonds Outstanding, unless the required consent is obtained, all as provided in Section 28 of this Ordinance. Notwithstanding any other provision of this Section or this Ordinance, the Town shall retain the right to make changes, without any consent of Bond owners or the Bond Insurer, in the Sales Tax Ordinances, or any ordinance supplemental thereto or in substitution therefor, concerning the use of proceeds of the Pledged Sales Tax remaining after the current requirements of all ordinances authorizing bonds or other securities payable from the Pledged Sales Tax, or any portion thereof, have been met; or concerning changes in applicability, exemptions, administration, collection or enforcement of the Sales Tax, if such changes do not materially adversely affect the security for the Bonds; but the. Town shall pat reduce the present rates of the Pledged Sales Tax, without the consent of the owners of sixty-six percent (66%) in aggregate principal amount of the then Outstanding 1991 Bonds or Bond Insurer (whichever is appropriate), as provided in Section 28 of this Ordinance. -40- The foregoing covenants are subject to compliance by the Town with orders of courts of competent jurisdiction concerning the validity, constitutionality or collection of such tax revenues, any legislation of the United States or the State or any regulation or other action taken by the federal government or any State agency or any political subdivision of the State pursuant to such legislation, in the exercise of the police power thereof for the public welfare, which legislation, regulation or action applies to the Town as a Colorado home rule city and limits or otherwise inhibits the amount of such tax revenues due to the Town. All of the Pledged Revenues resulting from the imposition and collection of the Sales Tax shall be subject to the payment of the principal of, interest on, and redemption premium, if any, of all securities payable from the Pledged Revenues, including reserves therefor, as provided herein or in any instrument supplemental or amendatory hereof. D. Defense of Leeality of Pledged Revenues. There is not pending or threatened any suit, action or proceeding against or affecting the Town before or by any court, arbitrator, administrative agency or other governmental authority which affects the validity or legality of this Ordinance, or the Sales Tax Ordinances or the imposition and collection of the Sales Tax, any of the Town's obligations under this Ordinance or any of the transactions contemplated by this Ordinance or the Sales Tax Ordinances. The Town shall, to the extent permitted by law, defend the validity and legality of this Ordinance, the Sales Tax and the Sales Tax Ordinances against all claims, suits and proceedings which would diminish or impair the Pledged Revenues. Furthermore, the Town shall amend from time to time the provisions of any ordinance or resolution of the Town, as necessary to prevent impairment of the Pledged Revenues as required to meet the principal of, interest on, and prior redemption premium, if any, of the 1991 Bonds when due. E. Further Assurances. At any and all times the Town shall, so far as it may be authorized by law, pass, make, do, execute, acknowledge, deliver and file or record all and every such further instruments, acts, deeds, conveyances, assignments, transfers, other documents and assurances as may be necessary or desirable for the better assuring, conveying, -41- I ' granting, assigning and confirming all and singular the rights, the Pledged Revenues and other funds and accounts hereby pledged or assigned, or intended so to be, or which the Town may hereafter become bound to pledge or to assign, or as may be reasonable and required to carry out the purposes of this Ordinance. The Town, acting by and through its officers, or otherwise, shall at all times, to the extent permitted try law, defend, preserve and protect the pledge of said Pledged Revenues and other funds and accounts pledged hereunder and all the rights of every owner of any of the 1991 Bonds against all claims and demands of all Persons whomsoever. F. Conditions Precedent. Upon the issuance of any of the 1991 Bonds, all conditions, acts and things required by the Constitution or laws of the United States, the Constitution or laws of the State, the Charter or this Ordinance, to exist, to have happened, and to have been performed precedent to or in the issuance of the 1991 Bonds shall exist, have happened and have been performed, and the; 1991 Bonds, together with all other obligations of the Town, shall not contravene any debt or other limitation prescribed by the Constitution or laws of the United States, the Constitution or laws of the State or the Charter. G. Records. ~ So long as any of'the ].991 Bonds remain Outstanding, proper books of record and account will be kept by the Town, separate and apart from all other records and accounts, showing complete and correct entries of all transactions relating to the Pledged Revenues and the funds created or continued by this Ordinance: H. Audits. The Town further agrees ghat it will, within 140 days following the close of each fiscal year, cause an audit of such books and accounts to be made by a certified public accountant, who is not an employee of the Town, showing the revenues and expenditures of the Pledged Revenues. The Town agrees to allow the owner of any of the 1991 Bonds to review and copy such audits and reports, at the Town's offices, at his request. Copies of such audits and reports will be furnished to Bond Insurer and the Purchaser. -42- I. PerforminE Duties. The Town will faithfully and punctually perform all duties with respect to the Pledged Revenues required by the Charter and the Constitution and laws of the State and the ordinances and resolutions of the Town, including but not limited to the proper collection and enforcement of the Sales Taxes and the segregation of the Pledged Revenues and their application to the respective funds herein designated. J. Other Liens. As of the date of issuance of the 1991 Bonds, other than the 1985 Bonds and the 1989 Bonds, there are no liens or encumbrances of any nature whatsoever on or against any of the Pledged Revenues. K. Tax Covenant. The Town covenants for the benefit of the Registered Owners of the 1991 Bonds that it will not take any action or omit to take any action with respect to the 1991 Bonds, the proceeds thereof, any other funds of the Town or any . facilities financed with the proceeds of the 1991 Bonds if such action or omission (i) would cause the interest on the 1991 Bonds to lose its exclusion from gross income for federal income tax purposes under Section 103 of the Tax Code, (ii) would cause interest on the 1991 Bonds to lose its exclusion from alternative minimum taxable income as defined in Section 55(b)(2) of the Tax Code except to the extent such interest is required to be included in adjusted current earnings adjustment applicable to corporations under Section 56 of the Tax Code in calculating corporate alternative minimum taxable in~:~.s~e, or (iii} would cause interest on the 1991 Bonds to lose its exclusion from Colorado taxable income or Colorado alternative minimum taxable income under present Colorado law. The foregoing covenant shall remain in full force and effect notwithstanding the payment in full or defeasance of the 1991 Bonds until the date on which all obligations of the Town in fulfilling the above covenant under the Tax Code and Colorado law have been met. For the purposes of Section 265(b)(3)(B) of the Tax Code, the Town hereby designates the 1991 Bonds as qualified tax-exempt obligations. L. '`own's Existence. The Town will maintain its corporate identity and existence so long as any of the 1991 Bonds remain Outstanding, unless another political -43- subdivision by operation of law succeeds to the duties, privileges, powers, liabilities, disabilities, immunities and rights of the Town and is obligated by law to receive and distribute the Pledged Revenues in place of the Tovm, without materially adversely affecting the privileges and rights of any owner of any Outstanding 1991 Bands. M. Performance of Duties. The Town will faithfully and punctually perform or cause to be performed all duties with respect to the Gross Revenues and the Parking Facilities required by the laws of the State and the resolutions of the Town, including without limitation filing and collecting reasonable and sufficient charges for services rendered or .furnished by the Parking Facilities as herein provided, and the proper segregation of the Gross Revenues as set forth in Section 14 hereof and their application to the respective funds as herein provided. N. Fees. Rates and Charges. So long as the 1991 Bonds authorized herein remain Outstanding, the Town will cause to be established, imposed and maintained such reasonable fees, rates and other charges for the use or otherwise in respect of the Parking Facilities as will provide in each Fiscal Year sufficient Gross Revenues which together with other Pledged Revenues shall be sufficient: (i) To pay the General Operating Expenses; and (ii) to pay the annual requirements of.' principal of, premium, if any, and interest on the Outstanding Bonds, including any required credit to the Reserve Fund and the Rebate Fund. Such fees, rates and charges shall be reasonable anti just, taking into account the cost and value of the Parking Facilities and the costs of operating and maintaining them, and the amounts necessary for the retirement of all bonds and any other obligations payable from the gross revenues,, accrued interest thereon and any reserves therefor. O. Prompt Collections. The Town will cause the Gross Revenues to be collected promptly and accounted for in the funds as herein provided. -44- P. Maintenance of Parking Facilities. The Town will at all times maintain the Parking Facilities in good repair, working order and condition, will continually administer and operate the Parking Facilities, and from time to time will make all needful and proper repairs, renewals and replacements of the Parking Facilities. Q. Disposal of Property Prohibited. Except for any lease or other right of use for proper rentals or other consideration, the Town will not sell, mortgage, pledge or otherwise encumber, or in any manner dispose of, or otherwise alienate, the Parking Facilities or any part thereof, until all 1991 Bonds shall have been paid in full, both principal and interest, or unless provision has been made therefor, except as provided in Section 19.R. hereof. R. Disposal of Unnecessary Property. The Town may sell, destroy, abandon, otherwise dispose of, or alter at any time any property comprising a part of the Parking Facilities which shall have been replaced by other property of at least equal value, or which shall cease to be necessary for the efficient operation of the Parking Facilities, or which will not materially adversely affect the owners of the 1991 Bonds. A written determination by the Town that the Gross Revenues will be sufficient to meet the requirements of this Section 19.R, shall be conclusively determined to be accurate; provided, however, that in the event of any sale or other compensated disposition as aforesaid, the proceeds received on such disposition shall be credited to the Bond Fund. S. Fire and Extended Coveraee Insurance. The Town shall acquire and maintain, or cause to be acquired and maintained, fire and extended coverage insurance on the Parking Facilities in amounts at least sufficient to provide for not less than full recovery whenever the loss from perils insured against does not exceed ninety (90%) of the full insurable value of the Parking Facilities. The Town, at its election, may provide for such fire and extended coverage insurance on the Parking Facilities partially or wholly by means of a self-insurance. fund as provided by applicable law, in compliance with the requirements hereof. Any such self-insurance shall be deemed to be insurance coverage hereunder. -45- T. Other Insurance. The Town shall purchase and maintain in connection with, but not necessarily limited to, the Parking Facilities public liability insurance and workmen's compensation insurance in such amounts and to such extent as may be required under the laws of the State or, in the absence of an;y State requirement, in an amount not less than the limitations provided in the Colorado Governmental Immunity Act (Article 10, Title 24 of the Colorado Revised Statutes, as amended). The Town, at its election, may provide for the insurance specified in this Section 19.T partially or wholly by means of a self-insurance fund as provided by applicable Iaw. Any such self-insurance shall be deemed to be insurance coverage hereunder. The proceeds of fire and extended coverage insurance covering the Parking Facilities, at the option of the Town, shall (i) be used forthwith for the purpose of repairing the property destroyed, provided that any insurance proceeds remaining . upon the completion of such repair or replacement shall be deposited in the Bond Fund or (ii) be deposited forthwith to the Bond Fund. U. Surety Bonds. Each official of the Town having custody of the Pledged Revenues, or responsible for their handling, shall be; fully bonded at all times, which bond shall be conditioned upon the proper application of such money. V. Preiudicial Contracts and Action Prohibited. No contract will be entered into, nor will any action be taken, by the Town by which the rights and privileges of any Owner are impaired or diminished. Section 20. Defeasance. When the 1991 Bonds have been fully paid both as to principal and interest, all obligations hereunder shall be discharged, and the .1991 Bonds shall no longer be deemed to be Outstanding for ar?y purpose of this Ordinance, except as set forth in Section 19.K. hereof. Payment of any 1991 Bonds shall be deemed made when the Town has placed in escrow with a Trust Bank an amount sufficient (including the known minimum yield from Governmental Obligations) to meet all requirements of principal, interest, and any prior redemption premiums on such 1991 Bonds as the same become due to maturity or a designated prior redemption date; and, if 1991 Bonds are to be redeemed prior to -46- . maturity pursuant to Section 7A hereof, when the Town has given to the Registrar irrevocable written instructions to give notice of prior redemption in accordance with Section 7D hereof. The Governmental Obligations shall become due prior to the respective times on which the proceeds thereof shall be needed, in accordance with a schedule agreed upon between the Town and such Trust Bank at the time of creation of the escrow and shall not be callable prior to their scheduled maturities by the issuer thereof. In the event that there is a defeasance of only part of the 1991 Bonds of any maturity, the Registrar shall, if requested by the Town, institute a system to preserve the identity of the individual 1991 Bonds or portions thereof so defeased, regardless of changes in bond numbers attributable to transfers and exchanges of 1991 Bonds; and the Registrar shall be entitled to reasonable compensation and reimbursement of expenses from the Town in connection with such system. Section 21. Deleeated Powers. The officers of the Town be, and they hereby are, authorized and directed to take all action necessary or appropriate to effectuate the provisions of this Ordinance, including, without limiting the generality of the foregoing, the printing of the 1991 Bonds with the opinion of bond counsel thereon, the procuring of bond insurance entering into and executing appropriate agreements with the Registrar and Paying Agent as to its services hereunder, and the execution of such certificates as may be required by the Purchaser, including, but not necessarily limited to, the absence and existence of factors affecting the exclusion of interest on the 1991 Bonds from gross income for federal income tax purposes. The form, terms and provisions of the Purchase Contract and Registrar Agreement hereby are approved, and the Town shall enter into and perform its obligations under the Purchase Contract and Registrar Agreement in substantially the forms of such documents presented to the Town Council at this meeting, with only such changes therein as are required by the circumstances and are not inconsistent herewith; and the Mayor and -47- r Town Clerk are hereby authorized and directed to execute and deliver the Purchase Contract and Registrar Agreement as required hereby. Section 22. Events of Default. Each of the following events is hereby declared an "event of default:" A. Nonnavment of Principal. If payment of the principal of any of the 1991 Bonds in connection therewith, shall not be made vvhen the same shall become due and payable at maturity; or by proceedings for prior redemption; or B. Non~avment of Interest. If payment of any installment of interest on the 1991 Bonds shall not be made when the same becomes due and payable; or C. Incapbable to Perform. If the Town shall for any reason be rendered incapable of fulfilling its obligations hereunder; or D. Default of anv Provision. If the Town shall default in the due and punctual performance of its covenants or conditions, agreements and provisions contained in the 1991 Bonds or in this Ordinance on its part to be performed, other than those delineated in Paragraphs A and B of this section, and if such default shall continue for sixty days after written notice specifying such default and requiring the same to be remedied shall have been given to the Town by the Bond Insurer so long as it is not in default of its payment obligations under the Bond Insurance Policy or, during such default by the Bond Insurer, by the owners of twenty-five percent (25%) .in aggregate principal amount of the 1991 Bonds then Outstanding. Section 23. Remedies. Upon the happening and continuance of any event of defau]t as provided in Section 22 hereof, the Bond Insurer or owner or owners of not less -than 25% in principal amount of the Outstanding Bonds, or a trustee therefor, may protect and enforce their rights hereunder by proper legal or equitable remedy deemed most effectual including mandamus, specific performance of any covenants, the appointment of a receiver (the consent of such appointment being hereby granted), injunctive relief, or requiring the Town Council to act as if it were the trustee of an express trust, or any combination of such -48- , remedies. Notwithstanding the foregoing, so long as the Bond Insurer is not in default in its payment obligations under the Bond Insurance Policy or the Bond Reserve Insurance Policy, the Bond Insurer shall direct the enforcement of any remedy hereunder without the consent of the owners of the Bonds. All proceedings shall be maintained for the benefit of the Bond Insurer so long as it is not in default in its payment obligations under the Bond Insurance Policy or the Bond Reserve Insurance Policy, and, during such default by the Bond Insurer, thereafter for the equal benefit of all owners. The failure of the Bond Insurer or any owner to proceed does not relieve the Town or any person of any liability for failure to perform any duty hereunder. The foregoing rights are in addition to any other right available to the Bond Insurer or owners of Bonds and the exercise of any right by any owner shall not be deemed a waiver of any other right. Section 24. Duties UDOn Default. Upon the happening of any of the events of default as provided in Section 22 of this Ordinance, the Town, in addition, will do and perform all proper acts on behalf of and for the owners of the 1991 Bonds to protect and preserve the security created for the payment of the 1991 Bonds and to insure the payment of the principal of and interest on said 1991 Bonds promptly as the same become due. Proceeds derived from the Pledged Revenues, so long as any of the 1991 Bonds herein authorized, either as to principal or interest, are Outstanding and unpaid, shall be paid into the Bond Fund and the Reserve Fund, pursuant to the terms hereof and to the extent provided herein, and used for the purposes herein provided. In the event the Town fails or refuses to proceed as in this section provided, the Bond Insurer so long as it is not in default of its payment obligations under the Bond Insurance Policy or, during such a default by the Bond Insurer, the owner or owners of not less than twenty-five percent (25%) in aggregate principal amount of the 1991 Bonds then Outstanding, after demand in writing, may proceed to protect and enforce the rights of such owners as hereinabove provided. Section 25. Revlacement of Registrar or Paving Agent. If the Registrar or Paying Agent initially appointed hereunder shall resign, or if the Town shall reasonably -49- determine that said Registrar or Paying Agent has become incapable of performing its duties hereunder, the Town may, upon notice mailed to Bond Insurer and each owner of any 1991 Bond at his address last shown on the registration records, appoint a successor Registrar or Paying Agent, or both. No resignation or dismissal of the Registrar or Paying Agent may take effect until a successor is appointed. Every such successor Registrar or Paying Agent shall be a bank or trust company having a shareowrrers' equity capital, surplus, and undivided profits), however denominated, of not Less than $10,000,000. It shall not be required that the same institution serve as both Registrar and Paying Agent hereunder, but the Town shall have the right to have the same institution serve as both .Registrar and Paying Agent hereunder. Section 26. Severability. If any one or more sections, sentences, clauses or parts of this Ordinance shall for any reason be held invalid, such judgment shall not affect, impair, or invalidate the remaining provisions of this Ordinance, but shall be confined in its operation to the specific sections, sentences, clauses or parts of this Ordinance so held unconstitutional or invalid, and the inapplicability and invalidity of any section, sentence, clause or part of this Ordinance in any one or more instances shall not affect or prejudice in any way the applicability and validity of this Ordinance in any other instances. Section 27. Revealer. All bylaws, orders, resolutions and ordinances, or parts thereof, inconsistent herewith are hereby 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. Section 28. Amendment. A. The Town may, without the conse;nt of, or notice to the owners of the 1991 Bonds or Bond Insurer, adopt such ordinances supplemental hereto (which supplemental amendments shall thereafter form a part hereof) for any one or more or all of the following purposes: -50- v. . 1. To cure any ambiguity, or to cure, correct or supplement any defect or inconsistent provision contained in this Ordinance, or to make any provisions with respect to matters arising under this Ordinance or for any other purpose if such provisions are necessary or desirable and do not adversely affect the interests of the owners of the 1991 Bonds or Bond Insurer; or 2. To subject to this Ordinance additional revenues, properties or collateral. B. Exclusive of the amendatory ordinances permitted by Paragraph A of this Section, this Ordinance may be amended or supplemented by ordinance adopted by the Town Council in accordance with the law, without receipt by the Town of any additional consideration but with the written consent of Bond Insurer, unless Bond Insurer is in default under the terms of the Bond Insurance Policy, in which case this Ordinance may be amended or supplemented with the written consent of the owners of sixty-six percent (66%) in aggregate principal amount of the 1991 Bonds Outstanding at the time of the adoption of such amendatory or supplemental ordinance; provided, however, that, without the written consent of Bond Insurer and the owners of all of the 1991 Bonds adversely affected thereby, no such Ordinance shalt have the effect of permitting: 1. An extension of the maturity of any 1991 Bond authorized by this Ordinance; or 2. A reduction in the principal amount of any 1991 Bond, the rate of interest thereon, or the prior redemption premium thereon; or 3. The creation of a lien upon or pledge of Pledged Revenues ranking prior to the lien or pledge created by this Ordinance; or 4. A reduction of the principal amount of 1991 Bonds required for consent to such amendatory or supplemental ordinance; or 5. The establishment of priorities as between 1991 Bonds issued and Outstanding under the provisions of this Ordinance; or -51- 6. The modification of or otherwise affecting the rights of the owners of less than all of the 1991 Bonds then Outstanding. Copies of any waiver, modification or ,amendment to this Ordinance shall be delivered to Standard & Poor's Corporation, or any other entity then maintaining a rating on the 1991 Bonds. Section 29. Notice to Bond Insurer. ,Any notice herein required to be given to Bond Insurer shall be in writing and sent by registered or certified mail to Bond Insurer, Municipal Band Investors Assurance Corporation, 113 King Street, Armonk, New York 10504 or to such other address that Bond Insurer shall notify the Town of in writing. Section 30. Payments under the Policy. A. In the event that, on the second Business Day, and again on the Business Day, prior to any payment date on the 1991 Bonds, the Paying Agent has not received sufficient moneys to pay all principal of and interest on the 1991 Bonds then due, the Paying Agent shall immediately notify Bond Insurer or its designee on the same Business Day by telephone or telegraph, confirmed in writing by registered or certified mail, of the amount of the deficiency. B. If the deficiency is made up in whole or in part prior to or on the payment date, the Paying Agent shall so notify Bond Insurer or its designee. C. In addition, if the Paying Agent has notice that any registered owner has been required to disgorge payments of principal or interest on the 1991 Bonds to a trustee in bankruptcy or creditors or others pursuant to a final judgment by a court of competent jurisdiction that such payment constitutes an avoidable preference to such registered owner within the meaning of any applicable bankruptcy laws, then the Paying Agent shall notify Bond Insurer or its designee of such fact by telephone or telegraph, confirmed in writing by registered or certified mail. D. The Paying Agent is hereby irrevocably designated, appointed, directed and authorized to act as attorney-in-fact for registered owners of the 1991 Bonds as follows: -52- . 1'. If and to the extent there is a deficiency in amounts required to pay interest on the 1991 Bonds, the Paying Agent shall (a) execute and deliver to the Insurance Paying Agent, in form satisfactory to the Insurance Paying Agent, an instrument appointing Bond Insurer as agent for such registered owners in any legal proceeding related to the payment of such interest and an assignment to Bond Insurer of the claims for interest to which such deficiency relates and which are paid by Bond Insurer,, (b) receive as designee of the respective registered owners (and not as Paying Agent) in accordance with the tenor of the Policy payment from the Insurance Paying Agent with respect to the claims for interest so assigned, and (c) disburse the same to such respective registered owners; and 2. If and to the extent of a deficiency in amounts required to pay principal of the 1991 Bonds, the Paying Agent shall (a) execute and deliver to the Insurance Paying Agent in form satisfactory to the Insurance Paying Agent an instrument appointing Bond Insurer as agent for such registered owner in any legal proceeding relating to the payment of such principal and an assignment to Bond Insurer of any of the 1991 Bonds surrendered to the Insurance Paying Agent of so much of the principal amount thereof as has not previously been paid or for which moneys are not held by the Paying Agent and available for such payment (but such assignment shall be delivered only if payment from the Insurance Paying Agent is received), (b) receive as designee of the respective registered owners (and not as Paying Agent) in accordance with the tenor of the Policy payment therefor from the Insurance Paying Agent, and (c) disburse the same to such registered owners. E. Payments with respect to claims for interest on and principal of 1991 Bonds disbursed by the Paying Agent from proceeds of the Policy shall not be considered to discharge the obligation of the Town with respect to such 1991 Bonds, and Bond Insurer shall become the owner of such unpaid 1991 Bonds and claims for the interest in accordance with the tenor of the assignment made to it under the provisions of this subsection or otherwise. -53- F. Irrespective of whether any such assignment is executed and delivered, the Town and the Paying Agent hereby agree for the benefit of Bond Insurer that, 1. to the extent Bond Insurer makes payments, directly or indirectly (as by paying through the Paying Agent), on account of principal of or interest on the 1991 Bonds, Bond Insurer will be subrogated to the rights of such registered owners to receive the amount of such principal and interest from the Town, with interest thereon as provided and solely from the sources stated in this Indenture and the 1991 Bonds; and 2. they will accordingly pay to Bond Insurer the amount of such principal and interest (including principal and interest recovered under subparagraph (ii) of the first paragraph of the Policy, which principal and interest shall be deemed past due and not to have been paid), with interest thereon as provided in this Ordinance and the 1991 Bonds, but only from the sources and in the manner provided herein for the payment of principal of and interest on the 1991 Bonds to registered owners, and wilt otherwise treat Bond Insurer as the owner of such rights to the amount of such principal and interest. Section 31. Ordinance Irreaealable. After any of the 1991 Bonds herein authorized are issued, this Ordinance shall constitute a contract between the Town and the owners of the 1991 Bonds, and shall be and remain irrepeaiable until the 1991 Bands and interest thereon shall be fully paid, cancelled and discharged as herein provided. Section 32. DISDOSItIOn of Ordinance;. This Ordinance, as adopted by the Council, shall be numbered and recorded by the Town Clerk in the official records of the Town. The adoption and publication shall be authenticated by the signatures of the Mayor, or Mayor Pro Tem, and Town Clerk, and by the certificate of publication. Section 33. Effective Date. This ordinance shall be in full force and effect five days after its publication upon final passage as provided in Section 4.9 of the Charter. 0 -54- 9 INTRODUCED, READ AND SET FOR PUBLIC HEARING THIS 5th day of November, 1991. ADOPTED AND APPROVED THIS 19th day of November, 1991. Mayor Town of Vail; Colorado (SEAL) Attest: Town Clerk Town of Vail, Colorado -55- . f:XiiIBIT I ` LIST OF PERMISSIBLE INVESTMENT FOR INDENTURED FUNDS A. Direct obligations of the United States of America (including obligations issued or held in book-entry form on the books of the Department of the Treasury) or obligations the principal of and interest on which are unconditionally guaranteed by the United States of America. B. Bonds, debentures, notes or other evidence of indebtedness issued or guaranteed by any of the following federal agencies and provided such obligations are backed by the full faith and credit of the United States of America (stripped securities are only permitted if they have been stripped by the agency itself): 1. jj~S. Eanort-Import Bank (Egimbank) Direct obligations or fully guaranteed certificates of beneficial ownership 2. F~irmers Home Admiq~stration (FHA) Certificates of beneficial ownership ' 3. Federal Fiaancina Bank 4. Federal Housing Administration Debent~are~ (FHA) 5. General Services Administration_ Participation certificates -6. Government National Mortgage Association (GNMA or "Ginnie Mae") GNMA - guaranteed mortgage-backed bonds GNMA - guaranteed pass-through obligations (pot acceptable ~Q,r certain cash-flow sensitive rues.) 7. U.S. Maritime Administration Guaranteed Title XI financing - 8. IL.~. Department of Housing and iJrban I)eveloDmen~ (HUD) Project Notes Local Authority Bonds New Communities Debentures - U.S. government guaranteed debentures U.S. Public Housing Notes and Bonds - U.S. government guaranteed public housing notes and bonds C. Bonds, debentures, notes or other evidence of indebtedness issued or guaranteed by any of the following non-full faith and credit U.S. government agencies (stripped securities are only permitted if they have been stripped by the agency itself): 1. Federal Home Loan Bank Svstem Senior debt obligations 2. Federal Home Loan Mortoaae Corporation (FHLMC or "Freddie Mac") Participation Certificates Senior debt obligations 3. Federal N~,~}onal Mortgage Association (FNMA or "Fannie Mae") Mortgage-backed securities and senior debt obligations ~ w . 4. Student Loan Marketing Association (SLMA or "Sallie Mae") Senior debt obligations 5. Resolut,~'on Funding Corgi. (REFCORP) obligations D. Money market funds registered under the Federal Investment Company Act of 1940, whose shares are registered under the Federal Securities Act of 1933, and having a rating by S&P of AAAm-G; AAAm; or AAm. E. Certificates of deposit secured at all times by collateral described in (A) and/or (B) above. Such certificates must be issued by commercial banks, savings and loan associations. or mutual savings banks. The collateral must be held by a third party and the bondholders must have a perfected first security interest in the collateral. F. Certificates of deposit, savings accounts, deposit accounts or money market deposits which are fully insured by FDIC or FSLIC. • G. Investment Agreements, including GIC's, acceptable to MBIA. H. Commercial paper rated, at the time of purchase, "Prime - 1" by Moody's or "A-1" or better by SSP. I. Bonds or notes issued by any state or municipality which are rated by Moody's or SAP in one of the two highest rating categories assigned by • such agencies. J. Federal funds or bankers acceptances with a maximum term of one year of any bank which has an unsecured, uninsured and unguaranteed obligation rating of "Prime - 1" or "A3" or better by Moody's and "A-1" oz "A" or better by S&P. R. Repurchase agreements provide for the transfer of securities from a dealer bank or securities firm (seller/borrower) to a municipal entity (buye•r/lender), and the transfer of cash from a municipal entity to the dealer bank or securities firm with an agreement that the dealer bank or securities firm will repay the cash plus a yield to the municipal entity in exchange for the securities at a specified date. Repurchase Agreements must satisfy the following criteria or be approved by MBIA. 1. Rgn~c mnst hP hPrwPPn, th,P mt~.n.iCin31 ?n*~*h and a dealer bank or securi~,ies firm a. Primarv dealers o:i tl~e Federal Reserve zeporting dealer list which are rated A or better by Standard ~ Poor's Corporation and Moody's Investor Services, or b. Banks rated "A" oz• above by Standard & Poor's Corporation and Moody's Investor Services. I ~ ~ l 2. The written revo contract must inc.liicle the following: a. Securities which are acceptable for transfer are:, (1) Direct U.S. governments, or (2) Federal agencies backed by the full faith and credit of the U.S. government (and FNMA ~ FhfAC) b. The term of the repo may he up to 30_ days, c. The collateral must be delivered to the municipal entity, trustee (if trustee is not supplying the collateral) or third party acting as agent for the trustee (if the trustee is supplying the collateral) before/simultaneous with payment (perfection by possession of certificated securit:ies)• d. Valuation of Collateral (1) The securities must be valued weekly, marked-to-market at ` current market price vlus accrued interest (a) The value of collateral must be equal to 104 of the amount of cash transferred by the municipal entity to the dealer bank or security firm under the repo plus accrued interest. If the value of securities held as collateral slips below 104 of the value of the cash transferred by municipality, then additional cash and/or acceptable securities must be transferred. If, however, the securities used as collateral are FNMA or FMAC, then the value of collateral must equal 105°b. 3. Legal opinion which must be delivered to the municipal entity- a. Repo meets guidelines under stz~te law for legal investment of public funds. Additional Notes. (i) Any state administered pool investment fund in which the issuer is statutorily permitted or required to invest will be deemed a permitted investment. (ii) DSRF investments should be valueci at cost if maturity is one year or less, and should be valued at. fair market value and marked to market annually i~ mat~irity is longer than one year. Tn no event should DSRF investments have maturities extending beyond 5 years. a a ORDINANCE NO. 44 SERIES OF 1991 AN ORDINANCE AMENDING ORDINANCE NO. 29, SERIES OF 1989, RELATING TO THE TOWN OF VAIL, COLORADO SALES TAX REVENUE BONDS, SERIES 1989. NOW, THEREFORE, BE IT ORDAINED BY THE.TOWN COUNCIL OF THE TOWN OF VATL., COLORADO: Section 1. Definitions. Terms used in this Ordinance shall have the meanings specified in Ordinance No. 29, Series of 1989 (the "1989 Ordinance"), except where the context by clear implication otherwise requires. Section 2. Recitals. A. The Town is a municipal corporation duly organized and existing under the Town's Charter adopted pursuant to Article XX of the Constitution of the State of Colorado. B. Pursuant to the 1989 Ordinance, the Town has heretofore issued its 1989 Bonds. C. Pursuant to the 1989 Ordinance, the Town is authorized tb issue Additional Bonds if certain requirements set forth in the 1989 Ordinance are met. D. The Town desires to issue its Sales Tax Revenue Bonds, Series 1991 (the "1991 Bonds") in the principal amount of $2,525,000 for various municipal purposes but is unable to meet the limitations set forth in Section 17A of the 1989 Bond Ordinance for the issuance of Additional Bonds. E. Pursuant to Section 28B of the 1989 Ordinance, the Town may amend the 1989 Ordinance with the written consent of the Bond Insurer and without the written consent of the owners of the Outstanding 1989 Bonds so long as the Bond Insurer is not in default under the terms of the Bond Insurance Policy. F. The Town desires to amend Section 17A of the 1989 Ordinance to permit the 1991 Bonds to be issued as Additional Bonds pursuant to the 1989 Ordinance and the Bond Insurer, which is not in default under the Bond Insurance Policy, has given its written consent to such amendments. 3. Amendment of Section 1 of the 1989 Ordinance. The definition of Maximum Annual Debt Service and' Reserve Fund Requirement in Section 1 of the 1989, Ordinance are amended to read as follows: "Maximum Annual Debt Service Requirement" means the maximum amount of all uired payments of principal and interest on the Bonds_ which wilt become due in any Fiscal Year. For the purpose of Section 17 hereof only, Maximum Annual Debt Service Regui_rement shall also include the principal and interest on the 1985 Bonds until the 1985 Bonds are paid or defeased. "Reserve Fund Requirement" means an amount equal to 10% of -the principal amount of _th.. - ~ - - - _ _ e Outstanding Bonds plus an amount equal to all investment earnings on the Reserve Fund; provided that the Reserve Fund Requirement shall not exceed the Maximum Annual Debt Service Requirement. 4. Amendment of Section 17A of t:he 1989 Ordinance.. Section 17A o_f the 1989 Ordinance is amended to read as follows: A. ~ Limitations Upon Issuance of Additional Bonds. - Nothing in this Ordinance shall be construed in such a manner as to prevent the issuance by the Town of additional bonds or other obligations, payable from and constituting a lien upon the Pledged _Revenues . on a_parity with the lien of the 1989 Bonds (the "Additional Bonds").' Such Additional Bonds may be movable solely from Pledged Revenues_ or they may be payable 'from Pledged Revenues and another revenue or ,fund of the Town ("Additional Pledged Revenues"l. Regardless of whether 'payable solely from Pledged Revenues or from Pledged Revenues and Additional Pledged Revenues, before any such_bonds or other oblations are authorized or actually issued the following condition shall be satisfied: for the )Fiscal Year immediately - la~edinQ the issuance of any Additional Bonds, the amount of Pledeed SalesTax Revenues in such Fiscal Year must equal or exceed 125% of the Maximum Annual Debt Service Requirement on the Bonds (including the Additional Bonds proposed to be issued) and the amount of Pled_Qed Revenues in such Fiscal Year must equal or exceed 140°l0 of the Maximum Annual Debt Service_ Requirement on the Bonds (including the Additional Bonds proposed to be issued). For the purpose of satisfvin~ the aforementioned 125% test and 140% test, any tax. now existing or hereafter imposed, which legally becomes a part of the Pledged Revenues during the Fiscal Year preceding the issuance of Additional Bonds. or any tax whichh is to legally become a dart of the Pledged Revenues immediately prior to the issuance of Additional Bonds, or any increase in the rate of any tax which is a part of the Pledged Revenues which increase is -2- imposed durinP the Fiscal Year preceding, the issuance of Additional Bonds or anv such increase which is to be imposed immediately prior to the issuance of Additional Bonds can be considered for its estimated effect on the amount of the Pled_Qed Revenues as~ if such tax or increase had been in effect fo_ r the Fiscal Year immediately preceding the issuance of such . ~ - - - Additional Bonds. Anv tax which is no longer in effect at the time of issuance of the Additional Bonds shall_not be considered for purposes of satisfvinQ such tests. Anv Pledged Revenue which is not a tax shall be considered similarly for purposes of satisfvine the such tests. If the ordinance authorizing a series of Additional Bonds ' will pledge Additional Pledged Revenues to the Bonds, the estimated effect of the amount of such Additional Pledged Revenues may be considered as if such revenues had been received for the last Fiscal_ Year immediately preceding the issuance of such Additional Bonds. Nothing in this Ordinance shall prohibit the Town from issuing Additional Bonds in a maximum.. np 'ncipal amount of $2.555.000 if_ such Additional Bonds are issued prior to ,January 15. 1992. Section 5. Delegated Powers. The officers of the Town be, and they hereby are, authorized and directed to take all action necessary or appropriate to effectuate the provisions of this Ordinance. Section 6. Severabilitv. If any one or more sections, sentences, clauses or . parts of this Ordinance shall for any reason be held invalid, such judgment shall, not affect, impair, or invalidate the remaining provisions of this Ordinance, but shall be confined in its operation to the specific sections, sentences, clauses or parts of this Ordinance so held unconstitutional or invalid, and the inapplicability and invalidity of any section, sentence, clause or part of this Ordinance in any one or more instances shall not affect or prejudice in any way the applicability and validity of this Ordinance in any other instances. Section 7. Repealer. All bylaws, orders, resolutions and ordinances, or parts thereof, inconsistent herewith are hereby 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. Section. 8. Disposition of Ordinance. This Ordinance, as adopted by the Council, shall be numbered and recorded by the Town Clerk in the official records of the Town. The adoption and publication shall be authenticated by the signatures of the Mayor, and Town Clerk, and by the certificate of publication. -3- L Section 9. Effective Date. This ordinance shall be in full force and effect upon the later of five days after its publication upon final passage as provided in Section 4.9 of the Charter or receipt of written consent to the "amendments to the 1989 Ordinance from the Bond Insurer. INTRODUCED, READ AND SET FOR PUBLIC HEARING THIS = 5th day of ~ November, 1991. ADOPTED AND APPROVED THIS 19th day of November, 1991. Mayor Town of Vail, Colorado (SEAL) Attest: Town Clerk ' Town of Vail, Colorado -4- MEMORANDUM TO: Town Council FROM: Community Development Department DATE: November 11, 1991 SUBJECT: Requested amendment to SDD No. 4, Cascade Village, in order to change the development plan for Millrace IV in Area A : if ;`::::iiiiiiii:: iiiii:~::ii:iiii::::~iiiiiii:%ii='ii'f.:Y iTii:'f,.ii ~ivii'.~~...:..::.`: r;{::fv•~riii'i'!y~l;: The applicant is requesting to amend the development plan for SDD No. 4 to change the development plan for the Millrace IV area (a/Wa Cosgriff parcel). This property is located between the Westin Building and Millrace I and II along Gore Creek. Vehicular access will be provided by an existing access easement across the Millrace development. On November 5, 1991, the Town Council reviewed the status of Cascade Village, SDD #4. At that time, the Council identified issues of importance regarding the SDD as a whole. The Council also discussed the proposed major amendment to change the development plan for Millrace IV, Scenario I, located on the Cosgriff parcel between the Westin and the developed portions of Millrace. At that time, the Council felt in general, the proposed changes were positive. On October 28, 1991, the Planning and Environmental Commission reviewed this request for an amendment to SDD No. 4 which included a decrease in units and overall GRFA. The proposal calls out for 6 dwelling units with a total GRFA of 10,450 sq. ft. Each unit will have at ieast 1 enclosed parking space with 2 units having 2 enclosed spaces. There are 2 scenarios approved for this site in the existing development plan. Scenario 1 allows 8 dwelling units with 11,200 sq. ft. of GRFA and 16 required parking spaces with at least 12 enclosed spaces. Scenario 2 allows for 32 accommodation units with 14,000 sq. ft. of GRFA to be attached to the Westin with parking provided in the Cascade/Waterford structure. The applicant wishes to maintain Scenario 2, 32 AUs, and amend Scenario 1. Scenario 2 relies upon parking being provided in the Waterford/Cascade structure. In the memo to the PEC, dated October 28, 1991, page 11, Section I, it is stated that: "This request will not affect the phasing plan for this SDD. Because the proposal provides parking on-site, the development of this site will no longer depend on the Cascade/VNaterford parking structure as previously approved in Scenario 2." Scenario 2 will still be dependant upon parking in the Cascade/Waterford structure. If Scenario 1 is constructed as proposed in this amendment, the phasing of the entire SDD will not be affected. In reviewing this request, the PEC and staff considered the relationship of this particular project to the rest of the SDD. Previously, the undeveloped properties for SDD No. 4 were controlled by a single entity, Vail Ventures. Currently, they are held by a number of different entities as a result of the bankruptcy of Vail Ventures. The staff and PEC finds that, since development rights were established in a comprehensive manner for the entire SDD rather than site by site, it will be necessary to require, at this time and in the future, that each individual developer requesting amendments make off-site improvements that will improve the project as a whole. The staff recommends approval of the SDD major amendment and minor subdivision request with the conditions stated in the memo to the PEC dated October 28, 1991. The PEC unanimously approved the minor subdivision request. The PEC recommended approval of the SDD amendment to the Council by a vote of 6-0, citing the staff memo with the following conditions in addition to those listed in the memo: 1. Improve the south and west property line landscape buffers. 2. The DRB should review the architecture and landscape plan further for compatibility with the surrounding areas. 3. A landscape plan for the area north of the Cosgriff property should be submitted by the applicant and the adjaLs^t property owners to the Design Review Board for review. 4. No credits (overlapping stairs, mechanical, etc.) should be given for the project. . MEMORANDUM TO: Planning and Environmental Commission FROM: Community Development Department DATE: October 28, 1991 SUBJECT: A request for a minor subdivision and major amendment to Special Development District No. 4, Cascade Village, Millrace IV, to approve a development plan, generally located south of Millrace Condominiums and west of the Westin Resort, Vail, and more specifically described as follows: Apart of the SW '/a NE 1/a, Section 12, Township 5 S, Range 81 W of the 6th principal meridian, County of Eagle, State of Colorado, described as follows: Beginning at a point whence an iron pin with plastic cap marking the center of said Section 12 bears S 42°50' 19" W 669.34 ft: thence S 85°43' 14" E 89.84 ft: thence S 57°25'30" E 169.46 ft: thence S 32°59'30" E 141.47 ft: thence S 65°31'36" W 95.04 ft: thence S 69°01'36" W 103.02 ft: thence N 23°24'09" W 319.09 ft to the point of beginning. Applicant: East-West Partners Planner: Shelly Mello I. DESCRIPTION OF THE REQUEST The applicant is requesting a major amendment to Special Development District (SDD) No. 4, Cascade Village Area D to allow 6 dwelling units with a maximum of 9,650 sq. ft. of GRFA on the Cosgriff property, also known as Millrace IV. A minor subdivision has also been requested as part of this proposal. The parcel is bound by the Westin Hotel to the east, Millrace, Phases I, II and III to the north and west and Gore Creek to the south. Currently, an event tent and volleyball court are located on the property and would be removed if this request is approved. The parcel is 1.05 acres, or 45,738 sq. ft. and was zoned as an SDD from the time it was annexed into the Town of Vail in 1974. Access to this property is gained through an easement across the existing Millrace project. Originally, this parcel was to be developed with the same design concept as Millrace. The property has since changed ownership and the current owner does not wish to continue the Millrace development concept. 1 . , The applicant is not requesting any additional density over the two development scenarios originally approved for this parcel. The overall GRFA will be 1,550 sq. ft. less than what is currently approved for the 8 D.U. scenario and 4,350 square feet under the approved 32 A.U. scenario. II. ZONING CONSIDERATIONS The development plan for this parcel allows for either 8 dwelling units with 11,200 sq. ft. of GRFA or 32 accommodation units with 14,000 sq. ft. of GRFA . The current proposal includes 6 dwelling units with the following: TOTAL No. of Units GRFA* Garage Unit Type A 4 @ 1,567 = 6,268 (4) 1-car @ 2$1 = 1,124 Unit Type B 1 @ 1,700 = 1,700 (1) 2-car @ 423 = 423 Unit Type C 1 @ 1,682 = 1,682 (1) 2-car @ 423 = 423 TOTAL: 9,650 1,970 * GRFA calculations exclude overlapping stairs and all mechanical areas. Comparison of Approved and Proposed Development Plans Approved Approved Scenario 2 Scenario 1 Proposed Density of Units) 32 AUs 8 DUs 6 DUs Total GRFA 14,000 11,200 sq. ft. 9,650 sq.ft. Credits (GRFA) None Overlapping stairs Same as Scenario 2 and mechanical not counted; 300 sq. ft. garage credit per parking space (in accordance with previous multi-family GRFA regulations) Height 48 ft. 48 ft. 34 feet max. Setbacks None 60 feet from existing Same as Westin/CMC Bldg.; Scenario 2 50-foot creek setback 2 Site Coverage 35% 35% 14% or 6,600 sq. ft. Landscaping 50% 50% 64% (includes area extending into Gore Creeka does not include any hardscape) Parking 26.8 within Cascade 16 spaces 12 required Waterford Structure (75% Enclosed) 19 proposed (8 enclosed or 66%, 11 surface) III. BACKGROUND When the development standards for this parcel were approved, no development plan for the 8 dwelling unit scenario was submitted. At the time, the staff was concerned with the proposed density of 8 units with 11,200 sq. ft. of GRFA. It was approved with the understanding that a site specific proposal would be submitted at a later time to determine the feasibility of the scenario. The staff feels that the current Y..,YOSaI, which includes a decrease in GRFA and density is very positive. IV. SPECIAL DEVELOPMENT DISTRICT CRITERIA The criteria to be used to evaluate this proposal are the 9 Special Development District (SDD) development standards set forth in the special development district chapter of the Zoning Code. The criteria are as follows: A. Design compatibility and sensitivity to the immediate environment, neighborhood and adjacent properties relative to architectural design, scale, bulk, building height, buffer zones, identity, character, visual integrity and orientation. The applicant is proposing 6 dwelling units (2 free standing units and 2 duplexes) with 1- and 2-car garages. The materials and color scheme are similar to that of Millrace and the Westin. The proposal includes a continuation of the paving application used at the Millrace development. The applicant proposes to use the color scheme and railing design of the Westin for the proposal. The staff finds that the architectural design and site planning treatments are compatible with the surrounding areas. The proposed site plan with detached units and varying orientations, along with the height reduction from 48' to 34', will maintain the views of the surrounding properties. 3 The project placement will not appear as a "wall of building" from the adjacent recreation path because of the orientation of the units. The staff finds that the recreation path is the only area from which the general public may view the project and it is critical that this elevation be broken up as it is proposed Retaining walls will be necessary along the entire east property line. Boulders with a stepped planting area are proposed and the overall wall height will be a maximum of 12 feet. The wall is broken down into two 6-foot sections separated by a planting terrace. A portion of the boulder retaining will remain. A portion of the retaining will be necessary in order to provide the 3 proposed guest parking spaces. If this parking were not provided, the maximum wall height could be substantially reduced. Staff fords that, with adjustments in the landscaping plan to provide evergreens in front of the wall and on the first terrace of the wall, the boulder design is acceptable. An easement to allow the grading and retaining on the Westin property will be necessary prior to any DRB approval. 4 Colored Concrete Driveways ~(t~~~;~.,L~ Plant Material Legend W/ grid pattern ~ ' ~J~~. ~~.~ec~i~,wL E E ~ Existing Trees !Plant Materials \ F Native Grasses Colorado Blue and Green Spruce Cottonwood • Plant Material Screen Concrete Band / ~ / 6 Aspen Drainage Swale t~ a _ . The Westin Hotel l , l ~ • ~ ~ Accent Trees -Flowering Crabapples t ~1~: t ~ d... Interlockin Pavers ~~~s:=4Ti'a~r'I 9 ` s Boulder Retaining Walls r Shrubs to match Millrace E • ' Tt" a-F" a i .k' - E Perennials and Ground Covers • E ~ ~;~ii li _ ~ I ` ~`~;lf~ ii 1~n511 - ergr!':':k ~ Sod Lawn Existing edge of pavers - T' , • i;! ~ ~ Interlocking • -r u~ `f E ` Paver Walks ~ ~ - I 1 .5 NORTH E Entry Pilaster W/- ~ ( 1' e r ,a' u s. E • Project Sign 4 ~ i l 2 2 . •'e . ~ l _ October 16. T99t l J' Millrace ~ - 7 _ ITEM OlY UNIT E ~ ~ ~ ~ - •Eh A~nlcwnq~76 c~IPY, IQ dmp)...-._ E ~ e " •t .tan ~--ti- --_~¢t~~~-! mss- _ P a e 5 ` - Preliminary Landscape Plan FTO».no a.n.wr y, tri t+ia« e T , I ^S O E , _ ~B~--= ~ _ - p CE n' EA T i 'O lke~ ~ie~.... - - ~ o ~ o COS ym 1,7HyJ - - - ~:.F ~ . I ~ ~~o ~ GRlr•r~ AR L 9nb i5 G~bJ.. ~ . ~ - - _ t_tm_ _ g ~ ~ .,k", " G ~ Vat C o I o r a J o c ff.w ra - , ~ - waV.om.,,awaoro.•....eme, _ ~.3ab s _ - ' - E" I.- ~-v.~ / O' / • w7n,6i tl.xj.-....-------- - aaao Sr b~= ~v .~V. ~ n,.c,!?~a sai._rosn_R.oa,.nw_-, - - ~ E D` C r e e k - SOTTSCAPE Bu0-1olJ_ _ U~ G o r ~ J HAt1OSCAPE - e - Uenn6 ~10er-a, AE3oC.~nG. _ ! o Cav.. a».y. 0.,,0T _ if ~ - _ ~ - lerCSme/5'~lAfti FJ. ~ . w r, - 1t L L ~ L ~ h~~~ z~a~ _ ~ :,,iii.. ~ n~ < . ` "r / 7.) x,16 ~'T ; . • - ~ ~ z ~ ~,..rt~ `LOS ~y~r w~- ~ ~ " ` ~ . ~ \ Pita` I.PRG~ ~ T ` ~ . . i^ •1. :,l't• - %iw`:'f: ':~~:-n_..•y-: •}Y,`iyrail:=.:~::. il•'r- •~A. - •i ^i%.rr.... .:.o ~ - C - •~1: } ;.ti•.:~L TJ:.:?`.< ,.7[~•p••,_;} hC:•iJ~Fl' r.: `F~ti; tt. ? '-r •3t h`.' .i,._ ~f••%. ,1r M,c ~ L +~,=i IJ rl...s... `ti , ..~.jt ~ _ I.L ' OC.; _ - : - 2 ' 1 .y - _ •I•' - - - t. - - r~'• - QP`la . 1 "1C r . . • - l air - , . . y:.: - - -r . - . . I 1 - .,.f , ~ ' Y. n - - `it I • f i _ -•l • r'~ . : • , r , r I _ 1 . - . - - ~.t r" :Y I I ~ • - .,ter ' r:" .-y.~ . e,. - ~ I ~ t - -~i. =.1 > - - :r,`~:, ~T.. ' c . -C a` I ' i' " + C` =lk' ' .7'. , r '.P . \ - . . l:~ ~ - :t~- .r'. '-d:;:• , . a ,'y: ' - - , `r:. r .l _ I' . . ~ a~ i - - _ ~ - - •1 . . ~ .r. ,1 `V ! r ..+-r - , . ,yJ• •F-_ - `r ~T r a - - s _ - - - r: >ti> i r. i' _ - - ft ' - - r -..l_r.- c,. Y ~•L - 1~~1,.- ..rte r',.` ..4'. r .7 • _ - ~r_- ~i.'~ _I- - - rr P'~ i. 'I. - - "'s •1-: . S ="r: 'ice ~~'w 4.. I • l~ 1},~" i.'. - -f - , a ~ ' - .1. •4.': _ y.. .c - I - :'I. - i ~I~ i .f 1• - •L ' riA - J •J ~ - _ - J _ ~ .i - • . I, . ~ y~. -n Sr _ - ~ ~ - - 'i: ~ ~ ~:'n ,i. ' }'r=mot . - .l r -~1 - :ic . ~ - ,r1 •1 ~ ~7 .Y.. ` a - ':J. ter....: ! 5,.. c- -i. •4` - ".Y: ,'ter •ii ,Y": •i-._ ' f r - - ~ r• - it=-:-r~ _ \ ~ Y' .y{t.~ti 'v*. f'~.y~~. .7<'. i.~~ ~ ~,'.1'?...1 r. `l ..'5:~~-._, .'.i;'r':',i~'~ - _ - ~`'f.C''„'~`•'_1 V,•7 rl f• :'t :1••. .>i'Q ~ _ ,~t~°'~~ -.'J.'.,.,.. ;q , ''.~~'a+'- - e~.•.. „C. :i<ti'S- y'1'i~ •:i. +•y. :nt 1:~'-~ _ .'4~-r - r "w. -.a. ';j^ i. _ ,.>;i~'~~~e1. .-s - ~Y ' :r~~j~ 'Y.?'~t':~'.I?"=,1. r''11.c 71-' .j• i~> `'ti- - =-a.: S .r.. -~,,..f.T.-~. :i` ~il'`: ;5•`'~1~,-.•; t- ._.:i• r? ~.~'4 ~e.f- '11 , TI .7: L L j ^ - _ w.i . t• ~ .C 1y^ -..,ii ~."N' :j': `h:'!' '•f "f7•?tl_ 'i~' ~I.: tr . t:'- . •.`I ~•tL.~•S:: _ Y, R.,~y,. .L' rr •~~.i is `1,51: Lim' * }ih'd.: . I'~.. 4. .s4:r ~•..d Y ~V/ `L. t. y` .J %t?. v.1'j ' '~y I"'} :~t•!H d` -.~•M "F.' >a• ',1..• r ,s' ~ 2.+c ~'t~'-' ~ ~}y'- f _ _ . ,.b :"l; ~~,,fr :!r.. ~ t - t ~ • -,~>S! . ~ fi - . 9'.. rf :.,.~•,i~,yt : , 1, . r. ~S• r+'• _Y' ,li Zr 'S:. .'t•: =.t`^ '.~r°. ..r.ra.r~<`t~'_ •.>a': f<,~ -.~r s`, il;r. rl_' ~~-1G- ru: •f' ytY•n ~ _ ~uGi".~-v~+ J•, r~~ . ,i:_ _ .~a .-Sy. _c„~. ,,v• v. L,~-L `v. M f ~j~ ~:.~~=t-i :7-..•~. Y'a =z`„"`~trt*aKiY.i.~,Z,:• `-,:7~yi _ y,X (,{y~~,. ,t • ~.l"' - '%Z'~".ra^rr.. ••r ..,,,y ..,x~- r•.•G - •.:Yt j! -1cti. Ji Ct~: v :2 ,~1 -r _ :i~ . ~'-fas+. ~'L ~Tv~'~ ,1... ~.^JL. ' l:' ^i~' a- •nlr.' .:LX r 1 :oT. ~q,1±G_I . ...x.:::- " ,•a .c .IIV a... .~r,'.~Y' ~ ` . ,:'t - :r;:i`.S ?y .J. ~~Y .•G,•~~i ~i. •ur'~-i-.+'.:a-.vY".~al. ~ x'=w ~(j~•h::r,• .i', ~.C . ,a i•: " pia. '`.t1'.:K~_~.r _ ~ ':h.' :.3ts.... .a ..'^1~. c: !t f. •'~':,,v __r! ~.•.a fir. .t • ~ ~ w?' ' . 9. i. f!%i .'a • Ir ; , - ,~:1-!- Vin' _ ~ _ "R °~~L, ~'s~ ~ -r. .1^i: aY.'s::.: t~ 1-y ~:i .,.-.1 .~c1t7 i.;~~~, r S-~;• '1 •,i'~' i•' .cs'~k `i.~ - :is "-+t' '~.;ir~~';t.. ..~",t'''v'~y;1~'~„•~'f,.l~'~1'..t:t.1 yt.n - ~'at~•>F- ~ k,, '~i`-j~~'' 'f •'4i1..r,`+~'~r;r~rv. ~./•~-`~'.'f~r... ~t. .?3,.M~r - . -~.r ,t•,s,~:4- '''y~`~lr. .:l.:v.' :e, ,fit.` ,4•`,'S' -Y..-y;•. J?' .'~:y `a. . ~ _L ~~~•1c". i`,A ti `~.?`.~:ay f.~. r~.1. :~.'Y~':.~.:rr: t.- rr• . _ ; ,~r. .,.~h~~ ,.~,v • r::~ 'v-•! <y' ~'w y._ :si +t. ••.`-v;;,LaZ ,.4R.. ..~H ~~i.,. y`•'c.!;•'• ••r~Y:. s.~:. 7.~`~ ~ rl • 'L~ - `t Y" , f ~ i, ? .rLtit.~ •/y'k:*a. ~^4~,.,. -A~1~~1 y • ~ _ ; ~ ~ ' - fi,~.t'L S 31' ~••i'4. J}. jn -.~!'7,4.i1..:r :e, -.4t~ifi/~~. ~d.--C'S~`• `i_3"~. '•r=~t+ - 'z~~L .4., " ~4r .~r, : ~„y'~.;. •r+-v "~s~ ~1,!~~Waf. t. ;ate. 4; r ~~S ~ ~ Y' d Fn .1,. t.l... i~yT:J^"r-1;....n _ t y \ v ~ r.f~<,t~., - 'r" ~~ar./a?=<,ci !:r'~ f~:i: +~.~1, f- t~ < ....•1 ii•.~ ~ 1c',yi. ~ 7•~.-iC..:r r` _ Ir.'::;~`~'~ •I?- - ••k f. , .~j ,,t. . r,,~-. C,:+~' ~ 4~; ~ _L~'^ ~4y"•'j 'Cifi. ~.c'Ir ~h?;.~ -'a 1 'J~ ~ Yh . .•g 1~~111 •2k7,_ .y 2'~~S •i i<...~~-)-• 1;. ~,`_•..~'j,.: \'a`*~f~.~' ~'id.~ ~ l~.a f. > > ti. .tli~C t'-'Fr-.h~,i ~ C tT. ~ • xI • ~ _ `r.1 ~~?~~t.~)ry,F' ~s•~ry1 _ - `t r' ~ ~„e " ~ Y`~yYr~1'~~~~; '!~i.~ri~ ~r•i~ ~,•.,y'~'~' F, S;; ; - 1'c. '~'t, .t ,y;~J~" ;+5~-, r, h,,; t•• 7.~ +•i'~ 1I~ • ~Ti",:~1 S. :i. = 1 ~ ° ~ .i .i.`f'~t_f tr w ~ ..~yy~~,,• ¦ >T%5 N i r^• .•,~'rQ'7>`~~~ i.*. w 1. ;y_ ~f.:' ~dr !L ~•.s''L 1~'° .rye t.,vs:;~t'.-t:;::.~ '~•!7t t:i /1(,7'x'1 , :t r ' •~i ~"i z ra f * ~~a~~..c ~ j~~,t,'~ ~i t ~~}vrv''4i'~LryY?t •y • r ~ ~.•y. . . ' ~ ''.i~1~ ~ ,?i. jL £~vf7-'-2 !+,•~r!;, r a'. F,S+y`Y'' C•:'sS 1-. f: u\. Y:Yet pr y ~ ~ < ('~`'K r' F~dyr,~~4 7 ~:.r t~~rq~. F. ``'t~~• Y~•4 ~ d,` t . - - +r =S?;;;•>7I" 4 ? +r• , ~~~'~`-'''T,FFFr~~~6''"~~''{~77~a~''"Y•f~~~r.•~"~i•a 3'x,1: ,-r:,~y~~~•• -;j ,.ice' ,-~k:: v-` 's y.:L-_~' f•,~, ^~1}+'. ~,i,". ' . _ - _ _ .~r _ j / =c i,..-. +y 4t,~.aw ~i r;~`r.~.ir., r,v " y'~,•.~?. -i/k `7f': ,.•K._< .~ri: P~21'0 ~Y 'C 'C.. '•~.~..'_~.i~'~,.~d~y,Cs, ..n'Y7 ~~'~~~~••s. i•,;1~ py `'rn.. r.. t' .7: :'L' i~ •'~~^~~=++:Jl~ ~ ~ c ,;~T„~~~+ fi', :4 C t~ ~Y,~'..• :may.. .i~.f:'. ;j-~ r. W, ael.f.-e: •h.. -n~"~L~~:~f ~y . ~i'k'•w~rr Tltn%+~).R....~ '.L~~"i'~' a.S ~~~•-pia .:.1`••' ~ir+d;'t?Mb!• - ..~1 •~li a1.S _.f. ;Xr}~y'< Pw .~ds~~~~ ~ ,or :Y•~4.*.jl~i,t~.'•~:,1 ....k•. ':1.... - '~z'-' ,.i:. v j; L''~.`.- • -iR;r ~ 'stir' J' a ~;il :.'S' t.Y.-I -r~.. v*•!~...~ .~i_'t.~: . -'.~.-^•,~.~..r: ~c, =-~5' .r';i`~..;r: ..f`;, c / `i3.y 'fy. ryr.,, ~.4~: ti? t?~d~'f`.=' :~T- .,c, ~,t .r.~ r ~e- ~i.rk[.k:.. '-t`= ~ .r ~ ~ ~:;'S '}'rte F + ACi~:": ,w r. 1. k..~,•~~--~"-; ~ i;,¢.ti _ .~'y..:_N~• ~1 ~.~~1 -dy~.A:t,`! •:-~.T,.~'<~~`th~r~~.~'; °If 7'~.E:'~C~~. .iY.i.l r,ii;!r.vLL? . - .'.O~ "..L r.r;:: ~yrt' r:.17'^~i 4::.~ _ '~Y:r:. 7~ ~a' . t. -.+,!,,<7 S'a,'t -Y-. r„ ,,fir :r~~''Sj ^4 '!~~'~~n:`~ 't, isJ~,:-<~:iir, 9•aj - ..1:.,,,yr i; ,J:~,-<..s,.y..., T::'~`' fi''iy'd..-. ~~y~ ;~{]rr. L k' we}"~ ,~.1'%.'`~' {•'_Rf •a :-5. • ••r,; `>S_. - .,l~.r~: _ ^,uvv.~'~:~y~:. "T~~K!"+•f, _ `~i ~1 ~ {a{,,~114~•: .I..t)'iws /•°.t1``.%Yr ~".7 i~''!'-.. _Ywr`r.~l.•~t• 1 ~:T , - i,..Y>,^t I"~ :i'\• :LY' fMi.r ~.q <a.io •~v'a''111.t`~.;• h, ~,~.r.n.. -rti-I r~; a} .;i r-'`: ~~C ~,-~i~f`1'1.~-Szi~~xt.:... - - -ti: • •~,,~i_'.:y ti :a:r,_. --•!r :'-s,. tom'-. •}~.~~ppii F',. a' ; y.._ 7:'t' ~.Y..,!;`,'~. "e+ .,r:_i'{_ci1..7:-G~- `y<+rn•y _.hrtr-., ..L'~r%J i ....~_r.•. _1,b'rt~^.~i ~t_..t~,:'.:: n - 1, 1 ':~°G' ;t~--' `r,..... ?~,y"~ 5~' `z - err .,ri ~,lY~•- '1.r-1.Z<+`•a ?:.r,..: :k.~ zt s.. .?.T"•."i. -~r..•..,. •r6ti" }'r~;W, ,~~`~•~:.j`..t~.• .r. • - - - R,... _,s~-Y,~.,. ~t' .n. Z:._P..,f . i'.~'--' .~1~' ":C-_i .A e-,' . a ';~.~A .~r j.~ '~_Y+,~. ' ~?"'-4 `:p ~:L: { 's+'sy~.k.' a-~.~>~5~.•1•,., '3::!.v.r t..4.~~5~~'.~!.~'. i~''~'j•!!,~,~~ `}S "~'~l~";;; yIt - ~7,,,, .w, w~_' - -:'i. ..l~. L_t Z: fem. ~t.. ,,a+~~~!:c.1 i. :a --t :Y: .~`1 •`r S-., q~cS~r '(V~ ~c~ IY.P I.•~i4\.+l.I''•,.~•.)F ,.~~/f~~pi:r ~r, Yi ft:• -y •~A ~~.'Frs.}~{ ~;1 ct.$,-.ci ~rl~~~.".. d.- "L' Ir'fl! _ ,.,;,iFj'~'" ~1•...v -C-. - -:2 1r `!!~t'~~~:K•: ` r 1`'~~-i '`i rr f.:, 1".0'3., .1.-`,~~r .~ti; .T~~ i+.~iC1~', f,c••~:- •i-'`-. t. ~4^...~fG'. ~..'X_ ''•-e. J rj,. ~r .r. ./.tt.a. - :.I+•.. i.?;~.i~rF: v. ~~a.`~~,,5:: ~i~ a +<rt~. 1..1 :`x'rl:~--i~~>? ;;~:Jl.'~1~~ •C~~'+•.;~ :i5 r • ~ "`~~f,?,~' 'yy ; ~'.ty .,~f~'. t.ti r~' - } x••,,. !t ~ ti:g'- '~'r •t ~ti+R.rl? ;?`r-t. t;~1~,ii3:^at:~'i~~r:~v ~ ~ ~ •~r ;i+~ V ',~v~~ c - Y•?• s+'~+,y:-~L~. ~w L~siwt t(;~ , err r,t~ y~:.. ;.r, 1 ?`i y,i.> ~ S ~ e * .:4- Y~ _ ' , ~ NIu,,+,: r,• ~y .r ;~:!Y~ Il"- ~'•C'-•: F~Y"s,.,d.~.• ~ y. .!_~~;1,.^ l-~g~T~_ ,7~i~,< i• r'~.,'~. ~'~.y. -C~', ~•~.:..'.7 _ J' F t` r.. c. Y , . ; v' ~ _L J„?_`: Yi~l l,t ` .F~'~i '.y. >'J w ~.~,.r~ •i./•.-i: _ . c--£ ~t-~. ,h4'..; 4'~' ti~~'SJ`•7 f!~•~~rFl~4~'Ijo °':y_~' , '.tn,~ i , ~ :rat ~ Q ~L p 1 L a 1 • ~ I~ ~ I' N 1..;'' ~ . ,.1,r t'<o-•ny~ rte. <y ~ ~.yaV ~r~ • `~-:'~i `:t:~r• ~ 1 n 11 J'~ I~l~,,, t I, 1 I J~!•J ~M I / , } i ~ .1 + ' l' 14 I~(JI U L J li;C' . n~~.",.~'~.',',t lu' 1`'~~. 1• ~ 1 (/il.,lt~.T~f~7`-'t~J~ ~yyz./~ 9~-- y r + I I L.JI1 11_,,ff ~~7~L.II IIY r ~1~ 1111.t~1~ 1111 ~ J 11 / I I~~LLJJ I I.. ILJ• ~ . .~.._..J IIIJ 111 U 1..11 L_J I II,. 1 ,.11f Il.~u .a ,Id' dill I I a ~ L.,~,f1y~,l VS,.11~1 1 I~/y~~ o(w-t, p Yi - ' (:1li.,l ~lr~( •~~.ti`.rr;`ti u r _ pr~i, w,r„ - I .1 1 ' J ~ ~ 11 ~ Y'M~J7lKlJ _ ~ ~ ~I I~ 1 I A"i'1'~Y.. fivL. ~.NW~R lI i"' ~)~1 {jJL.LLJ~ f INR°~R ~y.l"fuJ ~~19~ Nu!~! I I~ ~!'I ~ I ~~I!~~If 1 ~ ! . ca~~, w.lrv etYn+ _Q !a j!i ~ l; Uj - -E~~r ~ ii iu~ iu i . i Dui ~i ui iu ~ . ~ . - - . ~n :s , .1 1 , 1 JI I.....Y .1 I .~.~.1 ~Iy ~y~`I 1 ww N-"" LKY/-V 1~1 3~'r, GITr~AII?r+ ~\I~!~'~ SWt %6" o l'. p~ Rewea Sheol Nu B. Uses, activity and density which provide a compatible, efficient and workable relationship with surrounding uses and activity. The proposed low density housing use is compatible with the surrounding area and is in keeping with the original approved development scenario. C. Compliance with parking and loading requirements as outlined in Chapter 18.52. The total parking requirement for this project is 1~, spaces. The proposal.includes 8 (or 66% of required) enclosed parking spaces and 8 surface spaces dedicated to the 19 dwelling units and 3 spaces dedicated to guest parking, for a total of 19 proposed spaces. There will be 7 parking spaces provided over the required amount. Each individual dwelling unit will meet its parking requirement of 2 with at least 1 enclosed space. The percentage of enclosed parking is less than what was previously required. The staff feels that, with adequate landscaping, this is a better solution because of the increased mass, which would be necessary to enclose the 1 additional parking space needed to meet the 75% enclosed parking requirement. After discussions with adjacent property owners on the lack of available guest parking, the staff recommends that 2-3 guest parking spaces be provided. The applicant is providing 3 spaces. Additional retaining to the east of the guest parking will be necessary in order to accommodate these spaces. Two 6-foot boulder retaining walls with planting incorporated are proposed. With the landscaping adjustments as previously discussed, we feel the impact will be limited. D. Conformity with applicable elements of the Vail Comprehensive Plan, Town policies and Urban Design Plans. . There are no elements of the Town Comprehensive Plan, Town Policies and Urban Design Plans applicable to this project. When the Cascade Village development was t..~YOSed, there was a comprehensive plan developed which provided a balance of long- ~ and short-term housing. The proposal for 6 dwelling units is in keeping with this development plan and, in staff's opinion, is a more aYt,~.,priate density for this property. The staff requests that the PEC consider requiring 1 caretaker unit for the project. However, this is not a staff requirement for approval of the request, as the project is reducing the number of units and GRFA allowed. 9 E. Identification and mitigation of natural and/or geologic hazards that affect the property on which the special development district is proposed. The proposal complies with the Town's floodplain and Gore Creek setback requirements. There are no other hazards on the property. F. Site plan, building design and location and open space provisions designed to produce a functional development responsive and sensitive to natural features, vegetation and overall aesthetic quality of the community. The proposed development is Located on the north end of the t,~.,yerty away from the creek. There are eight mature evergreens on the site which are proposed to remain. The staff feels that the preservation of these trees is essential and special care must be taken to insure that they are saved. There is limited existing landscaping on the remainder of the property which includes a few stands of aspen and 3-4 small evergreens. The applicant is proposing 45 new aspen, 11 cottonwood, 5 flowering crabapple and 25 spruce (6-12' in height). The staff finds that the proposed landscape plan along the north and east property lines provide a sufficient buffer for the adjacent properties. However, we ask that a portion of the proposed landscaping located on top of the berm, to the east of the guest parking, be relocated to the bottom of the berm to better screen the necessary boulder retaining walls. Should any of the proposed evergreens or retaining walls on the east property line encroach on the Westin's property, approval of their location by the Westin will be necessary. The staff feels that the landscaping plan should be revised for the areas along the west and south property lines in order to create a stronger buffer between the adjacent properties. The DRB will review this plan and will give further direction to the applicant on this issue. G. A circulation system designed for both vehicles and pedestrians addressing on and off-site traffic circulation. A 20-foot roadway with a cul-de-sac at the end will provide access to the units. This proposal has been approved by both the Town's Fire Department acid Public Works Department. Access easements are provided across the Millrace project for this parcel. Slight adjustments to the legal description of this easement will be necessary in order to obtain proper alignment between the existing roadway on the Millrace property and the proposed roadway for this project. The applicant will be required to record these adjustments with the Eagle County Clerk and Recorder's office prior to the release of any building permits for the project. 10 . H. Functional and aesthetic landscaping and open space in order to optimize and preserve natural features, recreation, views and functions. The applicant is proposing that the 4 mature evergreens in the area of development remain and the other four adjacent to the creek will be undisturbed. In addition, the staff requests that a revised landscape plan be submitted to the DRB which buffers the project from the recreation path and Millrace development. Views from the surrounding properties will be maintained because of the low base elevation and height of the proposed project in relation to the base grades and heights of the surrounding projects. I. Phasing plan or subdivision plan that will maintain a workable, functional and efficient relationship throughout the development of the special development district. This request will not affect the phasing plan for this SDD. Because the proposal provides parking on-site, the development of this site will no longer depend on the Cascade/Waterford parking structure as previously approved in Scenario 2. In reviewing this proposal, the staff found that there are deficiencies in landscaping within the boundaries of SDD #4. We find that it is appropriate to require additional "off-site" improvements with the approval of this project. Upon review, we feel that 15 (6-10') evergreens should be installed by the applicant along the South Frontage Road, adjacent to the north of the Cascade Club building. We feel that this landscaping would benefit the public appearance of the SDD. The staff will coordinate with the Colorado Department of Highways on this issue. We also believe that 5 evergreens should be installed to the south of the Westhaven Apartment foundations (the Ruins). V. MINOR SUBDIVISION The staff has requested that the applicant complete a minor subdivision for this project to clarify the status of the parcel. The Cosgriff parcel is called out in the SDD by -legal description. There is no record of the parcel being formally platted, although the boundaries are sei k~;~ virtue of being surrounded by platted parcels. VI. STAFF RECOMMENDATION The staff finds that this request meets the purpose and criteria sections of the SDD zone district. Staff feels that this request to decrease numbers of units, GRFA and site coverage is an appropriate plan for the parcel. The architectural and site elements are compatible with the surrounding area. We find that the amount of landscaping is appropriate, but would request the DRB review the specific locations of the plant materials in order to obtain the 11 maximum amount of screening. Some consideration should be given by the PEC to the provision of restricted employee housing on the property in conjunction with the proposal (i.e., a caretaker apartment). However, because the proposal does not request additional density or development rights, the staff feels that it is not appropriate to require employee housing as part of the proposed project. The following are conditions applicable to the staff's recommendation of ayy..,val: 1. An easement from the Westin which allows encroachments of grading and boulder retaining walls onto their property must be submitted prior to DRB review. 2. Approval of deck encroachments into the sewer easement from the Upper Eagle Valley Water and Sanitation District prior to DRB approval. 3. Final approval of grading be received from the Town Engineer prior to Design Review Board approval. 4. Adjustments be made to the access easement across the Millrace project and these changes be recorded with the Eagle County Clerk and Recorder prior to the release of any building permits for this project. 5. 15 (6-10') evergreens be installed along the South Frontage Road adjacent to the Cascade Club building, and 5 (6-10') evergreens be installed to the south of the Westhaven apartment foundations adjacent to Westhaven Drive. CDOH approval will be necessary to install trees along the South Frontage Road. If CDOH approval cannot be obtained, then 10 (6-10') evergreens should be installed adjacent to the Westhaven Apartments. 6. A minor subdivision plat must be recorded with the Eagle County Clerk and Recorder prior to the release of any building permits. c:~pec4nemos~cosgriff.028 12 MILLRACE CONDOMINIIIM ASSOCIATION 1000 S. Frontage Road W., Suite 200 Vail, CO 81657 (303) 476-6953 October 25, 1991 To: Jerry Mullikin, Slifer, Smith and Frampton Ned Gwathmey, Arnold/Gwathmey/Pratt Architects Shelley Mello, Community Development From: Kevin Mactavish Re: Cosgriff Development Copy: Dan Havekost, President, Millrace Board Dr. and Mrs. William Donovan, Interested Owners Douglas Cogswell, Manager, Westin Kay Saulsberry, CMC Association Board I wish tc record for information and other purposes several matters which I and others at Millrace have brought up regarding the plans for developing the Cosgriff parcel. 1. Millrace owners are concerned about construction parking and access. There is no parking available at Millrace for contractors and the like. And it has been stated, and we hope it is definite, that construction access through Millrace can be . avoided by using the CMC Building's loading dock driveway. Permission from that Association and Westin will be necessary for this. 2. Utility locations on the parcel are important before heavy equipment arrives. Gas line(s) and a 440 volt electrical run across and/or around the parcel, as well as the drain line from the Westin plaza ponds. The gas and electrical service Millrace 'and Westin. The drain line belongs to Cascade Village Association. There may be more there! 3. Once the parcel is developed, adjacent property owners should get together and improve the areas where all property lines meet at the north end. 4. There is no overflow parking available at Millrace, now or anticipated. Parking patrol problems can be anticipated. 5. The Millrace access easement location and related issues should be addressed, including who is going to pay for any adjustments. 6. This ueveloped property will be a part of Cascade Village Association. Formulae need to be worked out on its share of assessments and level of participation in that entity. Millrace is glad to see planned improvement of the parcel, and wishes every success to the developer and eventual owners. Millrace will cooperate where matters of mutual interest are concerned, now and when the property is up and operating. ~1~~ ~~-ec~ ~ F~L ~ ~ ~ I . MILLRACE CONDOMINIOM ASSOCIATION 1000 S. Frontage Road W., Suite 200 Vail, CO 81657 (303) 476-6953 October 24, 1991 To: Colorado Mountain Condominium Association Westin Hotel Slifer, Smith and Frampton, Developer--Cosgriff Parcel Town of Vail From: Kevin Mactavish Re: Four Corners Area, Vail The soon to be famous four corners area of Vail could use improvement and beautification, particularly in light of the development of the Cosgriff parcel (tent and volleyball area between Hotel and Millrace). The four corners I am referring to is that area where CMC Building, Westin, Millrace, and Cosgriff properties meet, approximately at the end of the CMC Building's loading dock driveway. In earlier years, this was to have featured a watercourse and pedestrian area, and the driveway was to have ended in a wall which would have visually and operationally cut commercial traffic and activity from view. Now it is an open question. Except that the development of the Cosgriff parcel provides contiguous properties the opportunity or imperative to plan for something with a better impact than unimproved dirt and weeds and gate valve boxes. The Millrace Board wishes to cooperate with the other properties and do something about this area and solve such questions as the bridge that goes to nowhere! Please advise of your interest and willingness to participate in this initiative.