HomeMy WebLinkAboutEasement Agreement - May 14, 2008This EMENT AGREEMENT (this "Easement" or "Easement Agreement") is entered lyl
into this �� day of 2008 {the "Effective Date "), by and between /
SOLARIS PROPERTY ONVRENOIC, a Colorado limited liability company, its successors and
assigns (collectively, "Solaris"), and SOLARIS METROPOLITAN DISTRICT NO. 1, a quasi- ED
municipal corporation and political subdivision of the State of Colorado (the "District").
CITALS
WHEREAS, the District, together with the Solaris Metropolitan District No. 2, and the
Solaris Metropolitan District No. 3 (collectively the "Districts "), were organized for purposes of
financing, constructing or otherwise providing certain public improvements in connection with
the development of a project known as "Solaris" within the Town of Vail, Colorado (the
"Project "). and
WHEREAS, such public improvements are being provided by the District for the benefit
of future property owners, residents and taxpayers within the Project; and
WHEREAS, Solaris is the owner of the real property on which the Project is being
constructed, as described in Exhibit A, attached hereto and incorporated herein by this reference
(the "Property" "); and
WHEREAS, certain of the public improvements being furnished by the District are not
located upon existing public rights of way, and the parties desire to provide for the necessary
interests in those portions of the Property upon which certain Public Improveuents (as such
capitalized term is defined below) will be constructed, to support the District's expoWiture of
public funds, to provide for public access and use with respect to the public improvements, and
to permit the District to own, operate, repair and maintain such public improvements as
hereinafter set forth; and
WHEREAS, the public improvements consist of pla7a improvements, pedestrian and
vehicular ways, perimeter landscaping and appurtenances, and other public improvements,
including but not limited to grading, paving, elevated walkways and structural components
thereof, ice skating facilities, public fountains, streetscaping, lighting, landscaping, water, sewer
and storm drainage (the "Public Improvements "); and
WHEREAS, the Public Improvements, when completed, will be located in the areas
generally depicted on Exhibit B, attached hereto and incorporated herein by this reference (the
"Easement Property"); and
WHEREAS, because the Public Improvements have not yet been completed, the
parties desire to provide for this Easement initially to be recorded against the Property, subject to
the replacement hereof, with a specific legal description for Easement Property within which the
Public Improvements shall lie at the time of their construction and installation completion, or
from time to time as such Public Improvements arc completed, as hereinafter set forth;
Please return toe Garfield dt Hecht, P.C.
PO Box 5450, Avon, CO 81620
200811070 1011
NOW, THEREFORE, in consideration of the Recitals set forth above and for other good
and valuable consideration, the receipt and sufficiency of which is hereby acknowledged and
agreed, and subject to the terms and conditions hereof, the parties agree as follows:
COVENANTS AND AGREEMENTS
1. Grant of Easement Solaris hereby grants to the District, its agents, contractors,
employees, licensees, invitees, utility service providers, successors, and assigns, including the
general public (collectively, the "District Permitteee), a perpetual, non - exclusive easement over and
upon the Easement Property for public use and ingress and egress in, to, through, over, and across
and for the construction, reconstruction, operation, repair, maintenance and/or replacement of the
Public Improvements and all other facilities and improvements appurtenant thereto, (but not for
parking, except in any particularly designated areas) (the "Easement "). Upon completion of
construction of the entire Solaris residential and commercial improvements, as evidenced by one or
more Certificate(s) of Occupancy issued by the appropriate govemniental authority the parties shall
cooperate to survey the actual reasonable location(s) of the Easement(s) within the Easement
Property, as generally rcfe moved herein. Such survey shall be performed at the expense of Solaris,
whereupon the parties shall enter into a supplement to this Agreement in recordable form
replacing Exhibit B attached hereto with a new Exhibit B. It is further agreed that the general
anticipated location of the Easements) at inception of this Agreement may be changed to the
extent necessary to accommodate actual conditions on the ground encountered at the time the
survey is prepared.
All costs of said operation, maintenance and repair of the Public Improvements,
appurtenant facilities and improvements, and ingress and egress access shall be borne solely by the
District. The District shall further own, subject to the rights of public use described in the
provisions of this Section 1 above, operate and maintain all of the Public Improvements.
2. Indernniificatior� To the extent permitted by law and so long as Solaris owns the
Sotaris Property, the District shall indemnify, defend and hold harmless Solaris its designees,
agents, employees, officers, member, successors and assigns (the "Solaris Permittees") from any
and all costs, liabilities and claims of any kind and nature whatsoever (including, without limitation,
reasonable attorney's fees related thereto) arising from the District`s said opeaticm, maintenance and
repair of the Public Improvements, appurtenant facilities and improvements, and ingress and egress
access on and about the Easement Property (the "Public Improvement Operations"). The District
shall be solely responsible for the health and safety of all of the District Permittees who enter upon
and use the Easement Properly, as well as for the damage to any Selarris Property, any Solaris
Permittees and third parties utilizing the Easement Property. Accordingly, to the fullest extent
permitted by law, the District heresy releases, acquits and forever discharges Solaris and the Solaris
Permittees from and against any and all losses„ costs, claims, and liabilities including without
limitation, injury to or death or any person or persons or damage to or destruction of any property,
arising out of the Districts' or the Districts' Permittees use of the Easement Property under this
Agreemennt, except for the willful misconduct or negligence of Solaris and the Solaris Petmittecs.
200811070 2011
3. lnsurancx The District further agrees to add Solaris as additional insured on its
comprehensive general liability insurance policy, which insurance shall be maintained by the
District to provide protection against liability from claims arising out of the use of the Easement
Property.
4. Maintenance The District, its agents, successors and permitted assigns, shall have
and exercise the right of ingress and egress in, to, through, over, under and act= the Easement
Property for purposes necessary for the operation, use and maintennce of the Public Improvements.
Solaris expressly acknowledges that, as a result of this Easement Agreement, the Easement Property
herein shall be open to the general public as such times as the District may in its reasanarble
discretion designate for public use and enjoyment which shall be and remain at all times in
accordance with any Town of Vail requirements and agreements with SoMs in effect upon
recordation of this Agreement. Notwithstanding the foregoing, Solaris may establish reasonal;►le
rules and regulations from time to time for and limitations on the Easement Property after good faith
consultation with the District; provided, however, that such regulations and limitations must be
generally uniform in nature and may not discriminate among Solaris (or its successors), the district
Permittees and the Town of Vail in the property enjoyment of the Easement Property or
unreasonably interfere with the District's use of the Easement Property and benefits of this
Easement Agreement by and to the District, its successors and permitted assigns, as described
herein. No such rules and regulations shall be adopted or enforceable, to the extent the District
determines that application of same would adversely affect the tax - exempt status of any bonds
issued by any of the Districts.
5. Overati The District shall procure all inventory, parts, tools, chemicals,
equipment and other supplies necessary to perform the Public Improventertt Operations.
6. No Obstruction Solaris shall not construct or place any permanent structure or
building, or plant any permanent shrub, tree, woody plant, or nursery stock on any part of the
Easement Property, except with the prior written consent of the District, which consort shall not be
unreasonably withheld. Notwithstanding the foregoing, the District acknowledges and agrees that
certain items associated with remvittion and resort activities, including, but not limited to, event
signage, may be placed on the Easement Property by Solaris so long as such items do not
unreasonably interfere with the use rights granted to the District herein, and such use by Solaris
shall not require approval by the District. The. District may, at its sole cost and expense, remove any
structure or building so constructed or placed on the Easement Property by Solaris as is necessary to
construct, reconstruct, operate, repair, maintain and/or replace the Easement and any part thereof,
provided, however, the District shall cause such structure or building to be rebuilt to substantially
the same condition as existed immediately prior to such removal following complexion of such
construction, reconstruction, operation, repair, maintenance and/or replacement.
7. US. The District shalt have the right to enter upon the Easement Property and to
survey, construct, reconstruct, operate, use, maintain, repair, replace and remove the Easement and
any part thereof, and to remove objects interfering therewith, including but not limited to those
items improperly placed on the Easement Property under paragraph 6 hereof. In addition, the
District shall have the right to use so much of the adjoining premises of Solw* its suers and
assigns, during surveying, constructing, reconstructing„ operating using, maintaining, repairing,
200811070 3 or 11
replacing and/or removal of the Easement as may be reasonably required; provided however that
such activities shall not unreasonably interfere with the use and enjoyment of such adjoining
premises by Solaris, its successors, assigns, guests and permittees. The District shall repair any
damage caused to any adjoining premises and the improvements thereon by its surveying.
constructing, reconstructing, operating, using, maintaining, repairing, nr�laaing and/or removal of
the Easement, and shall be liable for any injury to person or damage to property to the extent arising
out of the District% use of the Easement.
8. Assignability It is expressly understood and agreed that the District shall have the
right and authority to assign the Easement to any appropriate local government entity or to any
public utility provider, including but not limited to, all rights of use, and all obligations associated
with, the Easement as are granted to and assumed by the District herein, subject to such assignee
assuming the obligations set forth herein and Solaris'reasonable written approval thereto.
9. Nonexclusive The Easement shall be nonexclusive, and Solaris shall retain all
rights to use and enjoy the Easement for any uses or purposes that are consistent with Solaris'
ownership of and operations on the Easement Property, provided, however, that Solaris shall not
use, grant any third party interests, or otherwise permit the use of the Easement Property in a
manner that contradicts the District's use of the Easement for the purposes granted herein..
10. Tide. Solaris warrants, covenants, grants, bargains and agrees to and with the
District that it is well seized of the Easement Property conveyed herein and that it has good, sure,
perfect, absolute and indefeasible estate of inheritance, in law, in fee simple and has good right, full
power and lawful authority to grant, bargain, sell and convey the same in manner and form as
aforesaid, and that the same are five and clear from all former and other grants, bargains, sales,
liens, taxes, assessments, encumbrances and restrictions of whatever hind or nature, except matters
of record. Solaris firrdux promises and agrees to warrant and forever defend the District in the
exercise of the District's rights hereunder against any defect in the title to the Easement Property and
the right to make the grant herein described, except matters of record and matters apparent.
11. Binding Nature Each and every one of the benefits and burdens of this Easement
Agreement shall inure to and be binding upon the respective legal representatives, administrators,
successors and permitted assigns of Solaris and the District.
12. Run with Land The rights and responsibilities set forth in this Easement Agreement
are intended to be covenants on the Easement Property and are to run with the said land.
13. Reservation of Ri Solaris reserves the right to grant further easement interests
in the Easement Property to other grantees so long as such interests and uses are not inconsistent
with, or unreasonably interfere with, the District's use of the Easement Property and benefits of this
Easement Agreement by and to the District, its successors and permitted assigns, as described
herein.
14. Govening_Law This Easement Agreement Mall be construed in accordance with
and governed by the laws of the State of Colorado.
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15. Entire A�ement This Easement Agreement constitutes the entire agreement
between Solaris and the District concerning the subject matter herco� and supessedes any prior or
contemporaneous agreements between the parties concerning the subject matter hereof.
16. No Waiver Nothing herein shall be construed as a waiver of the rights and
privileges of the District pursuant to the Colorado Governmental Immunity Act, §§ 2410 -101 et
seq., C.R.S., as amended from time to time.
17. R . This Easement Agreement and attached Exhibits A and B shall be
recorded in the records of the Clak and Recorder for Eagle County, Colorado.
18. Caunteroarts This Easement Agreement may be executed in are or more
counterparts, each of which shall be deemed an original, aril all of which tagetit r shall constitute
one and the same instrument.
DATED the year and day first above written.
SOLARIS PROPE O LLC, a Colorado
limited . ..
EY
Name: 4,LA A?-.
Title: ,Q...-0 . -„ .�
STATE OF COLORADO )
) ss.
COUNTY OF EAGLE )
e foregoing instrument was acknowledged before me this day of
2008 by f? 120f as of
SOIARI OWNER, LL t, a Colorado limited liability company.
Witness my hand and official seal.
My commission expires:
KORM L. OAMA A
MARY PUBUC
STATE OF COLOMW
tilt' OommNsIon Ezplrn FetruM 12, 2012
No Public
200811070 5011
SOLARIS METROPOLITAN DISTRICT NO. 1,
a quasi-municipal corporation and political
subdivision of the State of Colorado
By: �,9"`ti
Title-
STATE OF COLORADO )
) ss.
COUNTY OF EAGLE
The foregoing instVAent was owl ged before this ALL day of
20*�* rV as of
soLARCMETROPOLrrAN DISTRI NO. I Tin a unicipal corpo ration and political
subdivision of the State of Colorado.
Witness my hand and official seal.
My commission e166 % CMMdM
NOTARY PUSUC
STATE Of CGIBMW
M Asian E*ms FeftW 12.2012---::!K
Notary blic
275371v1 lAgn-A-Elft.Sokria-District-Rd3
200811070 6011
EXHIBIT A
SOLARIS PROPERTY LEGAL DESCRIPTION
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EXHIBIT A
A FM= OF LAND LOCATED WI ION A PAST OF LQr P. BLDpC 5D AND A FAIT OF TRACT
C, VAIL VLLL.AG& JUST FII,II4G, ACCOIWM TO TIM PLAT THBRBOF RBCOWW AT
RBCEFTION Na 10302, TOVIN OF VAN„ COUNTY OF BACLB, VATS OF COLORADO UORS
PARTKAn.ARLY DUCERM AS P(RI.O V3:
CMMPOCZWONM NORITLWBST Cogm OF SAm L.QT P, TRENCH S 74 mmm 40'00" B
M4M TIM MMML.Y I= OF SAID LOT P AND ALSO MM ON THE SOUTHERLY
MCWT -M WAY LM OF MVSTAlM HIGHWAY W 70 A DISTANCE OF 44.16 MT, SAID
POINT BEM THB TIMM POItiL' OF B1fiCI ar..,
'TtIRNCB S 70 DBCRM 41'00` E ALONG SAM NORTH I= OP SAM LOT P, TRACT C, AND
SAID SOTlT MLY 4V -WAY LVIN OF SAM MM TM HIGHWAY N0. 76 A DATANCZ
OF 4ZL40 FEET TO A POW ON TIM WINMRL.Y AND NORTHERLY EG TT4WWAY L E OF
BAS? bdMDOW DRIYB: TIMRM ALONG SAID VItB M LY AND NORTRULY MGHT4)F WAY LVM
OF SAID BASF laADOW DKO TIM FOLLOWING FLUE 0) CpURSIS&
L) S 11 Dzcuw 33'J3' W iuA FBET TO A PQLNP OP CUIVAnit&
1) 27.37 FBST ALONG SAID CURVETIMMING TO TIMRRITHAVING A CENTRAL. AN= OF 31
DBGRBBS irw, A RAIIITJS OF N.00 MT AND A Clow WHICH BEARS S 21 DlIGRBBS
20'11' W A DLSTANCB OF MA FEET TO A POWT OF TANGENT;
3) S 0 DSMM 10'00' W 00.30 FPr TO A POINT OF CURVA'T M
4) 211A4 FEET ALONG A CIJWR TURNING TO TIM RKM LAVING A CENTRAL ANGLE OF 41
DBO M IVW, A IAMIS Of 310.71 FEET AND A CHORD WHICH BEARS S 13 DBGRUS
I6'W W A DWANCR OF 371.00 F=,
S) N U DBGRM 1.4'06` W A D14TAM OF 130.= FBAT TO 7M SOtTTHWBST CORNBI OF
SM LOT P; THBNCB DOA17ING SAID NORTLIS.Y RIM. OMAY IBM OF SAM BAST
MRADOW DRIVE N 00 DSGRKU 13'00" W ALONG TILE WEST I= OF SAID LOT P A MAKE
OF 210,17 FiitlT, THR= MAIMING SAID WBST I= OF MM LOT P N SO DB+GIM
IIW lI A DISTANCE OF 44AI FEET: TMINCS N 01 DBE 17'43` It A DISTANCE OF
0.12 FBST TO TIM TRT R POINT OP BBGII(KING.
200811070 9 at 11
EXHIBIT B
GENERAL DEPICTION OF PUBLIC IMPROVEMENTS WITHIN THE EASEMENT
PROPERTY
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200911070 11 of 11
INTERGOVERNMENTAL AGREEMENT BETWEEN
SOLARIS METROPOLITAN DISTRICT NO.1
AND TOWN OF VAIL GENERAL IMPROVEMENT DISTRICT NO. 1, TOWN OF
VAIL, COLORADO
THIS AGREEMENT is made and entered into as of this 22nd day of Match, 2007, by
and between the SOLARIS METROPOLITAN DISTRICT NO. 1, a quasi - municipal corporation
and political subdivision of the State of Colorado (the "District ") and the Town of Vail General
Improvement District No. 1, Town of Vail, Colorado (the "GID" ). The District and the G@ are
collectively referred to as the Parties.
RECI'T'ALS
WHEREAS, the District was organized concurrently with Solaris Metropolitan District
No. 2 and Solaris Metropolitan District No. 3 (collectively, the "Districts"} to provide those
services and to exercise powers as are more specifically set forth in the Consolidated Service
Plan for Solaris Metropolitan District Nos. 1, 2 and 3, approved by the Town of Vail, Colorado
on September 19, 2006 (the "Service Plan "); and
WHEREAS, the Service Plan makes reference to the execution of an intergovernmental
agreement between the Districts and the GID, which agreement is to be pursuant to the terms
r' contained in the Development Agreement (as defined herein), and which agreement (defined in
the Development Agreement as the "IGN) is a condition of the approval of the GID, pursuant to
Ordinance No. 26 Series 2006 adopted by the Town of Vail (the "Ordinance'); and
WHEREAS, the District, in accordance with the terms of the Service Plan and the
Ordinance, is entering into this Agreement on behalf of the Districts in order to satisfy the
requirements stated above; and
WHEREAS, the Crossroads Development Agreement between the Town of Vail,
Colorado and Crossroads East One, LLC (the "Developer"), dated July 25, 2006 (the
"Development Agreement'), sets forth the provisions for the construction, operation and
maintenance of certain Required Improvements (as defined therein) and states that the
responsibility for the authority to control the use of the Plaza (as defined therein) shall be
delegated, assigned or otherwise conveyed to the GID from the District. The term "Developer,"
as used herein, will include any affiliates of Crossroads East One, LLC, that have any ownership
interests in the Property or any portion thereof from time to time; and
WHEREAS, the District and the GID have determined it to be in the best interests of
their respective taxpayers, residents and property owners to enter into this Intergovernmental
Agreement ( "Agreement') as it will properly allocate various rights and responsibilities
associated with the construction, use, operation and maintenance of the Required Improvements;
reinforce the public character of the Plaza by placing its management in the hands of quasi -
governmental entities; grant the GID authority to control the use of the Plaza and the operation
and maintenance of certain other Required Improvements; and provide a reliable, enduring
financing mechanism to ensure the long -term vitality of such Required Improvements. NOW,
THEREFORE, in consideration of the covenants and mutual agreements herein contained, and
for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereto agree as follows:
COVENANTS AND AGREEMENTS
1. Purpose of Agreement This Agreement is in compliance with the Service Plan
and the Development Agreement, and will constitute the IGA required under the Development
Agreement and the Service Plan.
2. Authority of the District The District shall have the authority to undertake
certain activities pursuant to the Service Plan and Development Agreement, including, but not
limited to, operation and maintenance of the Required Improvements (except to the extent
operated and maintained by the GID pursuant to the following provisions); securing the
financing necessary to perform such functions through the imposition of property taxes and
development fees; and taking such other actions and exercising such other powers, consistent
with the Special District Act, as are necessary for or incidental to the performance of the
District's duties and/or exercise of the District's rights and powers as outlined in the Service
Plan. The foregoing provisions shall not be construed to limit rights and powers otherwise
vested in the District.
3. Delegation .
a. The District hereby delegates to the GID the authority to control the use of
the Plaza for the life of the Special Development District No. 39 (defined in the Development
Agreement as the "SDD "). This authority shall include the power to plan, program, schedule,
administer and regulate all public and special events conducted on the Plaza, and otherwise use
and run the Plaza for the public benefit; provided, however, that all Plaza uses, inching public
and special events, must be consistent with ordinary uses for similar public parks or facilities
within the Town of Vail. The GID further agrees that the Plaza uses may not be materially
inconsistent with the operating standards generally and ordinarily prevailing for a first -class hotel
operation (as described in paragraph 0 below). The GID's rights of operation and control will
also be subject to the applicable provisions and limitations under the Development Agreement,
including, without limitation, the retainer/ rights of Developer to schedule and conduct special
events within the Plaza, and the other limitations on Plaza operations and uses under Section 3(d)
of the Development Agreement.
b. For all community, entertainment and other events conducted within the
Plaza, including, without limitation, special events sanctioned and contracted by the Town of
Vail and/or the GID pursuant to Title 3, Chapter G of the Vail Town Cade (collectively "Plaza
Events'), the District and the GID will mutually establish a form of license agreement that will
govern the entry into the Plaza and the conduct of the particular Plaza Event by the party holding
the Plaza Event (a "Plaza Licensee"), Without limitation on the foregoing, the form of license
agreement will establish appropriate provisions requiring the Plaza Licensee to (i) furnish
general commercial or other liability insurance with suitable amounts of coverage and terms and
naming the District, the GID, the Developer and other owners and occupants within the Property
as additional insureds; (ii) provide contractual releases and indemnities of those parties for any
liability or loss that may arise in connection with the Plaza Event, including, without limitation,
any physical damage suffered by the Plaza, or other portions of the Property or Project;
(iii) furnish clean-up and/or damage deposits and other security as may be appropriate to protect
against any resulting damage to or adverse effws upon the Plaza, or other portions of the
Property and Project; and (iv) adhere to use limitations and regulations (including security
measures) that may be appropriately imposed to prevent any public or private nuisance or protect
persons, property and business interests, or in furtherance of any other bona fide purpose. The
form of license agreement will also be modified or supplemented as necessary from time to time
for particular Plaza Events to address their specific circumstances. Before any Plaza Licensee is
permitted to enter the Plaza, the requisite license agreement must be executed and delivered by
the Plaza Licensee, and in turn accepted and executed and delivered by both the GID and the
District.
C. The District hereby grants the GID an irrevocable license to enter the
Plaza in furtherance of the GID's exercise of its rights and powers hereunder respecting the Plaza,
which license will terminate and be of no further force or effect upon the termination of the SDD.
The District will retain any easement or ownership interests that it has or hereafter acquires in
relation to the Plaza.
d. The GID agrees that the GID shall be solely responsible for and obligated
to bear all liabilities, obligations and losses associated with the use and enjoyment of the Plaza as
provided in Paragraph 3(a) (so long as the GID holds its rights to control the use of the Plaza), as
well as any maintenance of the Plaza undertaken by the GID pursuant to paragraph 0 below, with
the District and Developer to bear no such obligation, loss or liability. The GID will not cause or
suffer any lien or encumbrance to arise against the ownership of the Plaza, or any interest therein,
in connection with the GID's use of the Plaza, or any maintenance of the Plaza by GID pursuant
to paragraph 0 below, or otherwise to arise by, through or under the GID. The GID will
reimburse the District and Developer for any costs and expenses, including reasonable attorneys'
fees, that they may incur in connection with any obligation, loss or liability for which the GID is
responsible, or any claim thereof, or any such lien or encumbrance against the Plaza or any
interest therein (including, without limitation, any sums expended by the District or Developer to
extinguish any such Peen or encumbrance).
e. For purposes of the foregoing provisions, all references to the "Plaza"
shall specifically exclude the Ice Rink, and as set forth in the Development Agreement,
Developer and/or the District will maintain ownership and operating control of the Ice Rink, with
the GID having no rights with respect thereto. In addition, for purposes of this Agreement and
the Development Agreement, the SDD shall be deemed to terminate whenever (i) the Property is
re -zoned to another zone district within the Town of Vail other than "special development
district," or (ii) the SDD becomes the subject of a major amendment (as defined in the Vail
Town Code ordinances governing special development districts) which does not contain an
express stipulation that the GID's use of the Plaza will remain in effect.
4. Authority of the GID In addition to and separately from the GID's rights
hereunder respecting the Plaza, the GID shall be authorized to undertake the management,
operation and maintenance of other specific Required Improvements and the financing required
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in connection therewith pursuant to this Agreement, the Development Agreement, the Service
Plan and the GID organizational documents, provided the District at its election gives its written
consent thereto for any Required improvements located within the Property. The G1D's
obligations under this Agreement respecting its operation, use and maintenance of the Plaza shall
extend and apply to those other Required improvements as well. With respect to the Plaza, the
GID shall only have the power to control the use and operation of the Plaza in accordance with
the foregoing provisions, and to provide the financial resources therefor (which shall be solely
the GID's responsibility), and shall not have any rights to maintain the Plaza except to the extent
expressly set forth hereinafter.
5. Maintenance The District shall have the responsibility for maintaining the Plaza
in material conformance with the standards generally and ordinarily observed by any recognized
first -class hotel operator. The requirements for such standards include but are not limited to
maintaining the cleanliness, proper appearance, character, service and atmosphere of a
destination which would receive a four (4) or five (5) star rating from the Mobil Travel Guide.
However, if there is any damage or physical deterioration to the Plaza exceeding ordinary wear
and tear that results from Plaza Events or other operations by or through the GID, the GID shall
reimburse the District upon demand for all costs and expenses incurred by the District for
maintenance, repairs or replacements undertaken to address such damage or physical
deterioration.
6. GID Maintenance
a. In the event that the District fails to maintain the Plaza consistent with the
standards stated herein, the GID, the Town of Vail or the Developer may provide a written notice
of violation to the District, identifying the nature of the violation or suspected violation and shall
set forth the steps required to abate the violation (the "NOV" }. Within thirty (30) calendar days
following receipt of an NOV, the District shall deliver a written response to the GID, the Town
of Vail and the Developer, which shall contain, at a minimum, the following information:
(1) Acknowledgment that the violation occurred and notice that the
violation has been abated together with a description of the actions taken to abate the violation;
or
(2) Acknowledgment that the violation is occurring and a description
of steps that are being taken to abate the violation together with a proposed timeline for
abatement; or
(3) Notice that the District disputes the NOV together with an
explanation of the basis of the District's disagreement.
(4) Within twenty (20) calendar days following receipt of a response
from the District in accordance with the provisions above, the complaining party shall confirm,
in writing, their agreement or disagreement with the District's response.
(5) If the complaining party disagrees with the District's response, the
parties shall immediately meet to resolve the disagreement.
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b. If a violation by the District continues after a total of sixty (60) days from
the time the complaining party becomes aware of the violation, and the District is not in the
process of curing such violation, then the District shall delegate to the GID the authority to
maintain the Plaza for the life of the SDD; provided however, that the GID shall be required to
maintain the Plaza in compliance with the standards stated herein (including paragraph 0 above),
this Agreement and any other agreement(s) or instrument(s) bearing on the operation and/or
maintenance of the Plaza. The GID shall have no right to undertake Plaza maintenance unless
and until the GID expressly assumes in writing responsibility therefor in accordance with the
terms of this Agreement.
C. In the event that the GID, after assuming the authority to maintain the
Plaza in accordance with the terms herein, fails to maintain the Plaza in accordance with the
required standards, then the District, at its election and without obligation to do so, may enter the
Plaza and undertake the maintenance defaulted by the GID, and upon demand the GID shall
reimburse the District for all costs and expenses, including reasonable attorneys' fees, incurred
by the District in determining to exercise this self - remedy and in its actual exercise. The
foregoing reimbursement obligations of the GID may be enforced only to the extent funds are
appropriated by and available to the GID for the Plaza maintenance.
7. Notices All notices, demands, requests or other communications to be sent by
one party to the other hereunder or required by law shall be in writing and shall be deemed to
have been validly given or served by delivery of same in person to the applicable address, or by
overnight courier delivery, via United Parcel Service or other nationally recognized overnight air
courier service, or by depositing same in the United States mail, certified or registered mail,
return receipt requested, postage prepaid, addressed as follows:
To the District: Solar►s Metropolitan District No. 1
c/o White, Bear & Ankele Professional Corporation
1805 Shea Center Drive, Suite 100
Highlands Ranch, CO 80129
Attn: William P. Ankele, Jr.
Phone: (303) 858 -1800
Fax: (303) 858 -1801
copy to: Solaris/Crossroads Redevelopment
143 East Meadow Drive
Vail, CO 81657 -5248
Attn: Reed Weily, Esq.
Phone: (970) 479 -7566
Fax: (970) 479 -6666
6
To the GID: Town of Vail General Improvement District No. 1
Town of Vail, Colorado
75 S. Frontage Road
Vail, CO 81557
Attn: Matt Mire, Town Attorney
Phone: (970) 479 -2460
Fax: (970) 479 -2157
All notices, demands, requests or other communications shall be effective upon such
personal delivery, or one (1) business day after being deposited with United Parcel Service or
other nationally recognized overnight air courier service, or three (3) business days after deposit
in the Unites/ States mail. By giving the other party hereto at least ten (10) days written notice
thereof in accordance with the provisions hereof, each of the Parties shall have the right from
time to time to change its address for notice purposes. Any notice may be given on behalf of a
party by its legal counsel.
8. Amendment This Agreement may be amended, modified, changed, or terminated
in whole or in part only by a written agreement duly authorized and executed by the Parties
hereto.
9. Assignment No Party hereto shall assign any of its rights nor delegate any of its
duties hereunder to any person or entity without having first obtained the prior written consent of
all other Parties, which may be withheld in their discretion. Any purported assignment or
delegation in violation of the provisions hereof shall be void and ineffectual. In the case of any
permitted assignment or delegation, the assigning or delegating Party shall remain primarily
liable for its obligations and duties hereunder.
10. DefnilttRernedies In the event of a breach or default of this Agreement by any
Party, the non - defaulting Parties shall be entitled to exercise all remedies available at law or in
equity, specifically including suits for specific performance and/or monetary damages. In the
event of any proceeding to enforce the teams, covenants or conditions hereof, the prevailing
Party/Parties m such proceeding shall be entitled to obtain as part of its judgment or award its
reasonable attorneys' fees.
11. Governing Law and Venue This Agreement shall be governed and construes/
under the laws of the State of Colorado.
12. Inurement Each of the terns, covenants and conditions hereof shall be binding
upon and inure to the benefit of the Parties hereto and their respective successors and assigns (the
foregoing being without limitation on paragraph 0 above).
13. Integration This Agreement constitutes the entire agreement between the Parties
with respect to the matters addressed herein. All prior discussions and negotiations regarding the
subject mutter hereof are merged herein.
14. Parties Interested Herein Nothing expressed or implied in this Agreement is
intended or shall be construed to confer upon, or to give to, any person other than the District and
7
the GID any right, remedy, or claim under or by reason of this Agreement or any covenants,
terms, conditions, or provisions thereof, and all the covenants, terms, conditions, and provisions
in this Agreement by and on behalf of the District and the GID shall be for the sole and exclusive
benefit of the District and the GID. Notwithstanding the foregoing, however, the Developer and
other ownerVoccupants within the Property shall be express third -party beneficiaries of the
provisions hereunder that are intended to run to their benefit.
15. Severabilitv If any covenant, term, condition, or provision under this Agreement
shall, for any reason, be held to be invalid or unenforceable, the invalidity or unenforceability of
such covenant, term, condition, or provision shall not affect any other provision contained
herein, the intention being that such provisions are severable.
15. Counterparts This Agreement may be executed in one or more counterparts, each
of which shall constitute an original and all of which shall constitute one and the same document.
17. Paragraph. Headings Paragraph headings are inserted for convenience of
reference only.
18. Defer Tom Capitalized terms used herein and not otherwise defined shall
have the meanings ascribed to therm in the Development Agreement.
SOLARIS METROPOLITAN DISTRICT
NO. 1
Attest.
B y: B y:
Presi
3 r •. � �- I aar ' M
C5 .
TOWN OF VAIL
GENERAL IMPROVEMENT DISTRICT
NO.1
TOWN OF VAIL, COLORADO
'� 1/ �
SOLMDIAGT MER1438031507
0930,0302