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HomeMy WebLinkAboutIGA Solaris Metro District 1, 2 ,3 and TOV INTERGOVERNMENTAL AGREEMENT BETWEEN THE TOWN OF VAIL, COLORADO, SOLARIS METROPOLITAN DI5TRICT NO. 1 , SOLARIS METROPOLITAN DISTRICT NO. 2, AND SOLARI5 METROPOLITAN DISTRICT NO . 3 THIS AGREEMENT is made and entered into as of this 22nd day of March, 2007 , by and between the TOWN OF VAN DISTRICT NO �1 �SOLARIShMETROPOLITAN DISTRICT� and SOLARIS METROPOLITA uasi-munici al co orations and NO . 2, and SOLARIS METROPOLITAN DISTRICT NO. 3 , q p � political subdivisions of the State of Colorado (the "Districts") . The Town and the Districts are collectively referred to as the Parties . RECITALS WHEREAS , the Districts were organized to provide those services and to exercise powers as are more specifically set forth in the Districts ' Service Plan, approved by the Town on September 19, 2006 ("Service Plan") ; and WHEREAS , the Service Plan makes reference to the execution of an intergovernmental agreement between the Town and the Districts ; and WHEREAS , the Town and the Districts have determined it to be in the best interests of their respective taxpayers, residents and property owners to enter into this Intergovernmental Agreement ("Agreement") . 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 . Ouerations and Maintenance. The Districts shall operate and maintain the Public Improvements (as defined in the Service Plan) in a manner consistent with the Development Agreement or other Approved Development Plan, and otherwise subject to the rules and regulations of the Town and applicable provisions of the Town Code. 2 . Construction Standards. The Districts will ensure that the Public Improvements are designed and constructed in accordance with the standards and specifications of the Town and of other governmental entities having proper jurisdiction, as applicable. The Districts will obtain the Town' s approval of civil engineering plans and will obtain applicable permits for construction and installation of Public Improvements prior to performing such work. 1 3 . Issuance of Privatelv Placed Debt. Prior to the issuance of any privately placed Debt, the Districts shall obtain the certification of an External Financial Advisor substantially as follows : We are [I am] an External Financial Advisor within the meaning of the District' s Service Plan. We [I] certify that ( 1 ) the net effective interest rate (calculated as defined in Section 32- 1 - 103 ( 12) , C .R. S .) to be borne by [insert the designation of the Debt] does not exceed a reasonable current [tax- exempt] [taxable] interest rate, using criteria deemed appropriate by us [me] and based upon our [my] analysis of comparable high yield securities ; and (2) the structure of [insert designation of the Debt] , including matuthe financial c rcumstances o fhe D strictis reasonable considenng 4 . Incl_• The Districts shall not include within any of their boundaries any property outside the Service Area (as defined in the Service Plan) without the prior written consent of the Town Council . 5 , Total Debt Issuance. The Districts shall not issue Debt in excess of $20 million. 6 . Debt Issuance Limitation. The Districts shall not be authorized to incur any indebtedness until such time as the Districts ha�e approved and executed this Agreement. '7 . Monies from Other Governmental Sources . The Districts shall not apply for or accept Conservation Trust Funds, Great Outdoors Colorado Funds, or other funds available from or through governmental or non-e mlent with the Town.� This Sec�tion hallnot for, except pursuant to an intergovernmental agr apply to specific ownership taxes which shall be distributed to and a revenue source for the Districts without any limitation. g . Bankruptcv• All of the limitations contained in the Service Plan, including, but not limited to, those pertaining to the Maximum Debt Mill Levy and the Maximum Debt Mill Levy Imposition Term have been established under the authority of the Town to approve a Service Plan with conditions pursuant to Section 32- 1 -204 . 5 , C .R. S . It is expressly intended that such limitations : (a) Shall not be subject to set-aside for any reason or by any court of competent jurisdiction, absent a Service Plan Amendment; and (b) Are, together with all other requirements of Colorado law, included in the "political or governmental P�e also included in the "segulatory or telec o al Bankruptcy Code ( 11 U . S .C .) Section 903 , and approval necessary under applicable nonbank de Section"943 (b)(6)red for con firmation o f a Chapter 9 Bankruptcy Plan under Bankruptcy Co 2 9 . Debt Issuance Limitations . Any Debt, issued with a pledge or which results in a pledge, that exceeds the Maximum Debt Mill Levy and the Maximum Debt Mill Levy Imposition Term, shall be deemed a material modification of the Service Plan pursuant to Section 32- 1 -207, C . R. S . and shall not be an authorized issuance of Debt unless and until such material modification has been approved by the Town as part of a Service Plan Amendment. 10. Dissolution. Upon an independent determination of the Town Council that the purposes for which the Districts were created have been accomplished, the Districts agree to file petitions in the appropriate District Court for dissolution, pursuant to the applicable State statutes . In no event shall dissolution occur until the Districts have provided for the payrnent or discharge of all their outstanding indebtedness and other financial obligations as required pursuant to State statutes . 11 . Disclosure to Purchasers . The Districts will use reasonable efforts to assure that all developers of the property located within the Districts provide written notice to all purchasers of property in the Districts regarding the Maximum Debt Mill Levy, as well as a general description of the Districts ' authority to impose and collect rates, fees, tolls and charges. The form of notice shall be filed with the Town prior to the initial issuance of the Debt of the Districts imposing the mill levy which is the subject of the Maximum Debt Mill Levy. 12 . Service Plan Amendment Requirement. Actions of the Districts which violate the limitations set forth in V.A. 1 -6 or in Section VI . B-G of the Service Plans shall be deemed to be material modifications to the Service Plan and the Town shall be entitled to all remedies available under State and local law to enjoin such actions of the Districts . 13 . Annual Report. The Districts shall be responsible for submitting an annual report to the Town Manager' s Office no later than August 1 st of each year following the year in which the Order and Decree creating the Districts has been issued, containing the information set forth in Section VII of the Service Plan. 14 . Maximum Debt Mill Lew. The "Maximum Debt Mill Levy" shall be the maximum mill levy the Districts are permitted to impose upon the taxable property within the District for payment of Debt, and shall be determined as follows : (a) For the portion of any aggregate District ' s Debt which exceeds 50% of the District' s assessed valuation, the Maximum Debt Mill Levy for such portion of Debt shall be fifty (50) mills less the number of mills necessary to pay unlimited mill levy Debt described in Section VLC .2 of the Service Plan; provided that if, on or after January 1 , 2007, there are changes in the method of calculating assessed valuation or any constitutionally mandated tax credit, cut or abatement; the mill levy limitation applicable to such Debt may be increased or decreased to reflect such changes, such increases or decreases to be determined by the Board in good faith (such determination to be binding and final) so that to the extent possible, the actual tax revenues generated by the mill levy, as adjusted for changes occurring after January 1 , 2007, are neither diminished nor enhanced as a result of such changes . For purposes of the foregoing, a change in the ratio of actual valuation shall be deemed to be a change in the method of calculating assessed valuation. 3 (b) For the portion of any aggregate District' s Debt which is equal to or less than 50% of the District ' s assessed valuation, either on the date of issuance or at any time thereafter, the mill levy to be imposed to repay such portion of Debt shall not be subject to the Maximum Debt Mill Levy and, as a result, the mill levy may be such amount as is necessary to pay the Debt service on such Debt, without limitation of rate. (�) For purposes of the foregoing, once Debt has been determined to be within Section VII . C . 2 of the Service Plan, so that the District is entitled to pledge to its payrnent an unlimited ad valarem mill levy, the District may provide that such Debt shall remain secured by such unlimited mill levy, notwithstanding any subsequent change in the District' s Debt to assessed ratio . All Debt issuedS . a d all other r quirement ofState lawliance with the requirements of Section 32- 1 - 1101 , C .R. To the extent that the District is composed of or subsequently organized into one or more subdistricts as permitted under Section 32- 1 - 1101 , C .R. S . , the term "District" as used herein shall be deemed to refer to the District and to each such subdistrict separately, so that each of the subdistricts shall be treated as a separate, independent district for purposes of the application of this definition. 15 . Maximum Debt Mill Levv Imposition Term. The Districts shall not impose a levy for repayment of any and all Debt (or use the proceeds of any mill levy for repayment of Debt) on any single property developed for residential uses which exceeds forty (40) years after the year of the initial imposition of such mill levy unless a majonty of the Board of Directors of the District are residents of th`e1D e ult n a net p esent value sa�ngs as set forth a part or all of the Debt and such refund g �� in Section 11 - 56- 101 , C .R. S . ; et seq. 16 . 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 address or by courier delivery, via United Parcel Service or other nationally recognized overnight air courier service, or by depositing same in the United States mail, postage prepaid, addressed as follows : To the Districts : Solaris Metropolitan District No . 1 Solaris Metropolitan District No . 2 Solaris Metropolitan District No . 3 1805 Shea Center Drive, Suite 100 Highlands Ranch, CO 80129 Attn: William P . Ankele, Esq. Phone: (303 ) 858- 1800 Fax : (303 ) 858- 1801 To the Town: Town of Vail 75 S . Frontage Road Vail, CO 81657 Attn: Matt Mire, Town Attorney Phone: (970) 479-2460 Fax : (970) 479-2157 4 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 United 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 . 16 . 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 and without amendment to the Service Plan. 17 . 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 consent will not be unreasonably withheld. Any purported assignment or delegation in violation of the provisions hereof shall be void and ineffectual . 18 . Default/Remedies . 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 terms, covenants or conditions hereof, the prevailing Party/Parties in such proceeding shall be entitled to obtain as part of its judgment or award its reasonable attorneys' fees . 19 . Governing Law and Venue. This Ageement shall be governed and construed under the laws of the State of Colorado . 20. Inurement. Each of the terms, covenants and conditions hereof shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and assigns. 2 L Inte agr tion. This Agreement constitutes the entire agreement between the Parties with respect to the matters addressed herein. All prior discussions and negotiations regarding the subject matter hereof are merged herein. 22 . Parties Interested Herein. Nothing expressed or implied in this Agreement is intended or shall be construed to confer upon, ar to give to , any person other than the Districts and the Town 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 Districts and the Town shall be for the sole and exclusive benefit of the Districts and the Town. 23 . Severabilitv. If any covenant, term, condition, ar 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. 5 � 24 . 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. 25 . Para�raph Headin�s . Paragraph headings are inserted for convenience of reference only. 26 . Defined Terms . Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Service Plan. SOLARIS METROPOLITAN DISTRICT NO . 1 Attest: '�j By: By' ; President S cre SOLARIS METROPOLITAN DISTRICT NO . 2 Attest : � By: By' President Secretary SOLARIS METROPOLITAN DISTRICT NO . 3 Attest: � By: BY President Secretary TOWN OF VAIL, COLORADO Attest: , By: __ By� �a� `7ew „ 1�Iana9e� Its : �'�W�N �0��' '•. APPROVED AS TO FORM : �� ,�'' �;' own Attorney , .� �� � : ' .� .��� ��f•���� ��Aao . 6