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HomeMy WebLinkAboutIGA SolarisGID i 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 March, 2007, by and between the SOLARIS METROPOLITAN DISTRICT NO . 1 , a quasi-municipal corparation 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 GID are collectively referred to as the Parties. RECITALS 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 contained in the Development Agreement (as defined herein), and which agreement (defined in the Development Agreement as the "IGA") 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 AgreemenY'), 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 ("AgreemenY') 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 A�reement. 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 . Authoritv 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, including 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 retained 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 6 of the Vail Town Code (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 3 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 effects 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 lien 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. Authoritv 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 4 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 GID ' 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. 5 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: Solaris 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 81657 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 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 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. 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. 11 . Governing Law and Venue. This Agreement shall be governed and construed under the laws of the State of Colorado . 12 . 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 (the foregoing being without limitation on paragraph 0 above) . 13 . 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. 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 y r 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 owners/occupants 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. 16 . 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 . Para�raph Headings. Paragraph headings are inserted for convenience of reference only. 18 . Defined Terms. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Development Agreement. SOLARIS METROPOLITAN DISTRICT NO. 1 Attest: li By: By: Secretary Presid TOWN OF VAIL GENERAL IMPROVEMENT DISTRICT NO. 1 TOWN OF VAIL, COLORADO By: a '� S �e. By: � Its : a✓" SOLMD\AGTSUv1ER1458031607 0950.0302 g