TC Res. No. 2009-19 CONCERNING THE URA/VECTOR BANKRE S LUTION YAO. 09- 19
Se kft -, Z( .1009
A RESOLUTION CONCERNING THE AVON URBAN
RENEWAL AUTHORITY AND ITS LOAN AGREEMENT
WITH VECTRA BANK COLORADO; AUTHORIZING AND
DIRECTING ACTIONS BY THE TOWN MANAGER WITH
RESPECT TO THE PREPARATION OF REQUESTS TO
THE TOWN COUNCIL FOR APPROPRIATION OF FUNDS
FOR THE REPLENISHMENT OF CERTAIN FUNDS
PERTAINING THERETO; AUTHORIZING THE 2049
COOPERATION AGREEMENT; AND OTHER ACTIONS
TAKEN BY THE TOWN IN CONNECTION THEREWITH.
WHEREAS, the Town Council (the "Town Council ") of the Town of Avon,
Colorado (the "Town "), by Resolution No. 07 -20, adopted June 26, 2007, created the Avon
Urban Renewal Authority of the Town ("Authority "); and
WHEREAS, pursuant to Resolution No. 07 -027, adopted on August 14, 2007, the
Town approved the Town Center West Area Urban Renewal Plan (the "Plan ") pursuant to the
Colorado Urban Renewal Law; and
WHEREAS, pursuant to an Indenture of Trust dated as of February 15, 2008 (the
"Indenture "), the Authority has previously issued its Tax Increment Adjustable Rate Revenue
Bonds, Series 2008, in the original aggregate principal amount of not to exceed $25,000,000 (the
"2008 Bonds ") for the purpose of financing the acquisition, construction and equipping of the
project described in the Indenture and the Plan (the "Project "); and
WHEREAS, the Authority is entering into a Loan Agreement (the "Loan
Agreement ") with Vectra Bank Colorado ( "Vectra ") to obtain a loan in the principal amount of
not to exceed $7,200,000 (the "Loan ") in order to finance the costs of refunding the Prior Bonds
(the "Refunding Project "); and
WHEREAS, pursuant to a Cooperation Agreement (the "2009 Cooperation
Agreement ") between the Town and the Authority, the Town will agree, subject to conditions
specified in the 2009 Cooperation Agreement, to loan funds to the Authority for the Refunding
Project and deposit to certain funds in accordance with the Loan Agreement; and
WHEREAS, there will be created under the Loan Agreement a reserve fund (the
"Reserve Fund ") which will be funded initially in the amount of the Reserve Requirement (as
defined in the Loan Agreement), and is required to be maintained at such amount to be used as a
reserve against deficiencies in the payment of principal of or interest on the Loan and in certain
other payments; and
WHEREAS, the Loan Agreement contemplates that if, at any time, the Reserve
Fund is not funded at the Reserve Requirement, the Lender (as defined in the Loan Agreement)
shall notify the Town Manager of any deficiency and the Town Manager shall request that the
Town Council advance sufficient funds pursuant to the 2009 Cooperation Agreement to restore
the Reserve Fund to the Reserve Requirement immediately thereafter; and
WHEREAS, the Town Council wishes to make a non - binding statement of its
present intent with respect to the appropriation of funds for the replenishment of the Reserve
Fund, and to authorize and direct the Town Manager to take certain actions for the purpose of
causing requests for such appropriations to be presented to the Town Council for consideration;
and
WHEREAS, the form of the 2009 Cooperation Agreement is on file with the
Town Clerk.
NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE
TOWN OF AVON, COLORADO:
Section 1. Appropriations to Replenish Reserve Fund. The Town Manager
shall, upon notice from the Lender that the Reserve Fund is not funded at the Reserve
Requirement, prepare and submit to the Town Council a request for an appropriation of a
sufficient amount to replenish the Reserve Fund to the Reserve Requirement. It is the present
intention and expectation of the Town Council to appropriate such funds as requested, within the
limits of available funds and revenues, but this declaration of intent shall not be binding upon the
Town Council or any future Town Council in any future fiscal year. The Town Council may
determine in its sole discretion, but shall never be required, to make the appropriations so
requested. All sums appropriated by the Town Council for such purpose shall be deposited by or
on behalf of the Authority in the Reserve Fund. Nothing provided in this Section 1 shall create
or constitute a debt, liability or multiple fiscal year financial obligation of the Town.
Section 2. ReDayment of AmQun is Appropriated, In the event that the Town
Council appropriates funds as contemplated by Section 1 hereof, any amounts actually advanced
shall be treated as an obligation under the 2009 Cooperation Agreement and shall be repaid by
the Authority, with interest thereon, but shall be payable from and secured solely by the Pledged
Revenue of the Authority, as provided in the 2009 Cooperation Agreement, on a basis expressly
subordinate and junior to that of the Loan and any obligations secured under the Loan
Agreement.
Section 3. Limitation to Loan and Other Obli atg ions Originally Secured by
Loan Agreement. Unless otherwise expressly provided by a subsequent resolution of the Town
Council, the provisions of this Resolution shall apply only to the Reserve Fund originally
established in connection with the Loan and shall not apply to any other additional obligations.
Section 4. Approval and Authorization of the 2009 Cooperation A rg eement.
The form of the 2009 Cooperation Agreement is hereby approved. The Town shall enter into
and perform its obligations under the 2009 Cooperation Agreement, in the form of such
document as is on file with the Town Clerk, with only such changes therein as are not
inconsistent herewith. The Town Manager is hereby authorized and directed to execute the 2009
Cooperation Agreement on behalf of the Town, and the Town Clerk is hereby authorized to attest
to the 2009 Cooperation Agreement.
Section 5. General Repealer. All prior resolutions, or parts thereof,
inconsistent herewith are hereby repealed to the extent of such inconsistency.
Section 6. Effectiveness. This Resolution shall take effect immediately upon
its passage.
P ADOPTED May 26, 2009.
TOWN OP AVON, COLORADO
'nRF�O d Mayor
ATTEST:
APPROVED AS TO LEGAL FORM:
Tow- n tier Town Attorney
3
STATE OF COLORADO )
SS.
TOWN OF AVON }
1, Patty McKenny, the Town Clerk of the Town of Avon, Colorado, do hereby
certify that:
1. The foregoing pages are a true and correct copy of a resolution (the
"Resolution ") passed and adopted by the Town Council (the "Council ") at a regular meeting held
on May 26, 2409,
2. The Resolution was duly moved and seconded and the Resolution was
adopted at the meeting of May 26, 2009, by an affirmative vote of a majority of the members of
the Council as follows:
Name
"Yes"
"No"
Absent
Ronald C. Wolfe
✓
Brian Sipes
`/
Richard Carroll
David Dantas
Kristi Ferraro
Amy Phillips
Buz Reynolds.-
3. The members of the Council were present at such meetings and voted on
the passage of such Resolution as set forth above.
4. The Resolution was approved and authenticated by the signature of the
Mayor of the Town, sealed with the Town seal, attested by the Town Clerk and recorded in the
minutes of the Council.
5. There are no bylaws, rules or regulations of the Council which might
prohibit the adoption of said Resolution.
6. Notice of the meeting of May 26, 2009, in the form attached hereto as
Exhibit A, was posted at the Avon Town Hall, Avon Municipal Complex, One Lake Street, in
the Town, not less than twenty -four (24) hours prior to the meeting in accordance with law.
:,'
(SEAL)
WITNESS my hand and the seal of the Town affixed May 26, 2009,
5
Exhibit A
{Form of Notice of Meeting}
A -1
2009 COOPERATION AGREEMENT (VECTRA FINANCING)
BETWEEN THE TOWN OF AVON AND
THE AVON URBAN RENEWAL AUTHORITY
THIS 2009 COOPERATION AGREEMENT (VECTRA FINANCING) (this
"Agreement "), dated as of May 28, 2009, is made and entered into between the TOWN OF
AVON, COLORADO (the "Town ") and the AVON URBAN RENEWAL AUTHORITY (the
"Authority ").
WHEREAS, the Town is a Colorado home rule municipality with all the powers
and authority granted pursuant to Article XX of the Colorado Constitution and its Town Charter;
and
WHEREAS, the Authority is a Colorado Urban Renewal Authority, with all the
powers and authority granted to it pursuant to Title 31, Article 25, Part 1, Colorado Revised
Statutes ( "C.R.S. ") (the "Urban Renewal Law "); and
WHEREAS, pursuant to Article XIV of the Colorado Constitution, and Title 29,
Article 1, Part 2, C.R.S., the Town and the Authority are authorized to cooperate and contract
with one another to provide any function, service or facility lawfully authorized to each
governmental entity; and
WHEREAS, the Town has heretofore approved the Avon Urban Renewal
Authority Town Center West Area Urban Renewal Plan (the "Plan ") and the urban renewal
project described therein (the "Urban Renewal Project "); and
WHEREAS, the Urban Renewal Project has been undertaken for the public
purpose of enhancing employment opportunities, eliminating existing conditions of blight, and
improving the tax base of the Town; and
WHEREAS, pursuant to Section 31 -25 -112, C.R.S., the Town is specifically
authorized to do all things necessary to aid and cooperate with the Authority in connection with
the planning or undertaking of any urban renewal plans, projects, programs, works, operations or
activities of the Authority, to enter into agreements with the Authority respecting such actions to
be taken by the Town, and appropriating funds and making such expenditures of its funds to aid
and cooperate with the Authority in undertaking the Urban Renewal Project and carrying out the
Plan; and
WHEREAS, the Authority has previously issued its Tax Increment Adjustable
Rate Revenue Bonds (Town Center West Area Urban Renewal Project) Series 2008 in the
original aggregate principal amount of $25,000,000, and presently outstanding in the aggregate
principal amount of $8,800,000 (the "Prior Bonds "), for the purpose of financing the acquisition,
construction and equipping of the Urban Renewal Project; and
WHEREAS, in connection with the issuance of the Prior Bonds, the Town and the
Authority executed and delivered an Amended and Restated Cooperation Agreement (the "2008
Cooperation Agreement ") pursuant to which the Town agreed, subject to certain conditions, to
loan funds to the Authority for urban renewal purposes; and
WHEREAS, the Authority is entering into a Loan Agreement (the "Loan
Agreement ") with Vectra Bank Colorado, National Association ( "Vectra ") to obtain a loan in the
principal amount of not to exceed $7,200,000 (the "Loan ") in order to finance the costs of
refunding the Prior Bonds (the "Refunding Project "); and
WHEREAS, the Town Council of the Town (the "Council ") has adopted its
Resolution 09 -19, Series 2009 (the "2009 Replenishment Resolution ") declaring its nonbinding
intent and expectation that it will appropriate any funds requested, within the limits of available
funds and revenues, in a sufficient amount to replenish the Reserve Fund to the Reserve
Requirement, for the purpose of providing additional security for the payment of principal and
interest on the Loan as defined in the Loan Agreement; and
WHEREAS, the Town Council has determined that it is in the best interest of the
Town and the Authority has determined it is in the best interest of the Authority, that the 2008
Cooperation Agreement be superseded and replaced in its entirety with this Agreement.
NOW, THEREFORE, in consideration of the mutual promises set forth below, the
Town and the Authority agree as follows:
I. DEFINITIONS. Capitalized terms not otherwise defined herein shall
have the meanings ascribed to them in the Loan Agreement.
2, 2008 COOPERATION AGREEMENT. This Agreement hereby
supersedes and replaces in its entirety the 2008 Cooperation Agreement.
3. PLEDGED PROPERTY TAX REVENUES.
(a) The Authority shall use Pledged Property Tax Revenues for
purposes described in the Loan Agreement and for any other lawful purpose, as permitted by the
Act.
(b) To the extent lawfully possible, the Town will take no action that
would have the effect of materially reducing Pledged Property Tax Revenues.
4. LOAN. (a) If the Council appropriates funds pursuant to the
Replenishment Resolution, such funds shall be a loan from the Town to the Authority to be
repaid as provided herein.
(b) The Town may advance to the Authority amounts to be used by the
Authority for costs incurred for its staffing, consultants, design, engineering, construction, and
other expenses in connection with the Plan and the Refunding Project, including any amounts
advanced prior to the date hereof, which amounts include the $190,000 previously advanced by
the Town under the 2008 Cooperation Agreement (the "Prior Advance "). Such amounts shall be
subject to annual appropriation by the Town Council, and the Town shall not be obligated to
2
advance any money to the Authority pursuant to the terms hereof if amounts are appropriated
by the Town Council, such amounts may be paid directly to the Authority by the Town or, at the
request of the Authority, paid to third - parties by the Town on behalf of the Authority. Each
amount advanced shall constitute a loan to the Authority in an amount equal to such advance, to
be repaid as provided herein.
(c) The Town hereby authorizes the Authority to utilize the services of
certain Town employees as determined by the Town to assist the Authority in work related to the
Plan and the Refunding Project. The Authority shall, upon request of the Town, reimburse the
Town for the applicable percentage of each such employees' wages or salary and benefits, as set
forth in writing by the Town. The use of such employees by the Authority and the proportionate
cost of their services shall be deemed an advance by the Town and the obligation to pay for such
services is hereby designated a loan from the Town to the Authority to be repaid as provided
herein. The Town may, in its discretion, choose not to seek reimbursement of such costs in order
to assist the Authority with the implementation of the Plan.
(d) The Town shall retain the right to establish the employees' wages
or salary and benefits, and the right to discharge, reassign, or hire employees to perform the
services required by the Authority. Except for the percentage of time devoted to the Authority
activities which shall be under the direction or control of the Executive Director of the Authority,
the Town retains the right to direct and control the employees. The Town, as the employer, has
the responsibility for payment of salary or wages to the employee, and for reporting,
withholding, and paying any applicable taxes with respect to the employees' wages or salary and
payment of Town sponsored employee benefit plans and payment of unemployment
compensation insurance as may be required. The Town also retains the right to provide for the
welfare and benefit of employees through such programs as professional training. The Authority
shall not have any responsibility for the payment or reporting of remuneration paid to the Town's
employees, all of such responsibilities being the obligation of the Town. The Town intends to
retain the right to maintain the employment relationship between the Town and its employees on
a long term, and not a temporary basis.
(e) In the event of any employment related issues with employees
assigned to work with the Authority, the Executive Director of the Authority shall report such
concerns or issues promptly to the Town Manager, who shall be responsible for addressing such
concerns.
(f) Any advances or loans made pursuant to this Agreement, including
the Prior Advances, shall be reimbursed to the Town to the extent there are Pledged Revenues
available for such purposes pursuant to the Loan Agreement. To the extent that such advances
and /or loans are not paid, the Town may, by resolution, forgive all or any portion of such
advances and/or loans at any time.
(g) Any other amounts advanced or loaned to the Authority by the
Town or payments made or debts incurred by the Town on behalf of the Authority relating to the
Plan, the Urban Renewal Project, the Loan or the Refunding Project may be designated a loan
from the Town to the Authority to be repaid as provided herein.
5. PAYMENT. (a) All amounts payable by the Authority to the Town
hereunder, including the Prior Advances, shall constitute "Permitted Subordinate Debt" for
purposes of the Loan Agreement. The Authority shall cause such amounts to be paid from and to
the extent of Pledged Revenue (as defined in the Loan Agreement) available for the payment of
Permitted Subordinate Debt in accordance with Section 5.11(c) of the Loan Agreement.
(b) Due to the benefits gained by the Town from the Urban Renewal
Project, no interest will be due on the amounts advanced or loaned to the Authority by the Town
unless the Town and the Authority agree in writing that interest shall be paid on any such loans
or advances.
6. FURTHER COOPERATION. (a) The Town shall continue to make
available such employees of the Town as may be necessary and appropriate to assist the
Authority in carrying out any authorized duty or activity of the Authority pursuant to the Urban
Renewal Law, the Plan, the Urban Renewal Project, the Loan or the Refunding Project, or any
other lawfully authorized duty or activity of the Authority.
(b) The Town agrees to assist the Authority by pursuing all
lawful procedures and remedies available to it to collect and transfer to the Authority on a timely
basis all Pledged Revenue for deposit with Vectra in accordance with the Loan Agreement. To
the extent lawfully possible, the Town will take no action that would have the effect of reducing
tax collections that constitute Pledged Revenue.
(c) The Town agrees to pay to the Authority any Pledged
Property Tax Revenues (as defined in the Loan Agreement) when, as and if received by the
Town, but which are due and owing to the Authority pursuant to the Urban Renewal Plan.
7. $UBORDiNATION. The Authority's obligations pursuant to this
Agreement, including the Prior Advances, are subordinate to the Authority's obligations for the
repayment of any current or future bonded indebtedness. For purposes of this Agreement, the
term "bonded indebtedness," "bonds" and similar terms describing the possible forms of
indebtedness include all forms of indebtedness that may be incurred by the Authority, including,
but not limited to, general obligation bonds, revenue bonds, revenue anticipation notes, tax
increment notes, tax increment bonds, and all other forms of contractual indebtedness of
whatsoever nature that is in any way secured or collateralized by revenues of the Authority, and
including the Loan.
8. GENERAL PROVISIONS. (a) Dispute Resolution. If a dispute arises
between the parties relating to this Agreement, the parties agree to submit the dispute to
mediation prior to filing litigation.
(b) Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Colorado and shall be subject to the
limitations, if any, that are applicable under the Charter or the ordinances of the Town.
4
(c) Separate Entities. Nothing in this Agreement shall be interpreted
in any manner as constituting the Town or its officials, representatives, consultants or employees
as the agents of the Authority, nor as constituting the Authority or its officials, representatives,
consultants or employees as agents of the Town. Each entity shall remain a separate legal entity
pursuant to applicable law. Neither party shall be deemed hereby to have assumed the debts,
obligations or liabilities of the other.
(d) Third Parties. Neither the Town nor the Authority shall be
obligated or liable under the terms of this Agreement to any person or entity not a party hereto,
other than Vectra.
(e) Modifications. No modification or change of any provision in this
Agreement shall be made, or construed to have been made, unless such modification is mutually
agreed to in writing by both parties with the prior written consent of Vectra and incorporated as a
written amendment to this Agreement. Memoranda of understanding and correspondence shall
not be construed as amendments to the Agreement.
(f) Entire Agreement. This Agreement shall represent the entire
agreement between the parties with respect to the subject matter hereof and shall supersede all
prior negotiations, representations or agreements, either written or oral, between the parties
relating to the subject matter of this Agreement and shall be independent of and have no effect
upon any other contracts.
(g) SeverabilL. If any provision of this Agreement is held to be
invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired.
(h) Notices. All notices and other communications hereunder shall be
sufficiently given and shall be deemed given when delivered or mailed by first class mail,
postage prepaid, addressed as follows:
If to the Town:
Town of Avon, Colorado
P.O. Box 975
Avon, Colorado, 81620
Attention: Town Manager
If to the Authority:
Avon Urban Renewal Authority
P.O. Box 975
Avon, Colorado, 81620
Attention: Executive Director
The Town or the Authority may, by notice given hereunder, designate any further
or different addresses to which subsequent notices or other communications shall be sent.
5
(i) Termination. This Agreement may not be terminated by either
party so long as the Loan, Bonds Additional Bonds or other Obligations of the Authority are
outstanding. So long as the Authority does not have any outstanding Loans, Bonds, Additional
Bonds, or Obligations, and does not owe any amounts to the Town under this Agreement, either
party may terminate this Agreement in writing upon thirty (30) days written notice to the other
party.
0) Assignment. This Agreement shall not be assigned, in whole or in
part, by either party without the written consent of the other and of Vectra.
(k) 'Waiver. No waiver of a breach of any provision of this Agreement
by either party shall constitute a waiver of any other breach or of such provision. Failure of
either party to enforce at any time, or from time to time, any provision of this Agreement shall
not be construed as a waiver thereof. The remedies reserved in this Agreement shall be
cumulative and additional to any other remedies in law or in equity.
C
IN WITNESS HEREOF, the parties have caused this Agreement to be executed by their
duly authorized officers on the date above.
AVON URBAN RENEWAL
AUTHORITY
By:
Chairman
APPROVED AS TO LEGAL FORM
B.
uthority Attorney
7
992264.1
TOWN OF AVON, COLORADO
ATTEST:
a-,
APPROVED AS TO LEGAL FORM
By: �
Town Attorney
IM
To: Honorable Mayor and Town Council
Thru: Larry Brooks, Town Manager
From: Scott Wright, Asst. Town Manager - Finance(2_1
Date: May 21, 2009
Re: Replenishment Resolution No. 09 -19
Summary:
The Town Council will have one action item regarding the Avon Urban Renewal
Authority loan agreement. The Council will consider taking action on a resolution (the
"Replenishment Resolution "). This resolution authorizes the Town to enter into the 2009
Cooperation Agreement (Vectra Bank) between the Town and the Authority and
supersedes the 2008 Cooperation Agreement previously entered into between the two
parties.
This Replenishment Resolution expresses the Town's non - binding intent to replenish the
bond reserve fund if the Authority ever needs to use the reserve fund to pay for the bonds,
and sets forth amounts previously advanced by the Town to the Authority.
Financial Implications:
The Town's obligations under the Replenishment Resolution are subject to annual
appropriation and would only be necessary in the event of a draw -down against the bond
reserve fund.
Recommendation:
Recommend approval of Resolution No. 09 -19
Page 1
® RESOLUTION NO. 09-19
SERIES OF 2009
A RESOLUTION CONCERNING THE AVON URBAN
RENEWAL AUTHORITY AND ITS LOAN AGREEMENT
WITH VECTRA BANK COLORADO; AUTHORIZING AND
DIRECTING ACTIONS BY THE TOWN MANAGER WITH
RESPECT TO THE PREPARATION OF REQUESTS TO
THE TOWN COUNCIL FOR APPROPRIATION OF FUNDS
FOR THE REPLENISHMENT OF CERTAIN FUNDS
PERTAINING THERETO; AUTHORIZING THE 2009
COOPERATION AGREEMENT; AND OTHER ACTIONS
TAKEN BY THE TOWN IN CONNECTION THEREWITH.
WHEREAS, the Town Council (the "Town Council ") of the Town of Avon,
Colorado (the "Town "), by Resolution No. 07 -20, adopted June 26, 2007, created the Avon
Urban Renewal Authority of the Town ( "Authority "); and
WHEREAS, pursuant to Resolution No. 07 -027, adopted on August 14, 2007, the
Town approved the Town Center West Area Urban Renewal Plan (the "Plan ") pursuant to the
Colorado Urban Renewal Law; and
WHEREAS, pursuant to an Indenture of Trust dated as of February 15, 2008 (the
"Indenture "), the Authority has previously issued its Tax Increment Adjustable Rate Revenue
Bonds, Series 2008, in the original aggregate principal amount of not to exceed $25,000,000 (the
"2008 Bonds") for the purpose of financing the acquisition, construction and equipping of the
project described in the Indenture and the Plan (the "Project "); and
WHEREAS, the Authority is entering into a Loan Agreement (the "Loan
Agreement ") with Vectra Bank Colorado ( "Vectra ") to obtain a loan in the principal amount of
not to exceed $7,200,000 (the "Loan") in order to finance the costs of refunding the Prior Bonds
(the "Refunding Project "); and
WHEREAS, pursuant to a Cooperation Agreement (the "2009 Cooperation
Agreement ") between the Town and the Authority, the Town will agree, subject to conditions
specified in the 2009 Cooperation Agreement, to loan funds to the Authority for the Refunding
Project and deposit to certain funds in accordance with the Loan Agreement; and
WHEREAS, there will be created under the Loan Agreement a reserve fund (the
"Reserve Fund ") which will be funded initially in the amount of the Reserve Requirement (as
defined in the Loan Agreement), and is required to be maintained at such amount to be used as a
reserve against deficiencies in the payment of principal of or interest on the Loan and in certain
other payments; and
WHEREAS, the Loan Agreement contemplates that if, at any time, the Reserve
Fund is not funded at the Reserve Requirement, the Lender (as defined in the Loan Agreement)
shall notify the Town Manager of any deficiency and the Town Manager shall request that the
Section 5. General Repealer. All prior resolutions, or parts thereof,
inconsistent herewith are hereby repealed to the extent of such inconsistency.
Section 6. Effectiveness. This Resolution shall take effect immediately upon
its passage.
ATTEST:
PASSED AND ADOPTED May 26, 2009.
Town Clerk
TOWN OF AVON, COLORADO
Mayor
APPROVED AS TO LEGAL FORM:
Town Attorney
C
(SEAL)
WITNESS my hand and the seal of the Town affixed May 26, 2009.
Town Clerk
2009 COOPERATION AGREEMENT (VECTRA FINANCING)
BETWEEN THE TOWN OF AVON AND
THE AVON URBAN RENEWAL AUTHORITY
THIS 2009 COOPERATION AGREEMENT (VECTRA FINANCING) (this
"Agreement "), dated as of May 28, 2009, is made and entered into between the TOWN OF
AVON, COLORADO (the "Town ") and the AVON URBAN RENEWAL AUTHORITY (the
"Authority ").
WHEREAS, the Town is a Colorado home rule municipality with all the powers
and authority granted pursuant to Article XX of the Colorado Constitution and its Town Charter;
and
WHEREAS, the Authority is a Colorado Urban Renewal Authority, with all the
powers and authority granted to it pursuant to Title 31, Article 25, Part 1, Colorado Revised
Statutes ("C.R.S. ") (the "Urban Renewal Law "); and
WHEREAS, pursuant to Article XIV of the Colorado Constitution, and Title 29,
Article 1, Part 2, C.R.S., the Town and the Authority are authorized to cooperate and contract
with one another to provide any function, service or facility lawfully authorized to each
governmental entity; and
WHEREAS, the Town has heretofore approved the Avon Urban Renewal
Authority Town Center West Area Urban Renewal Plan (the "Plan") and the urban renewal
project described therein (the "Urban Renewal Project "); and
WHEREAS, the Urban Renewal Project has been undertaken for the public
purpose of enhancing employment opportunities, eliminating existing conditions of blight, and
improving the tax base of the Town; and
WHEREAS, pursuant to Section 31 -25 -112, C.R.S., the Town is specifically
authorized to do all things necessary to aid and cooperate with the Authority in connection with
the planning or undertaking of any urban renewal plans, projects, programs, works, operations or
activities of the Authority, to enter into agreements with the Authority respecting such actions to
be taken by the Town, and appropriating funds and making such expenditures of its funds to aid
and cooperate with the Authority in undertaking the Urban Renewal Project and carrying out the
Plan; and
WHEREAS, the Authority has previously issued its Tax Increment Adjustable
Rate Revenue Bonds (Town Center West Area Urban Renewal Project) Series 2008 in the
original aggregate principal amount of $25,000,000, and presently outstanding in the aggregate
principal amount of $8,800,000 (the "Prior Bonds "), for the purpose of financing the acquisition,
construction and equipping of the Urban Renewal Project; and
WHEREAS, in connection with the issuance of the Prior Bonds, the Town and the
Authority executed and delivered an Amended and Restated Cooperation Agreement (the "2008
advance any money to the Authority pursuant to the terms hereof. If amounts are appropriated
by the Town Council, such amounts may be paid directly to the Authority by the Town or, at the
request of the Authority, paid to third - parties by the Town on behalf of the Authority. Each
amount advanced shall constitute a loan to the Authority in an amount equal to such advance, to
be repaid as provided herein.
(c) The Town hereby authorizes the Authority to utilize the services of
certain Town employees as determined by the Town to assist the Authority in work related to the
Plan and the Refunding Project. The Authority shall, upon request of the Town, reimburse the
Town for the applicable percentage of each such employees' wages or salary and benefits, as set
forth in writing by the Town. The use of such employees by the Authority and the proportionate
cost of their services shall be deemed an advance by the Town and the obligation to pay for such
services is hereby designated a loan from the Town to the Authority to be repaid as provided
herein. The Town may, in its discretion, choose not to seek reimbursement of such costs in order
to assist the Authority with the implementation of the Plan.
(d) The Town shall retain the right to establish the employees' wages
or salary and benefits, and the right to discharge, reassign, or hire employees to perform the
services required by the Authority. Except for the percentage of time devoted to the Authority
activities which shall be under the direction or control of the Executive Director of the Authority,
the Town retains the right to direct and control the employees. The Town, as the employer, has
the responsibility for payment of salary or wages to the employee, and for reporting,
withholding, and paying any applicable taxes with respect to the employees' wages or salary and
payment of Town sponsored employee benefit plans and payment of unemployment
compensation insurance as may be required. The Town also retains the right to provide for the
welfare and benefit of employees through such programs as professional training. The Authority
shall not have any responsibility for the payment or reporting of remuneration paid to the Town's
employees, all of such responsibilities being the obligation of the Town. The Town intends to
retain the right to maintain the employment relationship between the Town and its employees on
a long term, and not a temporary basis.
(e) In the event of any employment related issues with employees
assigned to work with the Authority, the Executive Director of the Authority shall report such
concerns or issues promptly to the Town Manager, who shall be responsible for addressing such
concerns.
(f) Any advances or loans made pursuant to this Agreement, including
the Prior Advances, shall be reimbursed to the Town to the extent there are Pledged Revenues
available for such purposes pursuant to the Loan Agreement. To the extent that such advances
and/or loans are not paid, the Town may, by resolution, forgive all or any portion of such
advances and/or loans at any time.
(g) Any other amounts advanced or loaned to the Authority by the
Town or payments made or debts incurred by the Town on behalf of the Authority relating to the
Plan, the Urban Renewal Project, the Loan or the Refunding Project may be designated a loan
from the Town to the Authority to be repaid as provided herein.
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(c) Separate Entities. Nothing in this Agreement shall be interpreted
in any manner as constituting the Town or its officials, representatives, consultants or employees
as the agents of the Authority, nor as constituting the Authority or its officials, representatives,
consultants or employees as agents of the Town. Each entity shall remain a separate legal entity
pursuant to applicable law. Neither party shall be deemed hereby to have assumed the debts,
obligations or liabilities of the other.
(d) Third Parties. Neither the Town nor the Authority shall be
obligated or liable under the terms of this Agreement to any person or entity not a party hereto,
other than V ectra.
(e) Modifications. No modification or change of any provision in this
Agreement shall be made, or construed to have been made, unless such modification is mutually
agreed to in writing by both parties with the prior written consent of Vectra and incorporated as a
written amendment to this Agreement. Memoranda of understanding and correspondence shall
not be construed as amendments to the Agreement.
(f) Entire Agreement. This Agreement shall represent the entire
agreement between the parties with respect to the subject matter hereof and shall supersede all
prior negotiations, representations or agreements, either written or oral, between the parties
relating to the subject matter of this Agreement and shall be independent of and have no effect
upon any other contracts.
(g) Severability. If any provision of this Agreement is held to be
invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired.
(h) Notices. All notices and other communications hereunder shall be
sufficiently given and shall be deemed given when delivered or mailed by first class mail,
postage prepaid, addressed as follows:
If to the Town:
Town of Avon, Colorado
P.O. Box 975
Avon, Colorado, 81620
Attention: Town Manager
If to the Authority:
Avon Urban Renewal Authority
P.O. Box 975
Avon, Colorado, 81620
Attention: Executive Director
The Town or the Authority may, by notice given hereunder, designate any further
or different addresses to which subsequent notices or other communications shall be sent.
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v
IN WITNESS HEREOF, the parties have caused this Agreement to be executed by their
duly authorized officers on the date above.
AVON URBAN RENEWAL
AUTHORITY
By:
Chairman
ATTEST:
Executive Director /Secretary
APPROVED AS TO LEGAL FORM
By:
Authority Attorney
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TOWN OF AVON, COLORADO
0
Town Manager
ATTEST:
Town Clerk
APPROVED AS TO LEGAL FORM
I:
Town Attorney