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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. 3 (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. 5 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 7 TOWN OF AVON, COLORADO 0 Town Manager ATTEST: Town Clerk APPROVED AS TO LEGAL FORM I: Town Attorney