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AMENDED AND RESTATED COOPERATION AGREEMENT® AMENDED AND RESTATED COOPERATION AGREEMENT BETWEEN THE TOWN OF AVON, COLORADO AND THE AVON URBAN RENEWAL AUTHORITY THIS AMENDED AND RESTATED COOPERATION AGREEMENT (this "Agreement") dated as of February 12, 2008, is made and entered into between the TOWN OF AVON (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 is WHEREAS, the Town has heretofore approved the Avon Urban Renewal Authority Town Center West Urban Renewal Plan (the "Plan") and the urban renewal project described therein (the "Project"); and WHEREAS, the Project is being 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 Project and carrying out the Plan; and WHEREAS, the Authority is issuing its Tax Increment Adjustable Rate Revenue Bonds (Town Center West Urban Renewal Project) Series 2008, in the original aggregate principal amount of not to exceed $25,000,000 (the "Bonds") for the purpose of financing the acquisition, construction and equipping of the Project; and ® WHEREAS, the Town Council of the Town (the "Council") has adopted its 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 Bond Reserve Fund to the Bond Reserve Requirement (the "Replenishment Resolution") as defined in the Indenture of Trust dated as of February 15, 2008 (the "Indenture"), between the Authority and UMB Bank, n.a., as trustee (the "Trustee"); and WHEREAS, the Town and the Authority previously approved a cooperation agreement dated as of August 28, 2007 (the "Original Cooperation Agreement"); and WHEREAS, the Town and the Authority have determined that it is in the best interest of the Town and the Authority to amend and restate the Original Cooperation Agreement to incorporate provisions relating to the Bonds and the Replenishment Resolution. NOW, THEREFORE, in consideration of the mutual promises set forth below, the Town and the Authority agree as follows: 1. DEFINITIONS. Capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Indenture. 2. PLEDGED PROPERTY TAX REVENUES. (a) The Authority shall use Pledged Property Tax Revenues for purposes described in the Indenture 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. 3. LOAN. (a) If the Council appropriates funds pursuant to the Replenishment Resolution or this Agreement, such funds shall be a loan from the Town to the Authority to be repaid as provided therein or 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 Project, including any amounts advanced prior to the date hereof. Such amounts shall be subject to annual appropriation by the Town Council, and the Town shall not be obligated to 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 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 2 ® 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 shall be reimbursed to the Town to the extent there are Pledged Revenues available for such purposes pursuant to the Indenture. 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. (f) 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 or the Project may be designated a loan from the Town to the Authority to be repaid as provided herein. 4. PAYMENT. (a) When Pledged Revenues (as defined in the Indenture) are available pursuant to Section 3.03(b)(vii) of the Indenture, the Authority shall repay the Town for all amounts due hereunder to the extent that such moneys are available. (b) Due to the benefits gained by the Town from the 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. 5. 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, or any other lawfully authorized duty or activity of the Authority. 3 ® (b) The Town agrees to assist the Authority and the Trustee by pursuing all lawful procedures and remedies available to it to collect and transfer to the Authority on a timely basis all Pledged Revenues for deposit into the Revenue Fund. To the extent lawfully possible, the Town will take no action that would have the effect of reducing tax collections that constitute Pledged Revenues for the Project. (c) The Town agrees to pay to the Authority any Pledged Property Tax Revenues when, as and if received by the Town, but which are due and owing to the Authority pursuant to the Urban Renewal Plan. 6. SUBORDINATION. The Authority's obligations pursuant to this Agreement are subordinate to the Authority's obligations for the repayment of any current or future bonded indebtedness and any obligations owed to any Credit Facility provider (as such term is defined in the Indenture) in support of such 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. 7. GENERAL PROVISIONS. • (a) Original Cooperation Agreement. This Agreement amends and restates the Original Cooperation Agreement in its entirety and replaces such Original Cooperation Agreement. (b) 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. (c) 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. (d) 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. (e) 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 the Bank (as defined in the Indenture). is 4 ® (f) 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 the Bank and incorporated as a written amendment to this Agreement. Memoranda of understanding and correspondence shall not be construed as amendments to the Agreement. (g) Assignment. Except for the pledge under the Indenture, this Agreement shall not be assigned, in whole or in part, by either party without the written consent of the other and of the Bank. (h) 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. (i) 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. 0) Termination. This Agreement may not be terminated by either party so long as the Bonds, Additional Bonds or other Obligations of the Authority are outstanding. So long as the Authority does not have any outstanding 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. (k) Severability. If any provision of this Agreement is held to be invalid, i illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. 5 (1) 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. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] • is 6 0 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 n Town Clerk APPROVED AS TO LEGAL FORM APPROVED AS TO LEGAL FORM BY Authority Attorney BY Town Attorney TOWN OF AVON, COLORADO BY Town Manager ATTEST: 7 765417.4