HomeMy WebLinkAbout2013-055-06/18/2013-CONCERNING THE URBAN RENEWAL AUTHORITY AND ITS TAX INCREMENT REVENUE REFUNDING BONDS (NORTH COLLEGE RESOLUTION 2013-055
OF THE COUNCIL OF THE CITY OF FORT COLLINS
CONCERNING THE FORT COLLINS URBAN RENEWAL AUTHORITY AND ITS TAX
INCREMENT REVENUE REFUNDING BONDS (NORTH COLLEGE AVENUE PROJECT),
SERIES 2013, DECLARING THE CITY COUNCIL'S PRESENT INTENT TO
APPROPRIATE FUNDS TO REPL-ENISH THE RESERVE FUND SECURING SUCH
BONDS, IF NECESSARY; AND AUTHORIZING A COOPERATION AGREEMENT AND
OTHER ACTIONS TAKEN IN CONNECTION THEREWITH
WHEREAS, the City Council (the "City Council") of the City of Fort Collins,
Colorado (the "City") has heretofore created the Fort Collins Urban Renewal Authority
("Authority") as an urban renewal authority pursuant to Colorado Revised Statutes, Part 1 of
Title 31, Article 25, as amended (the "Act"); and
WHEREAS, the City Council by Resolution No. 2004-152 approved and adopted
on December 21, 2004 has authorized and approved the "North College Urban Renewal Plan" as
an urban renewal plan under the Act (the "Plan") for the area described therein (the "Plan
Area"); and
WHEREAS, in order to undertake certain urban renewal projects within the Plan
Area, the Authority has previously borrowed money from the City and entered into certain prior
loan agreements with the City and executed certain prior promissory notes (collectively, the
"Prior City Loans") in connection therewith; and
WHEREAS, pursuant to an Indenture of Trust (the "Indenture") between the
Authority and U.S. Bank National Association, as trustee (the "Trustee"), the Authority is
issuing its Tax Increment Revenue Refunding Bonds (North College Avenue Project), Series
2013 (the "Series 2013 Bonds") for the purpose of repaying the Prior City Loans made by the
City to the Authority; and
WHEREAS, a reserve fund (the "Reserve Fund") will be created under the
Indenture to secure the payment of the Series 2013 Bonds and such Reserve Fund is required to
be maintained in an amount equal to the Reserve Fund Requirement (as defined in the
Indenture); and
WHEREAS, the Indenture provides that the Reserve Fund may either be cash
funded or that a reserve fund insurance policy (a "Reserve Fund Policy") may be deposited in the
Reserve Fund; and
WHEREAS, the City 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 or the repayment of any draws made under any Reserve Fund Policy, if necessary, and to
authorize and direct the City Manager to take certain actions for the purpose of causing requests
for any such appropriation to be presented to the City Council for consideration; and
WHEREAS, in connection with the issuance of the Series 2013 Bonds, it is
necessary and in the best interests of the City to enter into a Cooperation Agreement (the
"Cooperation Agreement") between the City and the Authority; and
WHEREAS, there is attached hereto as Exhibit A the proposed form of the
Cooperation Agreement; and
WHEREAS, capitalized terms used herein and not otherwise defined shall have.
the meanings given to them in the Indenture.
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT
COLLINS, COLORADO:
Section 1. Finding of Best Interests and Public Purpose. The City Council
hereby finds and determines, pursuant to the Constitution, the laws of the State and the City's
Charter, and in accordance with the foregoing recitals, that adopting this Resolution, entering
into the Cooperation Agreement, and facilitating the issuance of the Series 2013 Bonds by the
Authority to finance the Refunding Project are necessary, convenient, and in furtherance of the
City's purposes and are in the best interests of the inhabitants of the City; and will serve the
important public purpose of facilitating the repayment of the Prior City Loans by the Authority
to the City.
Section 2. Replenishment of Reserve Fund; Declaration of Intent. To the
extent that the Reserve Fund is cash funded, within 90 days after the City's receipt of the written
notice from the Trustee of a draw on the Reserve Fund, to the extent that such draw has not been
replenished by another source, as provided in Section 4.06 of the Indenture (the "Written
Notice"), the City shall replenish the Reserve Fund to the Reserve Fund Requirement from
legally available funds of the City, subject to appropriation by the City Council in its sole
discretion. Any such City payment (the "City Payment") shall be made directly to the Trustee
for deposit in the Reserve Fund in immediately available funds pursuant to the instructions set
forth in the Written Notice. It is the present intention and expectation of the City Council to
appropriate the City Payment requested in any such Written Notice received by the City, within
the limits of available funds and revenues, but this declaration of intent shall not be binding upon
the City Council or any future City Council in any future fiscal year. The City Payments shall
constitute currently appropriated expenditures of the City.
In the event that a Reserve Fund Policy is deposited in the Reserve Fund and the
City receives written notice from the Trustee that it has drawn on the Reserve Fund Policy and
such draw has not been repaid by another source, the City shall repay the provider of the Reserve
Fund Policy in the amount of such draw, plus any interest due thereon, from legally available
funds of the City, subject to appropriation by the City Council in its sole discretion. Any such
payment shall be made directly to the provider of the Reserve Fund Policy. It is the present
intention and expectation of the City Council to appropriate moneys to repay the provider of any
Reserve Fund Policy in the event of a draw thereunder, within the limits of available funds and
revenues, but this declaration of intent shall not be binding upon the City Council or any future
City Council in any future fiscal year. Any such payments shall constitute currently appropriated
expenditures of the City.
This Resolution shall not create a general obligation or other indebtedness or
multiple fiscal year direct or indirect debt or other financial obligation of the City within the
meaning of its Home Rule Charter or any constitutional debt limitation, including Article X,
Section 20 of the Colorado Constitution. Neither this Resolution nor the issuance of the Series
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2013 Bonds shall obligate or compel the City to make City Payments or to repay the provider of
any Reserve Fund Policy in the event of a draw thereunder beyond those appropriated in the City
Council's sole discretion.
Section 3. Direction to City Manager. To the extent that the Reserve Fund is
cash funded, within five (5) Business Days following a draw on the Reserve Fund to pay the debt
service requirements on the Series 2013 Bonds, to the extent any such draw is not replenished
from another source, the Trustee is required under Section 4.06 of the Indenture to provide
Written Notice of such draw to the City. The Written Notice shall state the amount required to
be paid by the City to restore the Reserve Fund to the Reserve Fund Requirement after
replenishment from all other sources available under the Indenture. The Written Notice shall
also include instructions for making the City Payment. Any such Written Notice is required to
be sent to the City Manager. Upon receipt of a Written Notice by the City Manager, the City
Council hereby authorizes and directs the City Manager to prepare and submit to the City
Council a request for an appropriation of the amount set forth in the Written Notice. Such
request shall be made in sufficient time to enable the City to make the City Payment within 90
days of receipt of the Written Notice as provided in Section I hereof.
In the event that a Reserve Fund Policy is deposited in the Reserve Fund and the
City receives written notice from the Trustee that a draw has been made on the Reserve Fund
Policy and such draw has not been repaid from another source, the City Council hereby directs
the City Manager, upon receipt of such notice, to forthwith prepare and submit to the City
Council a request for an appropriation in an amount sufficient to repay the provider of such
Reserve Fund Policy for such draw, plus any interest due thereon.
Section 4. Repayment of Amounts Appropriated. In the event that the City
Council appropriates funds to make a payment as contemplated by Section 1 hereof, any
amounts actually transferred by the City to the Trustee in accordance with the provisions of
Section 1 or transferred by the City to the provider of a Reserve Fund Policy in accordance with
the provisions of Section 1, shall be treated as an advance under the Cooperation Agreement and
shall be repaid by the Authority in accordance with the provisions of the Cooperation
Agreement, on a basis expressly subordinate and junior to that of the Series 2013 Bonds, any
Additional Bonds and any other obligations or indebtedness that is secured or payable in whole
or in part by the Pledged Revenues on a parity with the Series 2013 Bonds.
Section 5. Limitation to Series 2013 Bonds. Unless otherwise expressly
provided by a subsequent resolution of the City Council, the provisions of this Resolution shall
apply only to the replenishment of the Reserve Fund originally established in the Indenture that
secures the payment of the Series 2013 Bonds and shall not apply to any other reserve funds
established in connection with the issuance of any other obligations.
Section 6. Approval of Cooperation Agreement. The Cooperation
Agreement, in substantially the form attached hereto as Exhibit A, is in all respects approved,
authorized and confirmed. The Mayor is hereby authorized and directed to execute and deliver
the Cooperation Agreement, for and on behalf of the City, in substantially the form and with
substantially the same content as attached hereto as Exhibit A, provided that such document may
be completed, corrected or revised as deemed necessary by the parties thereto in order to carry
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out the purposes of this Resolution. The execution of the Cooperation Agreement by the Mayor
shall be conclusive evidence of the approval by the City Council of such document in accordance
with the terms hereof and thereof.
Section 7. Direction to Act. The City Clerk of the City (the "City Clerk") is
hereby authorized and directed to attest all signatures and acts of any official of the City in
connection with the matters authorized by this Resolution and to place the seal of the City on any
document authorized and approved by this Resolution. The Mayor, the Mayor Pro-Tem of the
City, the City Manager, the Financial Officer, the City Clerk and other appropriate officials or
employees of the City are hereby authorized and directed to execute and deliver for and on
behalf of the City any and all additional certificates, documents, instruments and other papers,
and to perform all other acts that they deem necessary or appropriate, in order to implement and
carry out the transactions and other matters authorized by this Resolution.
Section 8. Ratification. All actions (not inconsistent with the provisions of
this Resolution) heretofore taken by the City Council or the officers, employees or agents of the
City directed toward the issuance of the Series 2013 Bonds by the Authority and the execution
and delivery of the Cooperation Agreement are hereby ratified, approved and confirmed.
Section 9. Severability. If any section, subsection, paragraph, clause or
provision of this Resolution or the documents hereby authorized and approved shall for any
reason be held to be invalid or unenforceable, the invalidity or unenforceability of such section,
subsection, paragraph, clause or provision shall not affect any of the remaining provisions of this
Resolution or such documents, the intent being that the same are severable.
Section 10. Repealer. All prior resolutions, or parts thereof, inconsistent
herewith are hereby repealed to the extent of such inconsistency.
Section 11. Effectiveness. This Resolution shall take effect immediately upon
its passage.
Passed and adopted at a regular meeting of the Council of the City of Fort Collins this
18th day of June, A.D., 2013.
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OJZT C or P Tem
ATTEST: F Q•"•••''•<<i
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City Clerk V i� COLOR�O
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EXHIBIT A
COOPERATION AGREEMENT
BETWEEN THE CITY OF FORT COLLINS AND
THE FORT COLLINS URBAN RENEWAL AUTHORITY
THIS COOPERATION AGREEMENT (this "Agreement') dated as of _, 2013,
is made and entered into between the CITY OF FORT COLLINS, COLORADO (the `City")
and the FORT COLLINS URBAN RENEWAL AUTHORITY (the "Authority").
WHEREAS, the City is a Colorado home rule municipality with all the powers and
authority granted pursuant to Article XX of the Colorado Constitution and its City 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 I, Part 2, C.R.S., the City 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 City Council of the City (the "City Council') by Resolution No.
2004-152 approved and adopted on December 21, 2004 has authorized and approved the
"North College Urban Renewal Plan" as an urban renewal plan under the Act (the "Plan') for
the area described therein (the "Plan Area"), and the urban renewal projects described therein
(collectively, the "Project'); and
WHEREAS, the Project is being undertaken to facilitate the elimination and
prevention of blighted areas and to promote redevelopment, conservation and rehabilitation of
the Plan Area; and
WHEREAS, pursuant to section 31-25-112, C.R.S., the City 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 City, 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 Fort Collins Urban Renewal Authority, Tax
Increment Revenue Refunding Bonds'(North College Avenue Project), Series 2013 (the
"Series 2013 Bonds") for the purpose of refinancing certain obligations owing by the
Authority to the City that financed certain urban renewal projects in the Plan Area; and
WHEREAS, the City Council has adopted a 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 Fund
Requirement or to repay the provider of any reserve fund insurance policy in the event of a
draw thereunder (the "Replenishment Resolution") as defined in the Indenture of Trust (the
"Indenture"), between the Authority and U.S. Bank National Association, as trustee (the
"Trustee"); and
WHEREAS, capitalized terms used herein and not otherwise defined shall have the
meanings set forth in the Indenture.
NOW, THEREFORE, in consideration of the mutual promises set forth below, the
City and the Authority agree as follows:
1. LOAN. If the City Council appropriates funds pursuant to the
Replenishment Resolution, such funds shall be a loan from the City to the Authority to be
repaid as provided herein.
2. PAYMENT. (a) All amounts payable by the Authority to the City hereunder
shall constitute "Subordinate Debt" for purposes of the Indenture. The Authority shall cause
such amounts to be paid from and to the extent of Pledged Revenue (as defined in the
Indenture) available for the payment of Subordinate Debt in accordance with the terms of the
Indenture including, in particular, Section 4.04(c)thereof.
(b) The Authority agrees to pay the City interest on the principal balance of
any amounts designated as a loan hereunder at a rate to be determined based upon applicable
City policies in effect at the time of any such loan.
3. FURTHER COOPERATION. (a) The City shall continue to make
available such employees of the City 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.
(b) The City 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 City will take no action that would have the effect of reducing tax collections
that constitute Pledged Revenues.
(c) The City agrees to pay to the Authority any Pledged Property Tax
Revenues when, as and if received by the City, but which are due and owing to the Authority
pursuant to the Plan.
(d) In connection with the issuance of the Series 2013 Bonds, the Authority
agrees that so long as the Series 2013 Bonds are outstanding, the Authority shall submit to the
City Manager by February 15 of each year a report in substantially the form set forth as
Exhibit B to the Indenture. The City Manager agrees to submit such report to the City
Council at its first regular meeting in March in each year. Notwithstanding the foregoing,
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failure by the Authority to provide the report required by this Section3(d) of this Agreement
and Section 5.13 of the Indenture or failure by the City Manager to submit such report to the
City Council shall not constitute a default under this Agreement or under the Indenture.
4. SUBORDINATION. The Authority's obligation under this Agreement to
repay the City for the loan referred to in Section 1 hereof is subordinate to the Authority's
obligations for the repayment of the Series 2013 Bonds, any Additional Bonds and any other
obligations or indebtedness that is secured or payable in whole or in part by the Pledged
Revenues on a parity with the Series 2013 Bonds.
5. GENERAL PROVISIONS.
(a) Separate Entities. Nothing in this Agreement shall be interpreted in any
manner as constituting the City 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 City. 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.
(b) Third Parties. Neither the City 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 Trustee.
(c) 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 and incorporated as a written amendment to this
Agreement. Memoranda of understanding and correspondence shall not be construed as
amendments to the Agreement.
(d) 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.
(e) 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.
(t) 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.
(g) 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
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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.
IN WITNESS HEREOF, the parties have caused this Agreement to be executed by their
duly authorized officers on the date above.
CITY OF FORT COLLINS, COLORADO
Mayor
(SEAL)
ATTESTED:
City Clerk
FORT COLLINS URBAN RENEWAL
AUTHORITY
[SEAL]
By
Chairperson, Board of Commissioners
Attest:
By
Executive Director
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