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HomeMy WebLinkAbout2019-107-11/19/2019-CONCERNING THE FORT COLLINS URBAN RENEWAL AUTHORITY AND ITS TAX INCREMENT REVENUE REFUNDING BONDS (PCOOPERATION AGREEMENT BETWEEN THE CITY OF FORT COLLINS AND THE FORT COLLINS URBAN RENEWAL AUTHORITY THIS COOPERATION AGREEMENT (this “Agreement”) dated as of ___________, 2019, 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 1, 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. 2011-081 approved and adopted on September 6, 2011, has authorized and approved the “Midtown Urban Renewal Plan” as an urban renewal plan under the Act (the “Original Plan”) for the area described therein (the “Original Plan Area”), and the urban renewal projects described therein; and WHEREAS, on February 28, 2013, the City Council adopted Resolution 2013-014 which, among other things, ratified and reaffirmed the Original Plan, including the adoption of the Prospect South tax increment financing district; and WHEREAS, on May 7, 2013, the City Council adopted Resolution 2013-043 approving modifications to the Original Plan (the “First Amended Plan”); and WHEREAS, on December 1, 2015, the City Council adopted Resolution 2015-107 approving modifications to the First Amended Plan (the “Second Amended Plan”); and WHEREAS, one of the modifications included in the Second Amended Plan is the removal of approximately 167.8 acres of land from the Original Plan Area thereby resulting in a new plan area (the “New Plan Area”); and WHEREAS, Resolution 2015-107 provides that the Second Amended Plan is intended to supersede and replace in all respects the Original Plan and the First Amended Plan except that the previous Council findings and determinations in Resolutions 2011-081, 2013-014 and 2013-043 shall remain in full force and effect as applied to the New Plan Area except to the extent expressly superseded or updated in Resolution 2015-107, but the tax increment EXHIBIT A 2 financing provisions in the Second Amended Plan shall continue to be in effect no later than twenty-five years after the adoption of the Original Plan; and WHEREAS, the Second Amended Plan authorizes and describes an urban renewal project consisting of various undertakings and activities to be undertaken by the Authority to facilitate the elimination and prevention of blighted within the New Plan Area and to promote the redevelopment, conservation and rehabilitation of the New Plan Area (collectively, the “Project”); and WHEREAS, pursuant to C.R.S. Section 31-25-112, 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 Second Amended Plan; and WHEREAS, the City and the Authority have previously entered into that certain “Intergovernmental Agreement Between the City of Fort Collins, Colorado and the Fort Collins Urban Renewal Authority” dated August 16, 2006, as amended by the parties in that certain “First Addendum to the Intergovernmental Agreement Between the City of Fort Collins, Colorado and the Fort Collins Urban Renewal Authority Regarding Operating Staff and Resources” approved by the City Council and the Authority’s Board by resolution on July 5, 2011 (jointly, the “IGA”); and WHEREAS, the IGA sets forth the various services the City will provide to the Authority and addresses in Section 10 of the IGA that the Authority may provide its own public liability insurance and other insurance or the parties may agree that the Authority will be covered under the City’s insurance coverages and the Authority will reimburse the City for the additional cost of that coverage; and WHEREAS, the City and the Authority wish to amend in this Agreement Section 10 of the IGA to clarify and expressly provide that until April 1, 2020, the Authority and its officers and employees are included under and covered by the City’s purchased excess- insurance coverages and coverage under the City’s self-insurance program and self-insurance fund as established, provided and described in Division 6 of Article VII in Chapter 2 of the City Code and in Division 3 of Article III in Chapter 8 of the City Code; and WHEREAS, the Authority is issuing its Fort Collins Urban Renewal Authority, Tax Increment Revenue Refunding Bonds (Prospect South), Series 2019 (the “Series 2019 Bonds”) for the purpose of refinancing certain obligations owing by the Authority to the City that financed certain urban renewal activities in the New 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 3 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 Revenues (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 Second Amended 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 Second Amended Plan. (d) In connection with the issuance of the Series 2019 Bonds, the Authority agrees that so long as the Series 2019 Bonds are outstanding, the Authority shall submit to the City 4 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, 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 2019 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 2019 Bonds. 5. AMENDMENT OF IGA SECTION 10. Section 10 of the IGA is hereby amended to read in full as follows: 10. Insurance. The URA and the City agree that the URA and its officers and employees shall be included in and covered under the excess-insurance coverage the City purchases each year for itself and its officers and employees. The URA and its officers and employees shall also be included in and covered under the City’s self-insurance program and self-insurance fund as established, provided and described in Division 6 of Article VII in Chapter 2 of the City Code and in Division 3 of Article III in Chapter 8 of the City Code. The URA shall annually reimburse the City for any additional costs the City incurs to so insure the URA and its officers and employees. The City and the URA also agree that the City’s obligation under this section to provide insurance coverages to the URA and its officers and employees shall terminate on April 1, 2020. Before such termination date, the parties agree to discuss and decide whether to continue these coverages by the City from and after April 1, 2020, or whether the URA should separately obtain its own insurance coverages. 6. 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 5 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. (f) 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 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 Wade Troxell, Mayor (SEAL) ATTESTED: City Clerk 6 FORT COLLINS URBAN RENEWAL AUTHORITY [SEAL] By Chairperson, Board of Commissioners Attest: By Executive Director