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Home My WebLink About20130904.tiffRESOLUTION RE: APPROVE INTERGOVERNMENTAL AGREEMENT FOR TAX INCREMENT EXPENDITURE AND REVENUE SHARING AND AUTHORIZE CHAIR TO SIGN - TOWN OF ERIE URBAN RENEWAL AUTHORITY WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to Colorado statute and the Weld County Home Rule Charter, is vested with the authority of administering the affairs of Weld County, Colorado, and WHEREAS, the Board has been presented with an Intergovernmental Agreement for Tax Increment Expenditure and Revenue Sharing between the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, and the Town of Erie Urban Renewal Authority, commencing upon full execution, with further terms and conditions being as stated in said agreement, and WHEREAS, after review, the Board deems it advisable to approve said agreement, a copy of which is attached hereto and incorporated herein by reference. NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld County, Colorado, that the Agreement for Tax Increment Expenditure and Revenue Sharing between the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, and the Town of Erie Urban Renewal Authority be, and hereby is, approved. BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized to sign said agreement The above and foregoing Resolution was, on motion duly made and seconded, adopted by the following vote on the 10th day of April A.D., 2013. BOARD OF COUNTY COMMISSIONERS WELD COIN T)Y, COLORADO ATTEST:erV4A-0-c1/4.. Weld County Clerk to the Board BY: Deputy Cle the Boa APPROVED AS TO FO T - .County'; orney Date of signature:APR 1 8 2013 William F. Garcia -chair Dougla/RademacU'er, Pro-Tem Sean P. Conway Mike Freeman EXCUSED Barbara Kirkmeyer 2013-0904 BC0044 Nancy J. Parker Secretary to the Commission Town of Erie Urban Renewal Authority P.O. Box 750 Erie, CO 80516 nparkerOereico.00v (303) 926-2731 April 5, 2O13 Mr. Bruce T. Barker Weld County Attorney County of Weld P.O. Box 758 1150 O Street Greeley, CO 80632 Re: Town of Erie URA Intergovernmental Agreement For Tax Increment Revenue Sharing Dear Mr. Barker: Enclosed please find two signed originals of the above captioned document for the Weld County Commissioners signature. Please return one copy to my office at the earliest. Thank you. Town of Erie, Colorado Nancy J. Parker Secretary to the Commission Enclosures 2013-0904 INTERGOVERNMENTAL AGREEMENT FOR TAX INCREMENT REVENUE SHARING BY AND BETWEEN THE TOWN OF ERIE URBAN RENEWAL AUTHORITY AND THE TAXING ENTITY ih This Intergovernmental Agreement ("Agreement"), is entered into effective as of the day of apn I , 2013 (the "Effective Date"), by and between the TOWN OF ERIE URBAN RENEWAL AUTHORITY, a body corporate and politic of the State of Colorado ("TOEURA"), whose address is 645 Holbrook Street, Erie, Colorado 80516, and the COUNTY OF WELD, a political subdivision of the State of Colorado (the "Taxing Entity"), whose address is P.O. Box 750, 1150 O Street, Greeley, Colorado 80632 (TOEURA and the Taxing Entity may be referred to herein individually as a "Party" and may be collectively referred to herein as the "Parties"). RECITALS A. TOEURA is a public body corporate and politic authorized to transact business and exercise its powers as an urban renewal authority under and pursuant to the Colorado Urban Renewal Law, Part 1 of Article 25 of Title 31, C.R.S. (the "Act"). B. The Board of Trustees (the "Town Board") for the Town of Erie (the "Town") approved the creation of TOEURA on October 11, 2011 and, at that time, designated the Town Board as the TOEURA Board of Trustees (the "Trustees"). C. The Taxing Entity is a political subdivision of the State of Colorado and the Taxing Entity's boundaries overlap TOEURA's jurisdictional boundaries such that the Taxing Entity has the authority to impose a mill levy within TOEURA's jurisdictional boundaries. D. On February 12, 2013, the Trustees considered Resolution No. 13-29 approving the Urban Renewal Plan for the Airport Area Urban Renewal Area (the "Urban Renewal Plan"), which designates a sub -area within the Urban Renewal Plan Area within which tax increment shall be authorized ("Tax Increment Sub -Area") for the purposes authorized in the Act, including utilizing tax increment financing ("TIF Financing"), as contemplated by C.R.S. § 31-25-107(9)(a). The Tax Increment Sub -Area includes the parcels more particularly described in Exhibit A and as depicted as "Area A" and "Area B" in Exhibit B both attached hereto and incorporated herein (the "Tax Increment Parcels"). E. The Act provides that taxes levied after the effective date of the approval of an urban renewal plan upon taxable real property in portions of the area described in such urban renewal plan shall be divided each year for a period not to exceed twenty-five (25) years from the effective date of the urban renewal plan and that a portion of said property tax revenues shall be allocated to and paid into a special fund of the applicable urban renewal authority, as more particularly described in the Act. 016294\0002\1788212 3 1 a'O 13 21) 5/ F. Pursuant to the Urban Renewal Plan, taxes levied after the effective date of the Trustees' approval of the Urban Renewal Plan on real property located within the Tax Increment Sub -Area shall be divided each year for a period not to exceed twenty-five (25) years from the effective date of the Urban Renewal Plan and that a portion of said property tax revenues (the "TIF Revenue") shall be allocated to and paid into a special fund of TOEURA to pay the principal of, interest on, and any premiums due in connection with bonds of, loans or advances to, or indebtedness incurred by TOEURA for financing an urban renewal project or to make payments pursuant to an agreement executed pursuant to C.R.S. § 31-25-107(11). G. TOEURA and the Taxing Entity recognize that a division of taxes pursuant to C.R.S. § 31-25-107(9)(a) on real property within the boundaries of the Taxing Entity without an agreement concerning the sharing of TIF Revenue generated in the TIF Collection Areas may hinder (a) the effectuation of the Urban Renewal Plan and the planned urban renewal projects to be located within the Urban Renewal Plan Areas, and (b) the Taxing Entity's ability to provide its services and facilities to its constituents. H. Therefore, TOEURA and the Taxing Entity desire to enter into this Agreement for the transfer to the Taxing Entity of certain portions of the TIF Revenue. Each taxing entity shall be entitled to receive a portion of the TIF Revenue generated by the imposition of its mill levy (the Taxing Entity's "Mill Levy Increment") if and when received by TOEURA as a result of the imposition of the Urban Renewal Plan in the Urban Renewal Plan Areas and the collection of the TIF Revenue from the TIF Collection Areas as set forth in this Agreement. As of the date of this Agreement, the Taxing Entity's mill levy within the Tax Increment Sub -Area is 16.804. I. TOEURA and the Taxing Entity are authorized to enter into this Agreement pursuant to law, including without limitation C.R.S. § 31-25-112. NOW THEREFORE, in consideration of the foregoing recitals and the covenants, promises and agreements of each of the parties hereto, it is agreed by and among the parties hereto as follows: 1. Incorporation of Recitals. The foregoing recitals are incorporated into and made a part of this Agreement. 2. Initial Sharing Formula. Commencing on the effective date of the Urban Renewal Plan and continuing until the date that is three hundred and sixty-five (365) days after the date that the applicable Town agency issues a permanent certificate of occupancy to the fee simple property owner of Area B, or its designated tenant, for a retail store which shall contain a minimum of one hundred and thirty thousand (130,000) square feet of retail shopping space (the "Opening Date"), TOEURA agrees that it will share with the Taxing Entity fifty percent (50%) of the Taxing Entity's Mill Levy Increment collected within the Tax Increment Parcels, after deducting the Authority Administrative Fee (the foregoing calculation shall be referred to herein as the "Initial Sharing Formula"). Note that the Authority's Administrative Fee shall be deducted from the total TIF Revenue received, not from each Taxing Entity's Mill Levy Increment or the payment made pursuant to the Transfer Obligation. 016294\0002\1788212 3 2 3. Post Opening Date Sharing Formula. From and after the Opening Date, until the date upon which the total TIF Revenue collected and attributable to utilization of TIF Financing in the TIF Collection Areas is equal to Six Million and No/100 Dollars ($6,000,000.00) (the "Cap Date"), TOEURA agrees that it will share with the Taxing Entity a portion of the Taxing Entity's Mill Levy Increment of total TIF Revenue attributable to each of the TIF Collection Areas, in accordance with percentages set forth in the following chart: TIF Collection Area Percentage of TIF Revenue Shared with the Taxing Entity Area A 100% of the Taxing Entity's Mill Levy Increment Area B 50% of the Taxing Entity's Mill Levy Increment The percentages and calculations set forth in this Section 3 shall be referred to herein as the "Post Opening Date Sharing Formula." From and after the Cap Date, TOEURA shall remit all TIF Revenue collected in the TTF Collection Areas to the Taxing Entity in accordance with the Post Opening Date Sharing Formula, for so long as TOEURA shall receive such TTF Revenue pursuant to the Urban Renewal Plan. TOEURA's obligation to transfer to the Taxing Entity portions of the Taxing Entity's Mill Levy Increment in accordance with the Initial Sharing Formula and the Post Opening Date Sharing Formula shall be referred to herein as the "Transfer Obligation." 4. Eligible Public Improvements. TOEURA agrees to spend that portion of TIF Revenue attributable to the TIF Collection Areas that is not subject to the Transfer Obligation on capital improvements which will serve the Tax Increment Parcels, and which will further the goals of the Urban Renewal Plan and the Act ("Eligible Public Improvements"), including, but not limited to: (a) sanitary sewer improvements, (b) offsite improvements to Bonanza Road and Highway 7, (c) drainage improvements, and (d) repaving certain right of way located within the Sierra Vista Airpark, regardless of whether such right of way is publicly or privately owned. 5. Authority Administrative Fee. An administrative fee equal to one percent (1%) of the TIF Revenue as determined on an annual basis shall be retained by TOEURA (the "Authority Administrative Fee"). Notwithstanding anything to the contrary set forth in this Agreement or in the Urban Renewal Plan, TOEURA shall be entitled to retain the Authority Administrative Fee to pay the reasonable and customary administrative costs of the Authority incurred in connection with TOEURA's obligations under this Agreement. Note that the Authority's Administrative Fee shall be deducted annually from the total TIF Revenue received, not from each Taxing Entity's Mill Levy Increment or the payments made pursuant to the Transfer Obligation. 6. Agreement Confined to Specified Revenue. This Agreement applies only to TIF Revenue derived from imposition of property taxes in the TIF Collection Areas, if any, that is calculated, produced, allocated and transferred to TOEURA in accordance with C.R.S. § 31-25-I07(9)(a)(II) and the rules and regulations of the Property Tax Administrator of the State of Colorado, and does not include any other revenues of TOEURA. The Taxing Entity agrees 016294\0002\1788212 3 3 and acknowledges that the Taxing Entity is not entitled to any other revenue collected by TOEURA, including, without limitation, any sales tax increment revenue or private improvement fees. The Taxing Entity expressly disclaims any and all right, title or interest in and to any other revenue collected by TOEURA, including, without limitation, any sales tax increment revenue or private improvement fees. The Taxing Entity expressly waives and agrees not to object to: (a) the Town's or the Trustees' approval of the Urban Renewal Plan, including, without limitation, its approval of the use of TIF Financing and collection of TIF Revenue, or (b) TOEURA's imposition of any sales tax, private improvement fees or other fees in connection with the Urban Renewal Plan or Urban Renewal Plan Areas. This Agreement applies only to the Tax Increment Parcels. 7. Subordination. By written consent of the Taxing Entity, as evidenced by a resolution approved by the Board of Directors of the Taxing Entity, the Transfer Obligation may be made subordinate to any payment of the principal of, the interest on, and any premiums due in connection with bonds of, loans or advances to, or indebtedness incurred by TOEURA for financing or refinancing, in whole or in part, any urban renewal project specified in the Urban Renewal Plan. 8. Delays. Any delays in or failure of performance by any Party of its obligations under this Agreement shall be excused if such delays or failure are a result of acts of God; acts of public enemy; acts of the Federal or state government; acts of any other Party; acts of third parties; litigation concerning the validity of this Agreement or relating to transactions contemplated hereby; fire, floods, strikes, labor disputes, accidents, regulations or order of civil or military authorities; shortages of labor or materials; or other causes, similar or dissimilar, which are beyond the control of such Party. Notwithstanding the foregoing, where any of the above events shall occur which temporarily interrupt the ability of TOEURA to transfer to the Taxing Entity revenues as provided in this Agreement, as soon as the event causing such interruption shall no longer prevail, TOEURA shall transfer the total amount of the effected revenues that have been received by TOEURA that is then in the account, as determined according to the provisions of this Agreement. 9. Termination and Subsequent Legislation. This Agreement may be terminated at any time upon the mutual written agreement of TOEURA and the Taxing Entity. In addition, in the event of termination of the Urban Renewal Plan, including, without limitation, the provisions of such plan authorizing TIF Financing, TOEURA may terminate this Agreement by delivering written notice to the Taxing Entity. TOEURA may also terminate this Agreement by delivering written notice to the Taxing Entity if the Taxing Entity no longer provides any services within the Town. The Parties further agree that in the event legislation is adopted after the Effective Date of this Agreement that invalidates or materially or adversely affects any provisions hereof, the Parties will in good faith negotiate for an amendment to this Agreement that most fully implements the original intent, purpose and provisions of this Agreement. 10. Entire Agreement. This instrument embodies the entire agreement of the parties with respect to the subject matter hereof. There are no promises, terms, conditions, or obligations other than those contained herein and this Agreement shall supersede all previous communications, representations, or agreements, either verbal or written, between the Parties 016294A0002V1788212 3 4 hereto. No modification to this Agreement shall be valid unless agreed to in writing by the Parties hereto. 11. Binding Effect. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their successors in interest. 12. No Third -Party Enforcement. It is expressly understood and agreed that the enforcement of the terms and conditions of this Agreement, and all rights of action relating to such enforcement, shall be strictly reserved to the undersigned Parties and nothing in this Agreement shall give or allow any claim or right of action whatsoever by any other person not included in this Agreement. It is the express intention of the undersigned Parties that any entity other than the undersigned Parties receiving services or benefits under this Agreement shall be an incidental beneficiary only. 13. No Waiver of Immunities. Nothing contained herein shall be construed as a waiver, in whole or in part, by any Party hereto of the rights, protections, and privileges afforded under the Colorado Governmental Immunity Act, Section 24-10-101, et seq., C.R.S. or under any other law, nor shall any portion of this Agreement be deemed to have created a duty of care which did not previously exist with respect to any person not a Party to this Agreement. 14. Severability. If any provision of this Agreement is found to be invalid, illegal or unenforceable, the validity and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Further, in the event of any such holding of invalidity, illegality or unenforceability, the Parties will in good faith negotiate for an amendment to this Agreement that achieves to the greatest degree possible the intent of the affected provision of this Agreement. 15. No Assignment. No Party may assign any of its rights or obligations under this Agreement without the express prior written consent of the other Party. Any attempted assignment in violation of this provision shall be null and void and of no force and effect. 16. Paragraph Captions. The captions of the paragraphs are set forth only for the convenience and reference of the Parties and are not intended in any way to define, limit, or describe the scope or intent of this Agreement. 17. Execution in Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed an original and all of which shall constitute but one and the same instrument. 18. Governing Law. This Agreement and the provisions hereof shall be governed by and construed in accordance with the laws of the State of Colorado. 19. No Presumption. The Parties to this Agreement and their attorneys have had a full opportunity to review and participate in the drafting of the final form of this Agreement. Accordingly, this Agreement shall be construed without regard to any presumption or other rule of construction against the Party causing the Agreement to be drafted. 016294\0002\1788212 3 5 20. Notices. Any notice required by this Agreement shall be in writing. All notices, demands, requests and other communications required or permitted hereunder shall be in writing, and shall be (a) personally delivered with a written receipt of delivery; (b) sent by a nationally -recognized overnight delivery service requiring a written acknowledgement of receipt or providing a certification of delivery or attempted delivery; (c) sent by certified or registered mail, return receipt requested; or (d) sent by confirmed facsimile transmission or electronic delivery with an original copy thereof transmitted to the recipient by one of the means described in subsections (a) through (c) no later than 5 business days thereafter. All notices shall be deemed effective when actually delivered as documented in a delivery receipt; provided, however, that if the notice was sent by overnight courier or mail as aforesaid and is affirmatively refused or cannot be delivered during customary business hours by reason of the absence of a signatory to acknowledge receipt, or by reason of a change of address with respect to which the addressor did not have either knowledge or written notice delivered in accordance with this paragraph, then the first attempted delivery shall be deemed to constitute delivery. Each Party shall be entitled to change its address for notices from time to time by delivering to the other Party notice thereof in the manner herein provided for the delivery of notices. All notices shall be sent to the addressee at its address set forth following its name below: If to TOEURA: with a copy to: If to the Taxing Entity: Town of Erie Urban Renewal Authority Attention: Executive Director 645 Holbrook Street Erie, Colorado 80516 Telephone: (303) 926-2710 Facsimile: (303) 926-2706 Email: ajkrieger@erieco.gov Brownstein Hyatt Farber Schreck LLP Attention: Carolynne White, Esq. 410 17th Street, Suite 2200 Denver, Colorado 80202 Telephone: 303.223.1100 Facsimile: 303.223.1111 Email: cwhite@bhfs.com County of Weld Attn: Bruce T. Barker, Weld County Attorney P.O. Box 758, 1150 O Street Greeley, Colorado 80632 Telephone: 970.356.4000, Ext. 4390 Facsimile: 970.352.0242 Email: bbarker@co.weld.co.us 21. Days. If the day for any performance or event provided for herein is a Saturday, a Sunday, a day on which national banks are not open for the regular transactions of business, or a legal holiday pursuant to Section 24-11-101(1), C.R.S., such day shall be extended until the next day on which such banks and state offices are open for the transaction of business. 016294\0002\1788212.3 6 22. Parties Not Partners. Notwithstanding any language in this Agreement or any other agreement, representation, or warranty to the contrary, the parties shall not be deemed to be partners or joint venturers, and no Party shall be responsible for any debt or liability of any other Party. 23. Waiver. Pursuant to C.R.S. § 31-25-107(11), the Taxing Entity agrees to waive all provisions of Part 1 of the Act that provide for notice to the Taxing Entity, require any filing with or by the Taxing Entity, require or permit consent from the Taxing Entity, or provide for any enforcement right to the Taxing Entity. [Remainder of this page is left intentionally blank] 016294\0002\1788212.3 7 IN WITNESS WHEREOF, TOEURA and the Taxing Entity have caused their duly authorized officials to execute this Agreement effective as of the Effective Date. TAXING ENTITY: ATTEST:a�� COUNTY OF WELD, Clerk to the Board By: Deputy Clerk 016294\0002\1788212.3 a political subdivision of the State of Colorado By: (� �� William F. arcia, Chairman Board of County Commissioners of the County of Weld APR 1 0 2013 8 9O/3 -7909' TOEURA: ATTEST: By: Nancy J. Parker, Recording Secretary 016294\0002\1788212.3 TOWN OF ERIE URBAN RENEWAL AUTHORITY, a body corporate and politic of the State of Colorado 9 Wilson, Chair Exhibit A Legal Description of the Tax Increment Parcels AIRPORT AREA URBAN RENEWAL PLAN TIF A & B (ERIE, COLORADO) PROPERTY DESCRIPTION A PARCEL OF LAND LOCATED IN THE SOUTHEAST ONE -QUARTER (SE1/4) OF SECTION 31, TOWNSHIP 1 NORTH, RANGE 68 WEST, OF THE 6TH PRINCIPAL MERIDIAN, TOWN OF ERIE, COUNTY OF WELD, STATE OF COLORADO, DESCRIBED AS FOLLOWS: NOTE: ALL PARCEL NUMBERS CITED IN THIS DESCRIPTION ARE WELD COUNTY ASSESSOR PARCEL NUMBERS (FEBRUARY 2013), HEREINAFTER REFERRED TO AS PN. THAT PARCEL OF LAND KNOWN AS PN 146731000031. 016294\0002\1788212.3 A-1 Hello