ࡱ> egd#` x;bjbj\.\. -P>D>DR3%jjjjjjj~---8-$-,~FA.."<.<.<.<.f.4.@@@@@@@$LBhD@@j 5<.<. 5 5@jj<.<.A777 5j<.j<.@7 5@77Y>Djj?<.. 8x+-5?&@4A0FA?&DI6DL?Dj?.r071`2...@@77^...FA 5 5 5 5~~~ " ~~~"~~~jjjjjj COOPERATION AGREEMENT THIS COOPERATION AGREEMENT is made as of the ____ day of ____________, 2007, by and between the Hampton Redevelopment and Housing Authority, a political subdivision of the Commonwealth of Virginia (the "Authority"), and the City of Hampton, a municipal corporation of the Commonwealth of Virginia (the "City"). WITNESSETH: WHEREAS, The Council of the City of Hampton (the Council) has set as a priority the revitalization of downtown to attract investment, new business and new vitality to downtown and has adopted the Downtown Master Plan, as amended, which inter alia calls for the development of both retail and residential units for sale and for rent in the Hampton Downtown; and WHEREAS, in settlement of litigation arising from the default of Olde Hampton Hotel Associates (OHHA) on debts owing to the Authority in connection with the financing of the former Radisson Hotel project (the Hotel) in downtown Hampton, the Authoritys wholly owned subsidiary, Hampton Economic Development Corporation (HEDC), will become the owner of the hotel by acceptance of a deed to the hotel property and will acquire the hotel assets in accordance with the terms of a certain agreement among the Authority, the City, OHHA, HHA Ltd., RLLLP, J. Edward Watson, III and Jack H. Shiver; and WHEREAS, The Authority proposes, through this acquisition, to assist Council in the accomplishment of its downtown revitalization goals through either the attraction of a first class hotel operation and related facilities at the site of the former Radisson Hotel or the development of an appropriate residential or mixed use project located at that site; and WHEREAS, the Authority, through HEDC, proposes to continue, uninterrupted, the hotel operation pending sale or other disposition of the hotel pursuant to HEDCs marketing efforts and solicitation of requests for expressions of interest and qualifications. NOW, THEREFORE, in consideration of the public benefits to accrue to the City and its citizens from the carrying out of the Authoritys plans for the Hotel property, described in the recitals above, and the mutual covenants hereinafter set forth, the City and the Authority agree as follows: City to Provide Funds to the Authority. Subject to appropriation by City Council and the other limitations contained in Section 7 herein, the City agrees to take all actions reasonably necessary to raise and to loan or grant to the Authority sufficient funds to carry out the Authoritys plans to attract either a first class hotel operation and related facilities at the site of the former Radisson Hotel or the development of an appropriate residential or mixed use project located at that site and the Authoritys plans to operate the hotel as a hotel in the interim. The City and the Authority acknowledge that each has been informed of the present fact and continued likelihood that the Hotel will operate at a significant loss during this interim period and, accordingly, the City and the Authority agree to cooperate on the terms set forth herein to realize the Authoritys plans for disposition of the Hotel property as quickly as reasonable terms can be reached with an offeror. Obligations of the Authority. The Authority shall faithfully perform, cause to be performed or otherwise pursue all actions necessary to realize the plans described herein for the former Radisson Hotel site, including the continued operation by HEDC of the Hotel as a hotel, and shall keep the City periodically informed as to the progress of its plans and the status of Hotel business operations. Provision of Personnel and Material. The Authority and the City collectively and cooperatively shall provide or cause to be provided all personnel, management services, consulting services, marketing services, equipment and materials reasonably necessary to continue the interim operation of the Hotel and to faithfully pursue plans for attraction of a first class hotel or residential or mixed use development at the hotel site, including, but not limited to, providing engineering surveys, property line maps, structural and building inspections, architectural, engineering and landscape design, plans and construction drawing review, contract review and administration, inspections, and all economic development, planning, administration and accounting functions and related activities as may be necessary to carry out their respective roles in a timely manner. To the extent that the aforesaid obligations cause the Authority to exceed amounts available to it, the City shall advance such amounts to the Authority or reimburse the Authority for any and all such excesses. 5. Reports to the City. The Authority shall provide to the City, in form and substance and on a schedule acceptable to the City, reports on expenditures and progress with respect to undertaking and carrying out the responsibilities of the Authority hereunder, and under related agreements, and shall provide to the City copies of all contracts, studies, plans, proposals and agreements in its possession related to disposition or development of the Hotel property. 6. Limited Liability of the Authority. It is the intent of the parties that this Agreement will not impose upon the Authority any responsibility other than that required to continue the operation of the Hotel until disposition in accordance with the plans of the Authority described herein. Accordingly, the Authority does not assume by these presents any responsibility or liability whatsoever except as specifically stated herein. Should any liability accrue to the Authority by reason of this Agreement which is not specifically addressed in this Agreement, the Authority will not be required to expend its funds derived from sources other than its allocable portion of any funds received from the City to discharge such liability. 7. Annual Appropriations and Payments. (a) The City hereby pledges to the Authority, subject to appropriation by the City Council and the other limitations set forth in this Section, to deliver to the Authority sufficient funds as and when required for the Authority to make timely payment of all amounts required to be paid by the Authority to continue the Hotel operation and to market the hotel or attract other development to the Hotel site. The City's pledge and all payments to be made pursuant thereto shall be subject to and are expressly conditioned upon funds being appropriated for such purpose by the City Council. (b) On or before February 1st of each year, until disposition of the Hotel property by the Authority through HEDC in accordance with the plans described herein, the City Manager shall determine the amount which the City estimates will be needed to pay all amounts required to be paid by the Authority in the fiscal year commencing on the following July 1 (the "Requested Amount") in good faith pursuit of its plans to dispose of the Hotel property in. The City Manager shall include the Requested Amount for each fiscal year in the City's annual budget to be submitted to City Council for approval and will use his best efforts to have the Requested Amount approved and appropriated by City Council at least thirty (30) days before the beginning of that fiscal year. In the event that City Council does not approve and appropriate the full Requested Amount, the City Manager will seek from time to time such appropriations from City Council as may be necessary for complete and timely payment of all amounts required to be paid in pursuit of the Authoritys plans for the Hotel property. (c) Money appropriated by City Council for payment thereof shall be paid to the Authority at least fifteen (15) days before the same are due, to be applied solely to the payment of amounts required to be paid by the Authority for continued operation of the Hotel and related debts and expenses of the Authority as owner of the Hotel, through HEDC for which such appropriation was made, and shall be used by the Authority for no other purpose. Any funds not required for payment of amounts required for the purposes described in this paragraph shall be promptly returned by the Authority to the City unless the City Council directs otherwise. (d) In the event that the amount actually needed to pay the full amount of the required payments and expenses exceeds the Requested Amount, the City Manager shall submit a supplemental request to the City Council for the amount needed to satisfy such a deficit. (e) All amounts appropriated by the City hereunder shall not be subject to diminishment, set-off or abatement in any event. (f) The City Council hereby undertakes a non-binding obligation to appropriate to the Authority such amounts as may be requested from time to time pursuant to this Section and elsewhere in this Agreement to the fullest degree and in such manner as is consistent with the Constitution and laws of the Commonwealth of Virginia. The City Council, while recognizing that it is not empowered to make any binding commitment to make such appropriations in future fiscal years, hereby states its intent to make such appropriations in future fiscal years, and hereby recommends that future City Councils do likewise. (g) Nothing in this Agreement is or shall be deemed to be a lending of the credit of the City to the Authority or to any other person, and nothing in this Agreement is or shall be deemed to be a pledge of the faith and credit or the taxing power of the City. 8. Severability of Invalid Provisions. If any clause, provision or section of this Agreement is held to be illegal or invalid by any court, the invalidity of the clause, provision or section will not affect any of the remaining clauses, provisions or sections, and this Agreement will be construed and enforced as if the illegal or invalid clause, provision or section had not been contained in it. Notwithstanding the foregoing, if the Citys moral obligation to provide funding in support the Authoritys plans for the Hotel property is held invalid by a court of competent jurisdiction, this Agreement will terminate and the Authority may take whatever steps it deems necessary or appropriate to minimize its actual or perceived liability in connection with its plans for the Hotel property. 9. Notices. All notices, certificates, requests or other communications under this Agreement must be in writing and will be deemed given when mailed by first class, registered or certified mail, return receipt requested, to the addresses set forth below. If to the Authority: Hampton Redevelopment and Housing Authority 22 Lincoln Street Hampton, Virginia 23669 Attention: Executive Director If to the City: City of Hampton, Virginia 22 Lincoln Street Hampton, Virginia 23669 Attention: City Manager The parties may by notice given under this section designate such other addresses as they deem appropriate for the receipt of notices under this Agreement. If by reason of the suspension of or irregularities in regular mail service it is impractical to mail notice of any event when notice is required to be given, then any manner of giving notices which is satisfactory to the intended recipient will be deemed sufficient. 10. General Provisions. This Agreement will be governed by the laws of the Commonwealth of Virginia, and may be amended only by written agreement of the parties. In carrying out this Agreement, the City and the Authority agree not to discriminate against any employee or applicant because of race, color, religion, sex, national origin, age or disability. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered, will be an original, and the counterparts take together will constitute one and the same instrument. 11. Waiver. Any waiver by any party of its rights under this Agreement must be in writing and shall not be deemed a waiver with respect to any matte not specifically covered therein. 12. Successors and Assigns; Third Party Rights. This Agreement shall be binding upon and shall inure to the benefit of the successors and permitted assigns of the parties hereto; provided, however, that in no event may this Agreement or any of the rights, benefits, duties or obligations of the parties hereto be assigned, transferred or otherwise disposed of without the prior written consent of the other, which consent neither party shall be obligated to give. The rights and remedies available to the Authority under this Agreement shall inure to the benefit of HEDC; provided, however, such rights granted to HEDC shall terminate on the date that title to the Hotel property passes from HEDC to any party other than the Authority. THE HAMPTON REDEVELOPMENT AND HOUSING AUTHORITY By: ___________________________________ Executive Director CITY OF HAMPTON By: ___________________________________ City Manager Approved as to form: ___________________________ Cynthia E. 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