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HomeMy WebLinkAboutResolution - 2022-R0507 - LEDA Issuance of Sales Tax Revenue BondsMINUTES AND CERTIFICATION PERTAINING TO PASSAGE OF A RESOLUTION STATE OF TEXAS § COUNTY OF LUBBOCK § CITY OF LUBBOCK § On the 6th day of December, 2022, the City Council of the City of Lubbock, Texas, convened in a regular meeting at the regular meeting place thereof, the meeting being open to the public and notice of said meeting, giving the date, place and subject thereof, having been posted as prescribed by Chapter 551, Texas Government Code, as amended; and the roll was called of the duly constituted officers and members of the City Council, which officers and members are as follows: Tray Payne, Mayor Shelia Patterson Harris, Mayor Pro Tem Christy Martinez -Garcia ) Mark W. Mcbrayer ) Steve Massengale ) Members of Dr. Jennifer Wilson ) the Council Latrelle Joy ) and all of said persons were present, except Steve Massengale (recusea) , thus constituting a quorum. Whereupon, among other business, a written Resolution bearing the following caption was introduced: A RESOLUTION APPROVING THE RESOLUTION OF LUBBOCK ECONOMIC DEVELOPMENT ALLIANCE, INC. AUTHORIZING THE ISSUANCE OF SALES TAX REVENUE BONDS; AND RESOLVING OTHER MATTERS RELATED THERETO The Resolution, a full, true and correct copy of which is attached hereto, was read and reviewed by the City Council. Thereupon, it was duly moved and seconded that the Resolution be passed and adopted. The Presiding Officer put the motion to a vote of the members of the City Council, and the Resolution was passed and adopted by the following vote: AYES: 6 NOES: 0 ABSTENTIONS: I 4145-8085-6130.3 MINUTES APPROVED AND CERTIFIED TO BE TRUE AND CORRECT, and to correctly reflect the duly constituted officers and members of the City Council of said City, and the attached and following copy of said Resolution is hereby certified to be a true and correct copy of an official copy thereof on file among the official records of the City, all on this the 6`h day of December, 2022. City Sec tary City of Lubbock, Texas [SEAL] 4145-8085-6130.3 Resolution No. 2022 — R 0507 December 6, 2022 Item No. 6.7 CONSIDER ADOPTION OF A RESOLUTION APPROVING THE RESOLUTION OF LUBBOCK ECONOMIC DEVELOPMENT ALLIANCE, INC. AUTHORIZING THE ISSUANCE OF SALES TAX REVENUE BONDS; AND RESOLVING OTHER MATTERS RELATED THERETO WHEREAS, the Lubbock Economic Development Alliance, Inc. (the "Corporation") has been incorporated and exists and operates as a duly constituted authority and instrumentality of the City of Lubbock, Texas (the "City"), created pursuant to Section 4A of Article 5190.6 of the Revised Civil Statutes of Texas, as amended, and now operates under Chapters 501-504, Texas Local Government Code (the "Act"); WHEREAS, there has been presented to this City Council a resolution (the "Bond Resolution") of the Board of Directors of the Corporation authorizing the issuance and sale of the Corporation's Sales Tax Revenue Bonds for the public purposes described therein, including funding the Projects (as defined within the Bond Resolution); WHEREAS, there has been presented to this City Council a Sales Tax Remittance Agreement, between the Corporation and the City, pursuant to which sales taxes collected by the City for the benefit of the Corporation pursuant to the Act shall be transferred and deposited into a fund for the use by the Corporation in the furtherance of its authorized powers and purposes; and WHEREAS, this City Council finds and determines that it is necessary and appropriate to approve the Bond Resolution and to approve the execution and delivery of said Sales Tax Remittance Agreement for the purposes herein provided. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK, TEXAS, THAT: Section 1. The recitals set forth in the preamble hereof are incorporated herein and shall have the same force and effect as if set forth in this Section. The Bond Resolution, attached hereto as Exhibit A, is hereby approved together with the issuance by the Corporation of Sales Tax Revenue Bonds in the aggregate principal amount not to exceed $32,500,000 (the "Bonds") for the public purposes described within the Bond Resolution. Section 2. The Sales Tax Remittance Agreement by and between the City and the Corporation, in substantially the form attached hereto as Exhibit B, is hereby approved and the Mayor is hereby authorized and directed to execute said agreement and the City Secretary is authorized to attest to same. For so long as the Bonds remain outstanding, the City covenants, agrees and warrants, to the extent permitted by law, to cause no reduction, abatement or exemption in the sales tax below the rate voted at the election held by and within the City on November 4, 2003, and to cause such sales tax to be collected and deposited in accordance with the Sales Tax Remittance Agreement. Section 3. The approvals herein given are in accordance with Section 501.204(a) of the Act and the Bylaws of the Corporation, and the Bonds shall never be construed as an indebtedness or 4159-3318-5090.1 pledge of the City, or the State of Texas (the "State"), within the meaning of any constitutional or statutory provision, and the owner of the Bonds shall never be paid in whole or in part out of any funds raised or to be raised by taxation (other than sales tax proceeds as authorized pursuant to the Act) or any other revenues of the Corporation, the City, or the State, except those revenues assigned and pledged pursuant to the Bond Resolution. Section 4. The Mayor, the City Secretary, the City Manager, and Chief Financial Officer of the City and all other appropriate officials of the City are hereby authorized, jointly and severally, to execute and deliver such endorsements, instruments, certificates, documents, or other papers necessary and advisable to carry out the intent and purposes of this Resolution and the Bond Resolution. Section 5. This Resolution shall be effective immediately upon adoption. [Signature page follows] 4159-3318-5090.1 ADOPTED THIS 6`h day of December, 2022 by the City Council of the City of Lubbock, Texas. ATTEST: Rebeccj Garza City Secretary APPROVED AS TO CONTENT: D. B u poste ch Chief Financial Officer APPROVED AS TO FORM: CK - Jerry V. {yl , Jr. Bond C el Signature Page City's Resolution 4159-3318-5090. l EXHIBIT A Bond Resolution [To be attached] 4159-3318-5090.1 EXHIBIT B Sales Tax Remittance Agreement [To be attached] 4159-3318-5090. l SALES TAX REMITTANCE AGREEMENT THIS SALES TAX REMITTANCE AGREEMENT (the "Agreement"), dated for convenience as of November 28, 2022, executed by and between the CITY OF LUBBOCK, TEXAS (the "City") and the LUBBOCK ECONOMIC DEVELOPMENT ALLIANCE, INC. (the "Corporation"). WITNESSETH: WHEREAS, the Corporation was created by the City pursuant to authority granted by Article 5190.6, Texas Revised Civil Statutes, as amended (the "Act"), specifically with the Corporation to possess the powers granted by Section 4A of the Act, and now operates under Chapters 501-504, Texas Local Government Code; and WHEREAS, on November 4, 2003, the citizens of the City voting at an election on said date approved the levy of a l '8th of one percent sales and use tax, pursuant to the Act (the "Economic Development Sales Tax"); and WHEREAS, under the Act and the provisions of the Texas Tax Code, disbursements of sales and use taxes are made to cities, such as the City, by the Comptroller of Public Accounts of Texas (the "Comptroller"); and WHEREAS, under authority of the Act, the Corporation was created to fund and finance eligible projects under the Act, particularly Section 4A thereof, and to secure said obligations with the Economic Development Sales Tax collected by the City under authority of Section 4A of the Act; and WHEREAS, the parties hereto find it necessary and advisable to enter into this Agreement to evidence the duties and responsibilities of the respective parties with respect to the collection, remittance and transfer of such sales and use tax revenues. NOW THEREFORE, in consideration of the covenants and agreements herein made, and subject to the conditions herein set forth, the City and the Corporation contract and agree as follows: Section 1. Creation of Fund. The City agrees to establish (to the extent not yet established) and maintain at an official depository bank of the City (the "Depository"), a fund to be entitled "Lubbock Economic Development Alliance, Inc. Sales and Use Tax Fund" (the "Sales Tax Fund"). The Sales Tax Fund shall be maintained as a separate fund at the Depository, and no other moneys of the City shall be commingled with the Sales Tax Fund. The City shall also maintain separate investment accounts into which all deposits shall be transferred when funds are received. Section 2. Deposits to Fund. The revenues received by the City from the Comptroller from the charge and levy of the Economic Development Sales Tax shall be deposited as received, or transmitted by the Comptroller directly, to the credit of the Sales Tax Fund, for the benefit of the Corporation, and shall be made available to the Corporation from time to time as hereinafter provided in this Agreement. Section 3. Security for Fund. The City hereby agrees that moneys on deposit in the Sales Tax Fund shall at all times be collateralized in the manner and with the collateral required by the City for its own funds. Section 4. Change in Depository. The City reserves the right from time to time to change its official depository bank. Section 5. Collection of Economic Development Sales Tax. (a) Until the Comptroller is able to determine and report the amount of the Economic Development Sales Tax levied for the benefit of the Corporation and any rebate, charge -back or adjustment thereof on a point of collection basis, the City will allocate a portion of the undivided sales and use tax receipts to the Corporation on the basis of the total sales and use taxes collected, multiplied by the pro rata portion of the Economic Development Sales Tax. In addition, the City will allocate the costs of any rebate or charge -back applicable to the undivided sales and use tax receipts between the City and the Corporation on a pro rata basis. (b) The Chair and Vice Chair of the Board of Directors of the Corporation, the President & CEO and the CFO./000 of the Corporation and the City Manager and Chief Financial Officer of the City (collectively, the "Authorized Representatives") shall take such actions as are required to cause the Economic Development Sales Tax to be delivered and transferred by the Texas Comptroller to the City for use by the Corporation by the fastest and most economically feasible means available. Section 6. Sales Tax Fund. The Corporation confirms the City's depository bank as the depository bank for the Sales Tax Fund all as provided herein. Section 7. Transfers from Sales Tax Fund to Pledged Revenue Fund. On or before the 1 st day of each month, the City shall direct the Depository to transfer funds on deposit in the Sales Tax Fund to the credit of the Pledged Revenue Fund of the Corporation created in connection with the issuance of its Sales Tax Revenue Bonds. The City shall cause the Depository to make such transfers promptly upon receipt of such direction to the extent that there are moneys on deposit in the Sales Tax Fund to effect such transfer. Section 8. Use of Moneys by Corporation. The Corporation agrees to use the moneys on deposit in the Corporation's Pledged Revenue Fund in a manner consistent with the terms and conditions of the Act and the election of November 4, 2003. Section 9. Covenant of the City. Recognizing that the Economic Development Sales Tax shall provide the security for the Corporation's bonds and other obligations, so long as such bonds and other obligations are outstanding, the City covenants and agrees that it will take and pursue all possible action permitted by the Act and other applicable State law to cause the Economic Development Sales Tax to be levied and collected continuously at a rate not less than 61995988_2 I `8th of one percent, and the City will not cause a reduction, abatement or exemption in the Economic Development Sales Tax or in the rate at which it is authorized to be collected. Section 10. Reserved. Section 11. Fees of Depository. In connection with the establishment and maintenance of the Sales Tax Fund, the Corporation agrees to pay the reasonable costs and expenses of the Depository associated with the administration of the Sales Tax Fund and such costs and expenses, if any, shall never constitute a cost, liability, or obligation of the City. Section 12. Severability. If any clause, provision, or section of this Agreement should be held illegal or invalid by any court of competent jurisdiction, the invalidity of such clause, provision, or section shall not affect any of the remaining clauses, provisions, or sections hereof and this Agreement shall be construed and enforced as if such illegal or invalid clause, provision, or section had not been contained herein. In case any agreement or obligation contained in this Agreement should be held to be in violation of law, then such agreement or obligation shall be deemed to be the agreement or obligation of the City and the Corporation, as the case may be, to the full extent permitted by law. Section 13. Modifications. This Agreement shall not be changed orally, and no executory agreement shall be effective to waive, change, modify or discharge this Agreement in whole or in part unless such executory agreement is in writing and is signed by the parties against whom enforcement of any waiver, change, modification or discharge is sought. Section 14. Entire Aueement. This Agreement contains the entire agreement between the parties pertaining to the subject matter hereof and fully supersedes all prior agreements and understandings between the parties pertaining to such subject matter. Section 15. Applicable Law. This Agreement shall in all respects be governed by, and construed in accordance with, the substantive federal laws of the United States and the laws of the State of Texas. [THE REMAINDER OF THIS PAGE INTENTIONA LL Y L EFT BANK] 61995988_2 IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be effective as of the date and year first above written. ATTEST: Secretary LUBBOCK ECONOMIC DEVELOPMENT ALLIANCE, INC. Chair, Board of Directors Signature Page Sales Tax Remittance Agreement ATTEST: Rebe ca Garza, City Secret CITY OF LUBBOCK, TEXAS Signature Page Sales Tax Remittance Agreement PAYNE, MAYOR GENERAL CERTIFICATE OF THE CITY On this December 6, 2022, we, the undersigned officials of the City of Lubbock, Texas (the "City"), do hereby make and execute this certificate for the benefit of the Attorney General of the State of Texas and all other persons interested in the Lubbock Economic Development Alliance, Inc.'s (the "Corporation") Sales Tax Revenue Bonds, Series 2023 and Sales Tax Revenue Bonds, Taxable Series 2023 (collectively, the "Obligations"), now in the process of issuance. (Capitalized terms used herein and not otherwise defined have the meaning assigned in the resolution authorizing the issuance of the Obligations (the "Resolution").) We certify as follows: 1. The City of Lubbock, Texas (the "City"), is a duly incorporated Home Rule City with a population greater than 50,000, and is operating and existing under the Constitution and laws of the State of Texas and the duly adopted Home Rule Charter of the City. The Home Rule Charter was last amended at an election held in the City on November 2, 2004. 2. The Corporation was created and authorized to act on behalf of the City, and the Articles of Incorporation of the Corporation were approved by the City Council on or about May 25, 2004; and no amendment or modification to the Articles of Incorporation or Bylaws have been approved by the City since the creation of the Corporation and the filing of the Articles of Incorporation with the Secretary of State of the State of Texas on June 1, 2004, save and except for the Amended and Restated Bylaws of the Corporation, approved by the Board of Directors of the Corporation (the "Board") on or about May 1, 2013, and an Amendment to the Corporation's Articles of Incorporation, approved by the Board on or about March 22, 2010, each of which were duly approved by the City Council of the City. 3. The City, by written resolution, has specifically approved the issuance of the Obligations solely and specifically for the purpose of satisfying the requirements of (i) Texas Local Government Code, Title 12, Subtitle Cl, as amended (the "Act"), and particularly Section 501.204(a) thereof, and (ii) the Bylaws of the Corporation, and such resolution has not been amended, annulled, rescinded or revoked and remains in full force and effect on the date hereof. 4. No litigation is pending against the City or the City Council or, to the best of our knowledge, threatened against the City or the City Council: (i) to restrain or enjoin the issuance, approval or delivery of the Obligations, (ii) contesting in any way the creation of the Corporation, or the title or authority of the governing body or directors of the Corporation or (iii) in any way contesting (a) the right and power of the City in connection with any action taken by it towards the issuance of the Obligations or (b) the authority or titles of the current officers of the City to their respective offices. 5. That on the date hereof, the Board consisted of the following members: Brett Cate Chair James Conwright Vice Chair Barry Orr Member and Past Chair Matt Bumstead Member Sonny Garza Member 4151-9145-5554.1 SuzAnn Kirby Member Dr. John Opperman Member Chris Carpenter Member Walter Cathey Member All members of the Board who are taking or have taken any action in connection with the authorization, sale and delivery of the Obligations are or were at the time of such action, duly qualified and acting members of the Board, and all members executing any document in connection therewith were duly authorized to execute such documents. No proceeding or authority for the issuance, execution or delivery of the Obligations has been repealed, revoked or rescinded. 6. That on the date hereof, the following persons hold the officer positions within the Corporation listed next to their respective names: John Osborne President 1 CEO Jana C. Johnston CFO / COO 1 Second Vice President i Treasurer i Privacy Officer Linda Davis Secretary Christine Allen First Vice President Katy Christy Assistant Treasurer 7. The following are duly qualified and acting, elected or appointed officials of the City of Lubbock, Texas: Tray Payne, Mayor Christy Martinez -Garcia ) Shelia Patterson Harris, Mayor Pro Tem Steve Massengale ) Members of Mark W. McBrayer ) the Council Dr. Jennifer Wilson ) Latrelle Joy ) W. Jarrett Atkinson, City Manager D. Blu Kostelich, Chief Financial Officer Rebecca Garza, City Secretary 8. The combined rate of all local sales and use taxes imposed by the City and other governmental entities having territory in the City does not exceed two percent (2%). 9. The Attorney General of Texas is hereby authorized and directed to date this certificate concurrently with the date of approval of the Obligations, and can rely on the absence of any litigation or contest pertaining to the Obligations or any other matters covered by this certificate unless otherwise notified. 10. That the Election (as defined in the Resolution) was held in accordance with the Voting Rights Act of 1965 and the Texas Election Code, as amended. 2 4151-9145-5554.1 4 EXECUTED AND DELIVERED this MANUAL SIGNATURE STATE OF TEXAS § COUNTY OF LUBBOCK § OFFICIAL TITLE Mayor, City of Lubbock, Texas Before me, the undersigned authority, on this day personally appeared Tray Payne, Mayor, of the City of Lubbock, Texas, known to me to be such person who signed the above and foregoing certificate in my presence and acknowledged to me that such person executed the above and foregoing certificate for the purposes therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS CARINA REYES Notary Public, State of Texas Notary ID# 13331645-5 My Commission Expires S07-2025 [NOTARY SEAL] LeZ4'<7-�) Notary Pu , In and for the State of Texas 4I51-9145-5554.1 Signature Page for General and No -Litigation Certificate 4 EXECUTED AND DELIVERED this MANUAL SIGNATURE c�� C STATE OF TEXAS COUNTY OF LUBBOCK OFFICIAL TITLE City Manager, City of Lubbock, Texas Before me, the undersigned authority, on this day personally appeared W. Jarrett Atkinson, City Manager, of the City of Lubbock, Texas, known to me to be such person who signed the above and foregoing certificate in my presence and acknowledged to me that such person executed the above and foregoing certificate for the purposes therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS���2�. CARINA REYES Notary Public, State of Texas Notary ID# 13331645-5 My Commission Expires 09-07-2025 [NOTARY SEAL] Notary Pub In and for the State of Texas Signature Page for General and No -Litigation Certificate 4I51-9145-5554.1 EXECUTED AND DELIVERED this MANUAL SIGNATURE STATE OF TEXAS COUNTY OF LUBBOCK OFFICIAL TITLE City Secretary, City of Lubbock, Texas Before me, the undersigned authority, on this day personally appeared Rebecca Garza, City Secretary, of the City of Lubbock, Texas, known to me to be such person who signed the above and foregoing certificate in my presence and acknowledged to me that such person executed the above and foregoing certificate for the purposes therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS CARINA REYES Notary Public, State of Texas Notary ID# 13331645-5 My Commission Expires 09-07-2025 [NOTARY SEAL] Notary Publi In and for the State of Texas 4151-9145-5554. I Signature Page for General Certificate of the City