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HomeMy WebLinkAboutResolution - 1903 - Assignment- LIDC- Private Activity Bond Cap, Solid Waste Recovery Plant Project - 12/20/1984RESOLUTION #1903 December 20, 1984 Agenda Item #25 RESOLUTION CONCERNING ISSUANCE OF BONDS TO FINANCE A PROJECT FOR ENVIRONMENTAL PROTECTION RESOURCES, INC. WHEREAS, the City of Lubbock (the "Unit"), a municipal corporation of the State of Texas, has, pursuant to the Development Corporation Act of 1979, Article 5190.6, Vernon's Texas Civil Statutes, as amended (the "Act"), approved and created the Lubbock Industrial Development Corporation, a nonprofit industrial development corporation (the "Issuer"); WHEREAS, the Issuer, on behalf of the Unit is empowered to finance the cost of projects to promote and develop industrial and manufacturing enterprises to promote and encourage employment, the public health, and the public welfare by the issuance of obligations of the Issuer, which projects will be inside the Unit's boundaries. WHEREAS, Environmental Protection Resources, Inc. (the "User") has filed an application which is attached hereto as Exhibit "A" and made a part hereof for all purposes (the described in the Application (the "Project") within the boundaries of the Unit and further that the Issuer adopt this Resolution with respect to the acquisition, construction, and installation of the Project; WHEREAS, the User has advised the Issuer that a contributing factor which would further induce the Issuer to proceed with providing for the acquisition and construction of the Project would be a commitment and agreement by the Issuer to issue industrial development revenue bonds pursuant to the Act (the "Bonds") to finance and pay for the Project; WHEREAS, in view of rising construction costs and the necessity of compliance with administrative regulations, it is considered essential that construction of the Project be completed at the earliest practicable date but, at the same time, the User wishes to begin construction of the Project after satisfactory assurances from the Issuer that the proceeds of the sale of the Bonds, or other obligations, of the Issuer in an amount necessary to pay the costs of the Project will be available to finance the Project; WHEREAS, the Issuer finds, intends, and declares that this Resolution shall constitute its official binding commitment, subject to the terms hereof, to issue Bonds, or other obligations, pursuant to the Act in an amount prescribed by the User now contemplated to be $45,000,000 and the expend the proceeds thereof to acquire, construct, and install the Project and to pay all expenses and costs of the Issuer in connection with the issuance of the Bonds; and WHEREAS, the Issuer finds, considers, and declares that the issuance and sale of the Bonds in the amount and for the purpose hereinabove set forth will be appropriate and consistent with the objectives of the Act, and that the adoption of this Resolution is and constitutes and is intended as (i) an inducement to the Issuer to proceed with providing for the acquisition and construction of the Project and (ii) the taking of affirmative official action by the Issuer, acting by and through its Board of Directors, towards the issuance of the Bonds within the meaning of federal income tax law with respect to interest on the Bonds to finance certain facilities to be financed by the issuance of exempt small issue bonds or exempt facilities, including Treas. Reg. [1.103-8 (a) (5); THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE LUBBOCK INDUSTRIAL DEVELOPMENT CORPORATION THAT: Section 1. Subject to the terms hereof, the Issuer agrees that it will: (a) Issue the Bonds, and if the User and the Issuer agree, other evidences of indebtedness providing temporary financing of the Project which will be issued after the date hereof and be refunded by the Bonds pursuant to the Act, or any other Texas legislation heretofore or hereafter enacted which may provide a suitable method of financing in addition to or in substitution for the Act. (b) Cooperate with the User with respect to the issuance of the Bonds, and, if arrangements therefor satisfactory to the User and the Issuer can be made, the Issuer will take such action and authorize the execution of such documents and will take such further action as may be necessary or advisable for the authorization, execution, and delivery of any contracts or agreements deemed necessary or desirable by the User or the Issuer in connection with the issuance of the Bonds (collectively, the "Contract"), providing among other things for payment of the principal of, interest on, redemption premiums, paying agents' charges, and Trustee's fees, if any, on the Bonds; payment of fees and charges of the Issuer and the Unit; acquisition, construction, and improvement of the Project; payment of fines and penalties; and use, operation, and maintenance of the Project (and the execution of any appropriate and necessary guaranty agreements), all as shall be authorized, required, or permitted by law and as shall be mutually satisfactory to the Issuer, the Unit, and the User. (c) If the proceeds from the sale of the Bonds are insufficient, take such actions and execute such documents as may be necessary to permit the issuance from time to time in the future of additional bonds on terms which shall be set forth therein, whether on a parity with other series of bonds or otherwise, for the purpose of paying the costs of completing the acquisition, construction, and installation of the Project, as requested by the User and within then applicable limitations. (d) Take or cause to be taken such other actions as may be required to implement the aforesaid undertakings or as it may deem appropriate in pursuance thereof. The Bonds shall specifically provide that neither the State of Texas, the Unit, nor any political issuer, subdivision, or agency of the State of Texas shall be obligated to pay the same or the interest thereon and that neither the faith and credit nor the taxing power of the State of Texas, the Unit, or any political issuer, subdivision, or agency thereof is pledged to the payment of the principal of, premium, if any, or interest on the Bonds. Section 2. It is understood by the Issuer and the Unit, and the User has represented to the Issuer, that in consideration of this Resolution and by filing the Application, and subject to the terms and conditions hereof, the User has agreed that: (a) Prior to or contemporaneously with the sale of the Bonds in one or more series or issues from time to time as the Issuer and the User shall hereafter agree to in writing, the User will enter into the Contracts with the Issuer under the terms of which the User will obligate itself to pay to the Issuer (or to a Trustee, as the case may be) sums sufficient in the aggregate to pay the principal of, interest on, redemption premiums, paying agents' fees, and Trustee's fees, if any, on the Bonds, as and when the same become due and payable, with such contract to contain the provisions described in Section 1 hereof and such other provisions as may be required or permitted by law and to be mutually acceptable to the Issuer and the User. (b) The User will (1) pay all Project costs which are not or cannot be paid or reimbursed from the proceeds of the Bonds and (2) at all times, indemnify and hold harmless the Issuer and the Unit against all losses, costs, damages, expenses, and liabilities of whatsoever nature (including but not limited to attorneys' fees, litigation and court costs, amounts paid in settlement, and amounts paid to discharge judgments) directly or indirectly resulting from, arising out of or related to the issuance, offering, sale, or delivery of the Bonds, or the design, construction, installation, operation, use, occupancy, maintenance, or ownership of the Project. Section 3. It is understood by the Issuer that all commitments of the Issuer and the User with respect to the Project and the Bonds are subject to the condition that the Bonds shall have been issued no later than December 31, 1986, or such other date as shall be mutually satisfactory to the Issuer and the User. Section 4. It is recognized and agreed by the Issuer that the User may exercise its rights and perform its obligations with respect to the financing of the Project either through (i) itself in its own name; (ii) any of its wholly-owned subsidiaries; (iii) any "related person" as defined in Section 103(b) (6) (C) of the Internal Revenue Code of 1954, as amended; or (iv) any legal successor thereto, respectively, and in cooperation with other entities providing equipment for the Project, all subject to approval of the Issuer's bond counsel and, provided that suitable guaranties necessary or convenient for the marketability of Bonds shall be furnished, if required by the Issuer, and all references to the User shall be deemed to include the User acting directly through itself or any such approved entities. Section 5. The adoption of this Resolution, as requested in the Application, shall be deemed to constitute the acceptance of the User's proposal that it be further induced to proceed with providing the Project and the Application and this Resolution shall constitute an agreement between the Issuer and the User effective on the date that this Resolution is adopted, and this Resolution is affirmative of official action taken by the Issuer towards the issuance of the Bonds. RESOLUTION PROVIDING FOR ASSIGNMENT OF PRIVATE ACTIVITY BOND LIMIT CARRY FORWARD ELECTION WHEREAS, the City of Lubbock, Texas (the "City") is an "issuing authority" pursuant to Section 103(n) of the Internal Revenue Code of 1954, as amended (the "Code"), and Treas. Reg. §1.103(n) - 3T and is a "general purpose governmental unit" as defined therein; WHEREAS, the City desires to exercise its power to issue certain private purpose bonds through its City -sponsored industrial development corporation being the Lubbock Industrial Development Corporation (the "Corporation") which is a "constituted authority" empowered to issue private activity bonds on behalf of the City; NOW THEREFORE BE IT RESOLVED AND KNOWN THAT THE CITY hereby assigns its rights to issue the private activity bonds for the purpose of design, construction and acquisition of a 400 tons per day solid waste resource recovery facility the owner of which shall be Environmental Protection Resources, Inc. (Tax I.D. No. 76-0095201) generally located near the intersection of highway 87 and Municipal Drive (a site commonly referred to as "Municipal Hill") in the approximate amount of $45,000,000 as permitted in Article 5190.6, Vernon's Texas Civil Statutes, as amended, to the authorized official of the City and a record of this Assignment shall be maintained by the Corporation for the term of such private activity bond it issues, and further that the City assigns to the Corporation any election to carry forward such project under Section 103(n) of the Code. PASSED AND APPROVED this 20th day of December, 1984. ATTESTS i Sec ke.t,ary