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HomeMy WebLinkAboutRES 85-428 RESOLUTION APPROVING THE ISSUANCE OF BEAUMONT INDUSTRIAL DEVELOPMENT CORPORATION $4 ,000 ,000 INDUSTRIAL DEVELOPMENT REVENUE BONDS SERIES 1985 (KYLE PRESERVATION, LTD. , PROJECT) WHEREAS , by a duly adopted resolution of the City Council (the "Governing Body") of the City of Beaumont, Texas (the "Unit") , the Governing Body authorized and approved the creation of the Beaumont Industrial Development Corporation (the "Corporation") as a nonstock, nonprofit industrial development corporation under the provisions of the Development Corporation Act of 1979, as amended, Art. 5190 . 6 of Vernon' s Annotated Texas Civil Statutes (the "Act") ; and WHEREAS, the Corporation is authorized by the Act to issue bonds on behalf of the Unit for the purpose of paying all or a part of the costs of a "project" as defined in the Act , and to lease or sell the project or to loan the proceeds of the bonds to finance all or part of the costs of a project; and WHEREAS , the definition of "project" in the Act includes the land, buildings , equipment, facilities and improvements (one or more) found by the Board of Directors of the Corporation to be required or suitable for the promotion of commercial development and expansion and in furtherance of the public purposes of the Act, or for use by commercial enterprises , all as defined in the Rules of the Texas Economic Development Commission (the "Commission") , irrespective of whether in existence or required to be acquired or constructed thereafter , if such project is located in blighted or economically depressed areas ; and WHEREAS , the Governing Body of the Unit, has by separate Resolution (the "EBA Resolution") adopted on May 11 , 1982 as Resolution No. 82-174 , after required notice and public hearing, established an eligible blighted area as identified in the EBA Resolution in compliance with the requirements of the Act and the Rules; and WHEREAS , on August 6 , 1985 , Kyle Preservation, Ltd. (the "User") made written application for approval of a specific project to be constructed within the eligible blighted area consisting, among other things , of the site and facilities described in the Project Description attached hereto as Exhibit "A" (the "Project") ; and WHEREAS , the Rules of the Commission provide that after final acceptance of the resolution establishing the eligible blighted area, the Commission will approve projects for commercial uses in and adjacent to the eligible blighted area only after the applicant demonstrates to the satisfaction of the Commission that, among other things , the Unit has , after publishing and posting notice and holding a hearing, approved the proposed project, has made the determinations and findings required by the Rules , and has found that the proposed project to be financed will contribute significantly to the fulfillment of the redevelopment objectives of the City for the blighted or economically depressed area and is in furtherance of the public purposes of the Act; and WHEREAS , the Corporation desires to sell and to provide for the issuance and sale of its $4 ,000 ,000 Industrial Development Revenue Bonds , Series 1985 (Kyle Preservation, Ltd. , Project) (the "Bonds") , by adopting a Resolution substantially in the form attached hereto as Exhibit "B" (the "Resolution") ; and WHEREAS , Section 25 (f) of the Act provides that the Governing Body must , by written resolution adopted no more than sixty (60) days prior to the date of the delivery of the Bonds , specifically approve the Resolution of the Corporation providing for the issuance of the Bonds ; and WHEREAS , as a prerequisite to the exemption from federal income tax of interest on obligations issued pursuant to Section 103(b) (6) of the Internal Revenue Code of 1954 , as amended (the "Code") , Section 103(k) of the Code provides that such issue may be approved by the applicable elected representative of the governmental unit on whose behalf such obligations are issued and by each governmental jurisdiction over the area in which any facility to be financed from the proceeds of such issue is located (except that if more than one governmental unit has jurisdiction over the entire area in which such facility is located, only one governmental unit need approve the issue) , only after a public hearing has been held; and WHEREAS , the Unit is a "governmental unit" within the meaning of the Code; and WHEREAS , as the elected legislative body of the governmental unit within which the entire Project is located, the Governing Body is an "applicable elected representative" of the governmental unit with specific -2- authority within the meaning of Section 103(k) of the Code; and WHEREAS, the Project is located entirely within the geographic jurisdiction of the Unit, thus necessitating only one public hearing and approval pursuant to Section 103(k) of the Code; and WHEREAS , in compliance with Section 103(k) of the Code and the Open Meetings Law, as amended, Art. 6252-17 of Vernon' s Annotated Texas Civil Statutes , notice in writing of a public hearing to approve issuance of the Bonds has been published in a newspaper of general circulation in the Unit on November 22 , 1985 , and written notice has also been posted continuously at City Hall since December 6 , 1985 , and pursuant to such notice , the Governing Body has this day held a public hearing for the purpose of considering the authorization and approval of the proposed Project and the issuance of the Bonds ; and WHEREAS, this public hearing has been conducted in order to provide an opportunity for persons with differing views on both the authorization and issuance of the Bonds and the location and nature of the Project to be heard, and in order to comply with Section 103(k) of the Code and the Act; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT, TEXAS , THAT: Section 1 . The Governing Body hereby finds and determines that the Project proposed by the User conforms with the overall objectives , authorizations , and limitations specified in the EBA Resolution as required by such Resolution and Rules. Section 2 . The Governing Body finds that the proposed Project to be financed for commercial use will significantly contribute to the fulfillment of the overall redevelopment objectives of the Unit for such eligible blighted area, that it is in furtherance of the public purposes of the Act, and that it is located within the designated blighted area established in the EBA Resolution, and that it conforms to the project approval standards specified in the Rules and in the EBA Resolution. Section 3. The Unit hereby approves the Project , having mace tFe determinations and findings required by the EBA Resolution, the Rules , and the Act. -3- Section 4 . The issuance of the Bonds and the Resolution the Corporation substantially in the form attached hereto as Exhibit "B" , pursuant to which the Bonds are to be sold and issued, are hereby approved by the Governing Body on behalf of the Unit as required by Section 25(f) of the Act and by the Code. Section 5 . As a part of and within the scope of the approvals granted herein, the Governing Body hereby finds and determines that (i) the initial owner of the Project is Kyle Preservation, Ltd. , a Texas limited partnership , (ii) the maximum aggregate face amount of the Bonds to be issued with respect to the Project is $4 ,000 ,000 and (iii) the Project Description attached hereto as Exhibit "A" includes a general , functional description and a general description of the location of the Project as required by the Code and the regulations promulgated thereunder. Section 6 . This resolution is adopted for the purpose of satisfying the conditions and requirements of the Act , the Rules , and EBA Resolution with respect to the Project. This resolution is also adopted for the purpose of satisfying the conditions and requirements of Section 103 of the Code, the regulations promulgated thereunder, and any requirements for a public hearing and approval by an elected official or legislature which may be imposed by applicable law prior to the issuance of the Bonds , and for the benefit of the Corporation, the Unit , and the owners or holders from time to time of the obligations of the Issuer and all other interested persons . Section 7 . The Mayor and City Clerk of the City of Beaumont, Texas , are hereby directed to provide a certified copy of this resolution to the Executive Director of the Commission to confirm the findings made and approvals granted by the Unit with respect to the Project. Section 8. The Governing Body hereby finds and determines tFat the issuance of the Bonds to finance the Project will accomplish the specific public purpose for which the Corporation was created. Section 9 . There is hereby assigned and transferred to the Corporation the amount of ceiling of private activity bonds which is allocated to the Unit for the Bonds and the Project pursuant to the laws of the State of Texas (including without limitation Art. 5190.9 , House Bill 690 , Acts of the 69th Legislature , Regular Session, 1985. -4- Section 10. The Governing Body has considered evidence of the p—M—ication and posting of notice of this meeting and public hearing and officially finds , determines , recites , and declares that sufficient written and reasonable public notice of the date , hour and place of this meeting and public hearing and of the subject matter of this resolution, including the general, functional description of the Project and the general description of its location, was published in a newspaper of general circulation in the Unit not less than fourteen (14) days prior to this meeting and public hearing, and was also posted on a bulletin board at a place convenient to the public in the City Hall of the Governmen- tal Unit (within the meaning of Section 103 of the Code) not less than seventy-two (72) hours preceding the convening of this meeting and public hearing; that such place of posting was readily accessible to the general public at all times from the time of posting until the convening of such meeting and public hearing; that such meeting and public hearing were open to the public as required by law at all times during which this resolution and the subject matter hereof were discussed, considered, and formally acted upon; that the giving of notice in the manner provided above was reasonably designed to apprise residents of the Unit of the proposed authorization and issuance of the Bonds and approval of the Project ; that the meeting and public hearing were conducted in a manner that provided a reasonable opportunity for persons with differing views on the issuance of the Bonds and the nature and location of the Project to be heard; and that this meeting and public hearing were held at a time and place convenient for persons affected by the financing of the Project and issuance of the Bonds ; and that the foregoing notice and hearing complied with the Open Meeting Law, as amended, Art. 6252-17 of Vernon' s Annotated Texas Civil Statutes , and Section 103(k) of the Code and the regulations thereunder. PASSED AND APPROVED this 10t ay o Decem 1985 . i o ity ot Beaumont , Texas - Exhibit "A" - Project Description Exhibit "B" - Resolution of Beaumont Industrial Development Corporation Authorizing Issuance of Bonds and Approving Documents -5- EXHIBIT "A" PROJECT DESCRIPTION The Project to be financed with the proceeds of the Bonds involves the construction of a commercial facility to be used as office and retail space and/or the renovation of an existing building into an office and retail complex. As presently envisioned, the Project will consist of one or more of the following: (i) construction and/or restoration of office and retail space not exceeding 100 ,000 square feet , (ii) acquisition and renovation of an existing 2-story building locally known as the "Kyle Building" , (iii) construction of any necessary parking facilities , (iv) acquisition of the Project site , and (v) acquisition, construction and installation of various items of equipment, facilities and furnishings which are functionally related and subordinate to the foregoing. The parcels of land comprising the Project site are located in the City' s Downtown Strategy Area and constitute the city block bounded by Orleans Street to the South, Liberty Avenue to the East, Pearl Street to the North, and Broadway Avenue to the West, in the City of Beaumont , Jefferson County, Texas , and a portion of such land is locally known as the "Kyle Building" tract. After completion of the Project , approximately 24 new permanent jobs will be created. RESOLUTION OF BEAUMONT INDUSTRIAL DEVELOPMENT CORPORATION AUTHORIZING ISSUANCE OF BONDS AND APPROVING DOCUMENTS WHEREAS , the Development Corporation Act of 1979 , as amended, Art. 5190 .6 of Vernon' s Annotated Texas Civil Statutes (the "Act") , authorizes and empowers the Beaumont Industrial Development Corporation (the "Corporation") to issue revenue bonds on behalf of the City of Beaumont, Texas (the "Unit") , to finance the cost of projects comprising land, buildings , equipment , facilities and improvements , found by the Board of Directors of the Corporation (the "Board") to be required or suitable for the promotion of commercial development and expansion and in furtherance of the public purposes of the Act , or for use by commercial enterprises , and which are located in "eligible blighted areas ' within the Unit (as defined in the Act) ; and WHEREAS , in accordance with the provisions of the Act on August 6 , 1985 , the Board adopted a certain Resolution concerning Issuance of Bonds to Finance a Project for Kyle Preservation, Ltd. , a Texas limited partnership (the "User") , whereby the Corporation agreed to provide for the financing of the cost of the User' s project (the "Project") which was initially described in Exhibit "A" to said Resolution and is more fully described in Exhibits "A" and "C" to the Loan Agreement between the Corporation and the User referenced below; and WHEREAS , for purposes of financing the cost of the Pro- ject , the Corporation now desires (i) to authorize the issuance of its Industrial Development Revenue Bonds , Series 1985 (Kyle Preservation, Ltd. , Project) (the "Bonds") , in the maximum aggregate principal amount of $4 ,000 ,000 , pursuant to the terms and provisions of a trust indenture, (ii) to provide for the sale of the Bonds to the purchaser described herein, (iii) to provide for the payment of the principal of and premium, if any, and interest on the Bonds with revenues derived from the loan of proceeds of the sale of the Bonds to the User to finance the costs of the Project pursuant to the terms and provisions of a loan agreement and (iv) to take and authorize certain other actions in connection with the foregoing; and WHEREAS, on December 10, 1985 , after a public hearing as required by Section 103(k) of the Internal Revenue Code of 1954 , as amended, and the applicable regulations promul- gated thereunder and in compliance with the Act and the rules and regulations of the Texas Economic Development Commission, the governing body of the Unit will adopt a written resolution specifically approving the Project and this resolution of the Corporation providing for the issuance of the Bonds; and WHEREAS, the Board has been presented with and has examined proposed forms of a trust indenture , a loan agree- ment, and a letter of representation, and the Board finds that the form and substance of such documents are satisfac- tory and the recitals and findings contained therein are true , correct and complete and hereby adopts and incorpor- ates by reference such recitals and findings as if set forth in full in this resolution, and finds that it is in the best interest of the public and the Corporation and assists in carrying out the public purposes of the Corporation and of the Act to authorize the execution and delivery of such documents ; and WHEREAS , the Board has also been presented with and has examined the proposed form of guarantee agreements pursuant to which B. F. Rieck and R. C. Jordan (the "Guarantors") will irrevocably and unconditionally guarantee the full and prompt payment of the principal of and premium, if any, and interest on the Bonds to the extent set forth in said agreements , and the Board finds the form and substance of such document is satisfactory, and that the agreements of the Guarantors contained therein constitute material inducements to the Corporation to issue and sell the Bonds and in reliance upon such agreements of the Guarantors , the Board is willing to adopt this resolution and authorize the actions to be taken hereby; NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE BEAUMONT INDUSTRIAL DEVELOPMENT CORPORATION THAT: 1 . The Corporation hereby authorizes and directs the issuance of the Bonds in the maximum aggregate principal amount of $4 ,000 ,000 , in accordance with a trust indenture substantially in the form of the Trust Indenture, dated as of December 1 , 1985 (the "Indenture") , by and between the Corporation and Allied Merchants Bank, as trustee (the "Trustee") , which was presented to the Board, the form, terms and provisions of such Indenture and the Bonds being hereby authorized and approved, and the President and the Vice President of the Corporation are hereby severally authorized and directed to execute and deliver such Indenture and the Bonds on behalf of the Corporation, and -2- the Secretary or Assistant Secretary of the Corporation is hereby authorized to attest and affix the Corporation' s seal thereto , with such changes therein as the officers executing the same may approve, such approval to be conclusively evidenced by such execution thereof. 2. The loan of the proceeds of the sale of the Bonds by the Corporation to the User in order to provide financing for the costs of acquiring and constructing the Project shall be effected pursuant to the terms and provisions of a loan agreement substantially in the form of the Loan Agreement , dated as of December 1 , 1985 (the "Loan Agreement") , by and between the Corporation and the User, which was presented to the Board, the form, terms and provisions of such Loan Agreement being hereby authorized and approved, and the President and the Vice President of the Corporation are hereby severally authorized and directed to execute and deliver such Loan Agreement on behalf of the Corporation, and the Secretary or Assistant Secretary of the Corporation is hereby authorized to attest and affix the Corporation' s seal thereto , with such changes therein as the officers executing the same may approve, such approval to be conclusively evidenced by such execution thereof. 3. As a condition to the actions authorized in Paragraphs 1 and 2 of this resolution, the Guarantors shall have executed and delivered to the Trustee guarantee agree- ments substantially in the form of the Guarantee Agreements , dated as of December 1 , 1985 (the "Guarantee Agreements") , between the Trustee and the Guarantors , which were pre- sented to the Board, and the form, terms and provisions thereof are hereby authorized and approved. 4 . The sale and delivery of the Bonds by the Issuer to Allied Bank Beaumont , N.A. (the "Initial Purchaser") is hereby authorized and approved. 5. The actions and obligations authorized in Paragraphs 1 through 4 of this resolution shall be subject to and conditioned upon the receipt by the Corporation, on the date of delivery and payment for the Bonds (the "Closing Date") , of (i) a letter of representation, dated the Closing Date , from the User and the Guarantors , duly authorized and executed by the User and the Guarantors , substantially in the form of the Letter of Representation (the "Letter of Representation") , which was presented to the Board, the form, terms and provisions of such Letter of Representation being hereby authorized and approved and the President and the Vice President of the Corporation are hereby severally -3- authorized to signify the Corporation' s acceptance and confirmation of such Letter of Representation by executing the same on behalf of the Corporation in multiple counterparts; (ii) an investment letter, dated the Closing Date, duly authorized and executed by the Initial Purchaser , substantially in the form of the Investment Letter (the "Investment Letter") , which was presented to the Board, the form, terms and provisions of such Investment Letter being hereby authorized and approved; (iii) a certificate from a representative of the Texas Economic Development Commission (the "Commission") , acting on behalf of the Commission, evidencing final approval of the Loan Agreement; (iv) an initial reservation of bond issuance authority from the Commission; (v) the purchase price for the Bonds ; and (v) such opinions , evidences , certificates , instruments or other documents as shall be requested by the Corporation' s Counsel or by Bond Counsel , to evidence due performance or satisfaction by the User and the Guarantors at or prior to such time of all agreements then to be performed and all conditions then to be satisfied by each of them. 6 . The officers , employees and agents of the Corporation, and each of them, shall be and each is expressly authorized, empowered and directed from time to time and at any time to do and perform all acts and things and to execute , acknowledge and deliver in the name and under the corporate seal and on behalf of the Corporation all certificates , financing statements , instruments and other papers , whether or not herein mentioned, as they may determine to be necessary or desirable in order to carry out the terms and provisions of this resolution and of the Bonds to be issued hereunder , as well as the terms and provisions of the Indenture , the Loan Agreement , the Guarantee Agreements and the Letter of Representation hereby authorized and approved, such determination to be conclusively evidenced by the performance of such acts and things and the execution of any such certificate , financing statement , instrument or other paper. 7 . The officers of the Corporation (with the assistance of the User) shall prepare a final transcript of the proceedings relating to the authorization, issuance, sale and delivery of the Bonds , which transcript shall be submitted to the Commission within sixty (60) days after the Closing Date. 8. Based upon representations made by the User to the Board, the Board hereby affirmatively finds that: -4- 4 V��-�� (a) the Project will have the effect of creating and stabilizing employment within the Unit; (b) the Project is required or suitable for the promotion of commercial development and expansion and is in furtherance of the public purposes of the Act, or for use by commercial enterprises , and will be located in an "eligible blighted area" of the Unit within the meaning of the Act; and (c) the Project will contribute to the economic growth or stability of the Unit by: (i) increasing or stabilizing employment opportunity; (ii) significantly increasing or stabilizing the property tax base; and (iii) promoting commerce within the Unit and the State of Texas . 9 . This resolution shall take effect and be in full force and effect upon and after its passage. PASSED AND APPROVED this 10th day of December , 1985. ATTEST: BEAUMONT INDUSTRIAL DEVELOP NT 60RP R� By: Secretary esi -5-