Loading...
HomeMy WebLinkAboutR-1983-08 .. . e . .' e e . e J e e ~ 3~-1 RESOLUTION OF CITY COUNCIL APPROVING AGREEMENT TO ISSUE BONDS BY AND BETWEEN CITY OF LA PORTE INDUSTRIAL DEVELOPMENT CORPORATION AND LA QUINTA MOTOR INNS, INC. WHEREAS, the City of La Porte, Texas (the "Unit"), a political subdivision, has approved and authorized the creation of the City of La Porte Industrial Development Corporation (the "Corporation") as a Texas nonprofit industrial development corporation, pursuant to the provisions of the Development Corporation Act of 1979, Article 5190.6, Vernon's Annotated Texas Civil Statutes, as amended (the "Act"), to act on behalf of the Unit to promote and develop industrial, manufacturing and commercial enterprises to promote and encourage employment and the public welfare; and WHEREAS, the Corporation is authorized by the Act to issue indus- trial development revenue bonds on behalf of the Unit for the purpose of paying all or part of the cost of a "project," as defined in the Act, and to sell or lease the project or to loan the proceeds of the bonds to finance all or part of the costs of the proj ect; and WHEREAS, the Corporation entered into an Agreement to Issue Bonds with La Quinta Motor Inns, Inc. (the "User"), pursuant to which the Corporation agreed, subject to certain conditions, to issue its tax exempt industrial development revenue bonds in the aggregate principal amount (excluding bonds issued to refund any of the Bonds) now estimated not to exceed $4,700,000, to provide funds to defray all or part of the cost of acquiring and constructing certain industrial, manufacturing or commercial facilities to be constructed by or to be leased or sold to the User; and WHEREAS, the City Council has reviewed the form and substance of the proposed Agreement to Issue Bonds between the Corporation and the User and intends, by adoption of this written Resolution, to approve said Agreement to Issue Bonds; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LA PORTE, TEXAS, THAT: Section 1: The Agreement to Issue Bonds, in the form at:tached hereto, entered into by and between the Corporation and the User, pursuant to which the Corporation agreed, subject to the conditions stated therein, to authorize and issue its industrial development revenue bonds in the aggregate principal amount (excluding bonds issued to refund any of the Bonds) now estimated not to exceed $4,700,000, to provide funds to defray all or part of the cost of the acquisition and construction of the industrial, manufacturing or commercial facility "'- "' . . e - e e '. e e e described in Exhibit "A" to said Agreement to Issue Bonds, is hereby approved. Section 2: This Resolution is adopted for the purpose of satisfy- ing the conditions and requirements of the Act and Section 103 of the Internal Revenue Code of 1954, as am~nded, and the regulations promul- gated thereunder and for the benefit of the Corporation, the Unit, the owners or holders from time to time of the obligations of the Corpora- tion and all other interested persons. Section 3: The Governing Body has cons idered evidence of the posting of notice of this meeting and officially finds, determines, recites and declares that a sufficient written notice of the date, hour and place of this meeting and of the subject of this Resolution was posted at a place convenient to the public on a bulletin board located at a place convenient to the public in the City Hall of the City of La Porte, Texas, for at least 72 hours preceding the scheduled time of such meeting; the place of posting was readily accessible to the general public at all times from such time of posting until the scheduled time of such meeting; and such meeting was open to the public as required by law at all times during which the Resolution and the subject matter thereof were discussed, considered and formally acted upon, all as required by the Open Meetings Law, Article 6252-17~ Vernon's Annotated Texas Civil Statutes, as amended. PASSED AND APPROVED this ~ day of April, 1983. ----------------------------------------------------------------------- -2- . e -. e e '. e '" e Exhibit "A" e AGREEMENT TO ISSUE BONDS . THIS AGREEMENT TO ISSUE BONDS, entered into as of the 4th day of April, 1983, by and between the City of La Porte Industrial Development Corporation (the' "Corporation"), created pursuant to the authority of the Development Corporation Act of 1979, Article 5190.6, Vernon's Annotated Texas Civil Statutes, as amended (the "Act"), and La Quinta Motor Inns, I~c., a Texas corporation (the "User"), for the purpose of carrying out the public purpose set forth in the Act, including the promotion and, development of industrial, manufacturing and commercial enterprises t~ promote and encourage employment and the public welfare; ~ ! 1: !i ~ ~ ~ ~ 1: !!: WHEREAS,' the City of La Porte, Texas (the "Unit"), has authorized and approved the creation of the Corporation to act on behalf of the Unit for the public purpose of furthering on behalf of the Unit the promotion and development of industrial, manufacturing and commercial enterprises to promote and encourage employment and the public welfare; and WHEREAS,. the Corporation is authorized by the Act to acquire, construct, improve, maintain, equip and furnish and to lease or sell "projects," as such term is defined in the Act, or to make loans for the purpose of providing financing for all or part of the costs of a proj- ect, and the Corporation is further authorized to issue its bonds for the purpose of paying all or part of the costs of a project; and , WHEREAS, the User desires to acquire and construct a facility, more particularly described in Exhibit "A" attached hereto, within the Unit (the "Project"), which Project is suitable for the promotion of commercial development and expansion, the promotion of employment in the Unit and for use by commercial enterprises; and WHEREAS, pursuant to the Act, the Corporation is authorized to issue the bonds hereinafter described, which bonds shall never con- stitute an indebtedness or pledge of the faith and credit of the State of Texas (the "State"), of the Unit, or of any other political corpora- tion, subdivision or agency of the State within the meaning of any State constitutional or statutory provision, shall never be paid in whole or in part out of any funds raised or to be raised by taxation or any other funds of the Unit, and shall never be paid in whole or in part out of any funds of the Corporation except those derived frcm or in connection with the sale or lease of the Project or the loan of funds to finance the Project; and . e e e e - . e '" e e WHEREAS, to promote and encourage employment and 'the public wel- fare, the Corporation agrees to issue, at the request of the User, one or more series of the Corporation's industrial development revenue bonds (the "Bonds") for the purpose of paying all or part of the cost of con- structing and acquiring the Project, or for the purpose of loaning the proceeds' to the User in order to provide temporary or permanent financ- ing of all or part of the cost of constructing and acquiring the Proj- ect, and the Corporation and the User deem it desirable and proper that this Agreement to Issue Bonds constitute a formal record of such agree- ment and understanding in order that the User may proceed with or pro- vide for the acquisition and construction of the Project; and WHEREAS, the User has evidenced a desire to cooperate with the Corporation in the acquisition and construction of the Project and for the Corporation to authorize and issue the Bonds in the aggregate prin- cipal amount now estimated not to exceed $4,700,000, to provide the funds to defray all or part of the cost of the acquisition and con- struction of the Project; and WHEREAS, the Corporation and the User contemplate that the Project will be sold on an installment payment basis or leased to the User or that proceeds of the Bonds will be loaned to the User in order to pro- vide temporary or permanent financing of all or part of the costs of the Project and that the installment purchase, rental or loan payments therefor will be sufficient to pay the principal of and any premium and interest on the Bonds; and . WHEREAS, it is the desire of the Corporation that the acquisition and construction of the Project occur at the earliest possible time so as to promote and encourage employment and the public welfare within the Unit; and WHEREAS, it is intended that this Agreement to Issue Bonds shall constitute "some other similar official action" toward the issuance of the Bonds within the meaning of Section 1.103-8(a)(5) of the Treasury regulations issued pursuant to Section 103(b) of the Internal Revenue Code of 1954, as amended (the "Code"); NOW, THEREFORE, in consideration of the premises and other good and valuable consideration and of the mutual benefits, covenants and agree- ments herein expressed, the Corporation and the User agree as follows: 1. The User shall commence with the acquisition and construction of the Project, which Project will be in furtherance of the public purposes of the Corporation and the Unit as aforesaid, and the User will provide, or cause to be provided, at its expense, the necessary interim financing to expedite the commencement of the acquisition and -2- . e e e e . e '" e e construction of the Project. On or prior to the issuance of the Bonds, the User will enter into a purchase, lease or loan agreement on an installment payment basis (herein called the "Agreement") with the Corporation under which the Corporation will sell or lease the Project to the User or make a loan to the User for the purpose of providing temporary or permanent financing of all or part of the costs of the Project and the User will make installment payments sufficient to pay the principal of and any premium and interest on such series of Bonds. The Bonds shall never constitute an indebtedness or pledge of the faith and credit of the State, of the Unit, or of any other political corporation, subdivision or agency of the State within the meaning of any State constitutional or statutory provision, and the Bonds shall never be paid in whole or in part out of any funds raised or to be raised by taxation or any other funds of the Unit, and shall be payable from the funds of the Corporation derived from or in connection with the sale or lease of the Project or the loan of the proceeds of the Bonds. 2. On receipt of a ruling from the Internal Revenue Service (or the opinion of nationally recognized bond counsel) that interest paid on the Bonds is exempt from federal income taxation, the Corporation hereby agrees to issue, pursuant to the terms of the Act, the Bonds, or from time to time the portion thereof as may be the subject of such a ruling or opinion as aforesaid, in an appropriate principal amount not exceed- ing that which is the subject of a ruling or opinion as aforesaid, maturing in such amount and times, bearing interest at the rates, pay- able on the dates and having such optional and mandatory redemption features and prices as are approved in writing by the User. The Cor- poration will deliver the Bonds to the purchaser designated by the User and will cooperate to the fullest extent in facilitating delivery of the Bonds. 3. The Corporation and the User agree that the Bonds may be issued either at one time or in several series from time to time as the User shall request in writingj provided, however, that the parties agree that the Bonds will be issued in an aggregate principal amount as will not exceed the amount which is the subject of a ruling or rulings or opinion or opinions as aforesaid. A request in writing for issuance of one or more series of Bonds shall not affect the obligation hereunder of the Corporation to issue the remaining Bonds as written requests there- for are received. It is further agreed that the proceeds of the Bonds or portions thereof whether or not issued in a series, shall not be invested so as to constitute the Bonds or a portion thereof as arbitrage bonds within the meaning of Section 103(c) of the Code and applicable regulations promulgated pursuant thereto. 4. The payment of the principal of and any premium and interest on the Bonds shall be made solely from moneys realized from the sale or -3- .. e e e e . e " e e lease of the Project or from moneys realized from the loan of the pro. ceeds of the Bonds to finance all or part of the costs of the Project. 5. The costs of the Project (hereinafter the "Project Costs") may include any cost of acquiring, constructing, reconstructing" improving and expanding the Project. Without limiting the generality of the foregoing, the Project Costs shall specifically include the cost of the acquisition of all land, rights-of-way, property rights, easements and interests, the cost of all machinery and equipment, financing charges, interest prior to and during construction and for one year after com- pletion of construction whether or not capitalized, necessary reserve funds, costs of estimates and of engineering and legal services, plans, specifications, surveys, estimates of cost and of revenue, other expen- ses necessary or incident to determining the feasibility and practic- ability of acquiring, constructing, reconstructing, improving and ex- panding the Project, administrative expenses and such other expenses as may be necessary or incident to the acquisition, construction, recon- struction, improvement and expansion of the Project, the placing of the Proj ect in operation and all incidental expenses, costs and charges relating to the Project not enumerated above. The parties agree, upon request, to provide or to cause to be provided to each other any data or information which may be reasonably required to verify any of the Pro- ject Costs enumerated in this paragraph. The User agrees that it will be responsible for and pay any Project Costs incurred prior to issuance of the Bonds and will pay all Project Costs which are not or cannot be paid or reimbursed from the proceeds of the Bonds. 6. The User agrees that it will at all times indemnify and hold. harmless the Corporation, the Board of Directors of the Corporation, the Unit, the City Council of the Unit and any of the officers, directors, employees, agents, servants and any other party acting for or on behalf of the Corporation or the Unit (such parties being hereinafter referred to as the "Indemnified Parties") against any and all losses, costs, damages, expenses and liabilities (collectively herein called "Losses") 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 relating to one or more Claims, as hereinafter defined, even if such Losses or Claims, or both, directly or indirectly result from, arise out of or relate to, or are asserted to have resulted from, arisen out of or related to, in whole or in part, one or more negligent acts or omissions of the Indemnified Parties in connection with the issuance of the Bonds or in connection with the Project. The term "Claims" as used herein shall mean all claims, lawsuits, causes of action and other legal actions and proceedings of whatsoever nature, including but not limited to claims, lawsuits, causes of action and other legal actions and proceedings, involving bodily or personal injury or death of any person -4- . e ....... - '. e e . e . ., e e or damage to any property (including, but not limited to, persons employed by the Corporation, the Unit, the User or any other person and all property owned or claimed by the Corporation, the Unit, the User, any affiliate of the User or any other person) or involving damages relating to the issuance, offering, sale or delivery of the Bonds brought against any Indemnified Party or to which any Indemnified Party is a party, even if groundless, false or fraudulent, that directly or indirectly result from, arise out of or relate to the issuance, offering, sale or delivery of the Bonds or the design, construction, installation, operation, use, occupancy, maintenance or ownership of the Project or any part thereof. The obligations of the User shall apply to all Losses or Claims, or both, that result from, arise out of or are related to any event, occurrence, condition or relationship prior to termination of this Agreement to Issue Bonds, whether such Losses or Claims, or both, are asserted prior to termination of this Agreement to Issue Bonds or thereafter. None of the Indemnified Parties shall be liable to the User for, and the User hereby releases each of them from all liability to the User for, all injuries, damages or destruction of all or any part or parts of any property owned or claimed by the User that directly or indirectly result from, arise out of or relate to the design, construction, operation, use, occupancy, maintenance or ownership of the Project or any part ,thereof, even if such injuries, damages or destruction directly or indirectly result from, arise out of or relate to, in whole or in part, one or more negligent acts or omissions of the Indemnified Parties in connection with the issuance of the Bonds or in connection with the Project. Each Indemnified Party, as appropriate, shall reimburse the User for payments made by the User to the extent of any proceeds, net of all expenses of collection, actually received by them from any insurance with respect to the Loss sustained. Each Indemnified Party, as appropriate, shall have the duty to claim any such insurance proceeds and the Indemnified Party, as appropriate, shall assign its respective rights to such proceeds, to the extent of such required reimbursement, to the User. In case any action shall be brought or to the knowledge of any Indemnified Party, threatened against any of them in respect of which indemnity may be sought against the User, the Indemnified Party shall promptly notify the User in writing and the User shall have the right to assume the investigation and defense thereof, including the employment of counsel and the payment of all expenses. The Indemnified Party shall have the right to employ separate counsel in any such action and participate in the investigation and defense thereof, but the fees and expenses of such counsel shall be paid by the Indemnified Party unless (a) the employment of such counsel has been specifically authorized by the User, in writing, (b) the User has failed to assume the defense and to employ counselor (c) the named parties to any such action (including any impleaded parties) include both an Indemnified Party and the User, and said Indemnified Party shall have been advised by such counsel that there may be one or more legal -5- . e e e e . e .;, e e defenses available to it which are different from or additional to those available to the User (in which case, if the Indemnified Party notifies the User in, writing that it elects to employ separate counsel at the User's expense, the User shall not have the right to assume the defense of such action on behalf of such Indemnified Party, it being understood, however, that the User shall not, in connection with anyone such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys for the Indemnified Parties [provided that any Indemnified Party which has been advised by counsel that there may be one or more legal defenses available to it which are different from or additional to those available to any other Indemnified Party shall have the right to employ separate counsel whose fees and expenses shall be paid by the User], which firm shall be designated in writing by said Indemnified Party). The Indemnified Party, as a condition of such indemnity, shall use its best efforts to cooperate with the User in the defense of any such action or claim. The User shall not be liable for any settlement of any such action without its consent but, if any such action is settled with the consent of the User or if there be final judgment for the plaintiff in such action, the User agrees to indemnify and hold harmless the Indemnified Party from and against any Loss by reason of such settlement or judgment. The provi- sions of this paragraph shall survive the expiration or termination of this Agreement to Issue Bonds. 7. If within three (3) years from the date hereof (or such later date as shall be mutually satisfactory to the Corporation and the User) the Corporation and the User shall not have agreed to mutually accept- able terms for the Bonds and for the sale and delivery thereof and mutually acceptable terms and conditions of the Agreement, the User agrees that it will pay the Corporation for all unpaid Project Costs which the Corporation shall have incurred and this Agreement to Issue Bonds shall thereupon terminate. In the event that the User elects, prior to any such termination, not to proceed with the issuance of the Bonds for any reason, it shall so notify the Corporation in writing and shall promptly pay to the Corporation all Project Costs incurred by the Corporation prior to such notification, and if payment is so made, the User's obligations under paragraph 5 above shall terminate from and after the date of such notification. 8. The User may, without the consent of the Corporation, transfer or assign this Agreement to Issue Bonds or transfer or assign any or all of its rights and delegate any or all of its duties hereunder to any of its subsidiaries or affiliates currently existing or hereafter created, but no such transfer, assignment or delegation shall, without the writ- ten consent and approval of the Corporation, relieve the User of its -6- ~ . e e e e ~ e .... e e liability for payment of Project Costs under paragraphs 5 and 7 hereof or indemnification under paragraph 6 hereof. This Agreement to Issue Bonds and accompanying authorizing resolu- tion shall be deemed and construed a resolution authorizing the issuance of the Bonds and other similar official action of the Corporation, acting by and through its Board of Directors, toward the issuance of the Bonds as herein contemplated. IN WITNESS WHEREOF, the City of La Porte Industrial Development Corporation, acting pursuant to a resolution of its Board of Directors, and La Quinta Motor Inns, Inc. have caused this Agreement to Issue Bonds to be executed and attested by their duly authorized officers as of the year and date first above written. CITY OF LA PORTE INDUSTRIAL DEVELOPMENT CORPORATION . ATl'EST: Secretary ,~~'(SEAL) '~, LA QUINTA MOTOR INNS, INC. By Title: A'ITEST: Title: (SEAL) -7- 'l " . e 'e e e .,. e . .. e e EXHIBIT "A" The project to be financed with the proceeds of the Bonds (the "Project") is the construction of (i') a two-story, 114-room motor inn with parking facilities for approximately 130 cars and (ii) a free- standing restaurant to accommodate approximately 150 patrons with on-premises parking facilities for approximately 55 cars. The project will include acquisition and improvement of the Project site, construc- tion of the motor inn facility containing approximately 130,092 square feet and the restaurant containing approximately 2600 square feet, landscaping and acquisition and installation of various items of fur- nishings, fixtures, equipment and improvements functionally related and subordinate to the foregoing. The Project will be located in the southeast quadrant of the intersection of US Highway 146 and Fairmont Parkway in the City of La Porte, Texas. .