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011 of 1982 - Intent to Issue Industrial Development Revenue Bonds for the The Project . r• 4/ Q 82-1 RESOLUTION #11, 1982 Salt Lake City, Utah January 19, 1982 The City Council of Salt Lake City, Salt Lake County, State of Utah, met in regular public session on the 19th day of January, 1982, at the hour of 6: 00 p.m. at its regular meeting place in Salt Lake City, Salt Lake County, Utah. On roll call, the following members were determined present : Sydney Fonnesbeck Chairperson Ronald J. Whitehead Councilmember Grant Mabey Councilmember Palmer DePaulis Councilmember Ione M. Davis Councilmember Edward W. Parker Councilmember Alice Shearer Councilmember There were also present : Ted L. Wilson Mayor Kathryn Marshall City Recorder Roger Cutler City Attorney After the meeting had been duly called to order, the City Recorder presented to the City Council an affidavit evi- dencing the giving of not less than twenty-four (24 ) hours pub- lic notice of the agenda, date, time and place of the January 19, 1982 meeting in compliance with the requirements of Section 52-4-6 ( 2) , Utah Code Annotated , 1953, as amended, by ( 1) post- ing written notice of the meeting at the principal office of the City Council and ( 2) providing notice to at least one news- paper of general circulation within the geographic jurisdiction of Salt Lake City, Utah, or to a local media correspondent . The affidavit was ordered recorded in the minutes of the meet- ing and is as follows : STATE OF UTAH ) : ss. COUNTY OF SALT LAKE ) I, the undersigned, the duly qualified and acting Re- corder of Salt Lake City, Salt Lake County , State of Utah, do hereby certify, according to the records of said City Council in my official possession, and upon my own knowledge and be- lief, that in accordance with the requirements of Section 52-4-6( 2) , Utah Code Annotated , 1953, as amended , I gave not less than twenty-four (24) hours public notice of the agenda, date, time and place of the January 19, 1982 public meeting held by the City Council of Salt Lake City, Utah, by: ( a) Causing a Notice of Public Meeting to be posted at the principal office of the City Council in Salt Lake City, Utah, on January 15, 1982, at least twenty-four (24) hours before the convening of the meeting, in the form at- tached hereto as Exhibit A; said Notice of Public Meeting having continuously remained so posted and available for -2- public inspection during the regular office hours of the Salt Lake City Offices until the convening of the meeting; and (b) Causing a copy of the Notice of Public Meeting in the form attached hereto as Exhibit A to be provided on January 15, 1982, at least twenty-four (24) hours before the convening of the meeting , to the Deseret News, a news- paper of general circulation within the geographical juris- diction of Salt Lake City, and to each local media corre- spondent, newspaper, radio station, or television station which has requested notification of meetings of the Salt Lake City Council. IN WITNESS WHEREOF, I have hereunto subscribed my of- ficial signature and impressed hereon the official seal of Salt Lake City, Utah, as of the 19th day of January, 1982. CI Ty R order (CITY SEAL) Thereupon, a proposed resolution was introduced by Councilmember Shearer relating to the issuance of the Indus- trial Development Revenue Bonds of Salt Lake City (the "Bonds" ) to National Distribution Systems, Inc . ( "NDS" ) , a Utah corpora- tion. The issue of Bonds is to be in an aggregate principal amount of up to $2,500 , 000 to finance the purchase of approxi- -3- mately 4 .2 acres of land adjacent to NDS ' present facility , which is near the Salt Lake City Foreign Trade Zone, and to construct thereon a building of approximately 80, 000 square feet . This construction will expand the warehousing operation presently conducted by NDS. After due discussion of the mat- ters contained in the resolution, a call for a vote of approval thereof was made by Councilmember Shearer and seconded by Coun- cilmember Mabey, whereupon the resolution was approved and adopted by the following vote . Aye: Ronald J. Whitehead Grant Mabey Palmer DePaulis Ione M. Davis Edward W. Parker Alice Shearer Nay: None Councilmember Fonnesbeck was absent when the vote was taken. Following the meeting the resolution was signed by Councilmember Fonnesbeck, the Memorandum of Agreement was exe- cuted by the Major, and both documents were attested by the City Recorder and recorded in the official records of Salt Lake City. The resolution and the Memorandum of Agreement are as follows : -4- RESOLUTION NO. 11 ADOPTED: January 19, 1982 A RESOLUTION OF THE CITY COUNCIL OF SALT LAKE CITY, UTAH, EXPRESSING ITS INTENT TO ISSUE INDUSTRIAL DEVELOPMENT REVENUE BONDS OF SALT LAKE CITY IN AN AGGREGATE PRINCIPAL AMOUNT OF UP TO $2 ,500, 000 TO FINANCE THE PURCHASE OF APPROXIMATELY 4.2 ACRES OF LAND AND THE CONSTRUCTION BY NATIONAL DISTRIBU- TION SYSTEMS , INC. , A UTAH CORPORATION, OF AN 80, 000 SQUARE FOOT WAREHOUSING FACILITY TO BE LOCATED NEXT TO THE SALT LAKE CITY FOREIGN TRADE ZONE AND NATIONAL DISTRIBUTION SYSTEMS , INC. ' S PRESENT FACILITY, AND AU- THORIZING THE EXECUTION OF A MEMORANDUM OF AGREEMENT BETWEEN NATIONAL DISTRIBUTION SYS- TEMS, INC. AND SALT LAKE CITY IN CONNECTION THEREWITH. WHEREAS , NATIONAL DISTRIBUTION SYSTEMS, INC. , a Utah corporation, (the "Developer" ) , desires to finance the purchase of approximately 4.2 acres of land next to the Salt Lake City Foreign Trade Zone and the Developer ' s present facility and the construction thereon of an 80, 000 square foot warehousing fa- cility, (the "Project" ) , said Project being more particularly set forth and described in Exhibit A attached hereto and by this reference incorporated herein, and desires to have Salt Lake City, (the " Issuer" ) issue its industrial development re- venue bonds to provide the construction and/or permanent fi- nancing for the Project; and WHEREAS , the Issuer is authorized pursuant to the Utah Industrial Facilities Development Act , Sections 11-17-1 through 11-17-17, inclusive, Utah Code Annotated, 1953, as amended, to issue its industrial development revenue bonds ( referred to herein as "revenue bonds" ) to finance projects suitable for industrial, manufacturing, business and professional office building facilities or any other business purposes; and WHEREAS , the Developer is reluctant to take steps to- ward the realization and completion of the Project without sa- tisfactory assurance from the Issuer that the proceeds of the sale of the revenue bonds of the Issuer will be made available to finance the development of said Project; and WHEREAS , it is deemed necessary and advisable for the development , welfare and prosperity of the Issuer and its in- habitants that the Project be constructed, and that the Issuer take such action as may be required under applicable statutory -5- provisions to authorize and issue its revenue bonds in an ag- gregate principal amount of up to $2,500, 000 ; and WHEREAS , a Memorandum of Agreement has been presented to the Issuer under the terms of which the Issuer agrees, sub- ject to the provisions of such Memorandum of Agreement , to is- sue its revenue bonds to finance the construction of the Pro- ject; and WHEREAS , it is considered necessary and desirable and in the best interest of said Issuer that execution of said Memorandum of Agreement be authorized for and on behalf of the Issuer; NOW THEREFORE, Be It Resolved by the City Council of Salt Lake City, Salt Lake County, Utah as follows : Section 1. In order to assure the location of this Project within the boundaries of Salt Lake City, Utah, with the resulting public benefits which will flow therefrom, it is deemed necessary and advisable that the Memorandum of Agreement hereinafter referred to, be approved and executed for and on behalf of the said Issuer. Section 2. The Mayor of Salt Lake City is hereby au- thorized to execute and the City Recorder is hereby autho- rized to attest a Memorandum of Agreement with the Develop- er in substantially the form of such Memorandum of Agree- ment as was presented to this meeting and as is attached hereto as Exhibit B or with such changes therein as shall be approved by the officers executing the same. Section 3. The officers and employees of the Issuer are hereby authorized to take such further action as is necessary to carry out the intent and purpose of the Memo- randum of Agreement as executed and to cause its revenue bonds to be issued in an aggregate principal amount of up to $2,500, 000 upon the terms and conditions stated in such Memorandum of Agreement , which Memorandum of Agreement is attached as Exhibit B hereto and by this reference made a part of this Resolution. The revenue bonds hereby author- ized shall be limited obligations of the Issuer payable solely out of the amounts derived by the Issuer from the Developer as the result of financing the Project . The re- venue bonds shall not constitute or give rise to a general obligation or liability of the Issuer or a charge against its general credit or taxing powers. -6- Section 4. All resolutions and parts thereof in con- flict herewith are hereby repealed to the extent of such conflict . Section 5. The Recorder of Salt Lake City is hereby authorized to cause to be published in a newspaper quali- fied to carry legal notices having general circulation in Salt Lake City, Utah, this Resolution and any resolutions hereafter adopted by the City Council dealing with the is- suance of the revenue bonds of Salt Lake City to finance the acquisition and construction of the Project . Section 6. The City Council considers that this Reso- lution is necessary and in the best interest of the Issuer, and therefore, it shall become effective immediately upon its approval and adoption. Approved and adopted as of this 19th day of January, 1982 . (CITY SEAL) CITY COUNCIL OF SALT LAKE CITY, UTAH ATTEST: By SYDNEY FONNESBECK City e o der Council Chairperson -7- EXHIBIT A TO RESOLUTION NO. 11 DESCRIPTION OF PROJECT The Project ( "Project" ) consists of the purchase of approximately 4.2 acres of land located adjacent to the Salt Lake City Foreign Trade Zone and National Distribution Systems, Inc. 's, ( "NDS" ) , existing facility and the construction thereon of an 80 , 000 square foot warehousing facility. This construc- tion will be an expansion of NDS ' present warehousing operation. -8- EXHIBIT B TO RESOLUTION NO . 11 MEMORANDUM OF AGREEMENT THIS MEMORANDUM OF AGREEMENT is between SALT LAKE CITY, a body corporate and politic of the State of Utah (the " Issuer" ) and NATIONAL DISTRIBUTION SYSTEMS , INC. , a Utah cor- poration, (the "Developer" ) . 1. Preliminary Statement. Among the matters of mu- tual inducement which have resulted in this Agreement are the following: (a) The Issuer is a city of the State of Utah and a body corporate and politic and is authorized pursuant to Sections 11-17-1 through 11-17-17, inclu- sive, Utah Code Annotated , 1953, as supplemented and amended (the "Act" ) , to issue its industrial develop- ment revenue bonds (referred to herein as "revenue bonds" ) to finance certain industrial and commercial facilities. (b) The Developer intends to purchase approxi- mately 4 .2 acres of land adjacent to the Salt Lake City Foreign Trade Zone and the Developer' s present facility and construct thereon an 80 ,000 square foot warehousing facility (the "Project" ) , which Project is more fully described in Exhibit "A" attached hereto and by this reference incorporated herein. The De- veloper has requested that the Issuer assist the De- veloper in financing the cost of the Project by issu- ing its revenue bonds. (c) The revenue bonds of the Issuer shall be limited obligations of the Issuer payable solely out of the amounts derived by the Issuer from the Develop- er, and the Project shall be financed from the pro- ceeds of the sale of the revenue bonds in exchange for an agreement by the Developer to pay amounts suffi- cient to pay the principal of, premiums, if any, and interest on such revenue bonds. Such bonds shall not constitute nor give rise to a general obligation or liability of the Issuer or a charge against its gen- eral credit or taxing powers. (d) The Issuer finds that the financing as here- in described will be for a public purpose as set forth in the Act . Subject to due compliance with all re- quirements of law, by virtue of such authority as may -9- now or hereafter be conferred , and subject to receipt of adequate assurance from the Developer that there are one or more purchasers for the revenue bonds, the Issuer will issue and sell its revenue bonds to fi- nance all of the costs of the Project in an aggregate principal amount of up to $2,500, 000. 2 . Undertakings on the Part of the Issuer. Subject to the conditions above stated the Issuer agrees as follows: ( a) The Issuer shall authorize the issuance and sale of its revenue bonds, pursuant to its lawful and constitutional authority, in an aggregate principal amount of up to $2,500, 000. ( b) The Issuer shall enter into a loan agreement with the Developer, whereby the Issuer shall loan to the Developer the proceeds of the revenue bonds and whereby the Developer shall pay to, or on behalf of the Issuer, such sums as shall be sufficient in the aggregate, to pay the principal of and interest and redemption premium, if any, on the revenue bonds as and when the same shall become due and payable; pro- vided, however, that under all circumstances the De- veloper shall be fully responsible for the debt repre- sented by the revenue bonds. The repayment of the revenue bonds shall be the general obligation of the Developer. The Issuer does not warrant that the loan to the Developer of the proceeds of the revenue bonds will be sufficient to pay all of the costs of con- struction or completion of the Project . (c) The Issuer shall take or cause to be taken such other acts and adopt such further proceedings as may be required to implement the aforesaid undertak- ings or as it may deem appropriate in pursuance there- of; however, the Issuer shall not be responsible for locating a purchaser of the revenue bonds. 3. Undertakings on the Part of the Developer. Sub- ject to the conditions above stated, the Developer agrees as follows : (a) The Developer shall use all reasonable ef- forts to find one or more purchasers for the revenue bonds. -10- ( b) Contemporaneously with the delivery of the revenue bonds, the Developer shall enter into a loan agreement with the Issuer, under the terms of which the Issuer shall loan to the Developer the proceeds of the revenue bonds and the Developer shall obligate itself to pay to or on behalf of the Issuer sums suf- ficient in the aggregate to pay the principal of and interest and redemption premium, if any, on the reve- nue bonds as and when the same shall become due and payable; provided, however, that under all circum- stances the Developer shall be fully responsible for the debt represented by the revenue bonds. The De- veloper' s obligations may be secured by among other things, ( i) a first priority mortgage or deed of trust encumbering the land and constructed facility; and ( ii) a guarantee of the payment of the indebtedness evidenced by such loan agreement by Interwest Corpora- tion, the parent of the Developer. The loan agreement shall require the Developer to indemnify the Issuer against any costs or damages arising from or connected with the offer and sale of the revenue bonds and the payment or default in payment of the principal, pre- miums, if any, and interest on the revenue bonds, in- cluding without limitation any losses that the Issuer might incur by reason of the violation of the arbi- trage rules contained in the Internal Revenue Code or the Regulations promulgated thereunder, or as the re- sult of any representation, certification or warranty made by the Issuer in connection with the issuance of the revenue bonds. (c) The Developer shall take such further action as may be required to implement its aforesaid under- takings or as it may deem appropriate in pursuance thereof . (d) The Developer shall notify the Issuer as to whether the revenue bonds will be sold on open market through an underwriter or by private placement . If by private placement , the Developer, upon determination, shall notify the Issuer as to who the purchaser or purchasers will be. A local banking institution shall act as the trustee for the revenue bond issue, pro- vided that the local trustee will perform the func- tions of trustee for a fee no greater than the fee that would be charged by any non-local corporate trustee acceptable to the Developer and the purchasers of the revenue bonds, which non-local corporate trustee has expressed a willingness to serve in such capacity. -11- (e) The Developer shall submit for the Issuer' s approval a summary of the assets of the Developer and of any other entities committed to the repayment of the revenue bonds. ( f ) If the revenue bonds will be purchased by an underwriter, the Developer shall cause to be provided to the Issuer a summary of the underwriter' s experi- ence in the placement of industrial revenue bonds. It is presently anticipated that the revenue bonds shall be sold through a private placement . However if the revenue bonds are to be sold on the open market through an underwriter, the Developer shall deliver the documents to be used in the placement of the reve- nue bonds to the Salt Lake City Attorney for approval, and the underwriter may be required to have the reve- nue bonds rated at a rating acceptable to the Issuer. 4. General Provisions. ( a) All commitments of the Issuer under para- graph 2 hereof and of the Developer under paragraph 3 hereof are subject to the conditions that on or before eighteen months from the date hereof (or such other date as shall be mutually satisfactory to the Issuer and the Developer) the Mayor of the Issuer and the Developer shall have agreed upon mutually acceptable terms for the revenue bonds and for the issuance, sale and delivery thereof and upon mutually acceptable terms and conditions for the loan agreement and other documents referred to in paragraphs 2 and 3 hereof . (b) Whether or not the revenue bonds are issued or any transaction contemplated by this Agreement is consummated, the Developer has previously paid to the Issuer $2500 upon submission to the Issuer of the De- veloper' s application for issuance of the revenue bonds, for the reasonable and necessary costs and ex- penses incurred by the Issuer in connection with the execution of this Agreement . The Developer agrees that it will pay the Issuer an additional fee of $2500 upon the issuance of the revenue bonds for all reason- able and necessary direct out-of-pocket expenses, in- cluding reasonable attorneys' fees for the review and/or preparation of documents, which the Issuer may incur at the Developer' s request arising from the per- formance by the Issuer of its obligations hereunder, and this Agreement shall thereupon terminate. -12- (c) The Salt Lake City Attorney shall have the right to review the final documentation prepared in connection with the issuance of the revenue bonds in order to ascertain that the requirements of this Agreement have been satisfied. The approval of the bond documentation by the Salt Lake City Attorney shall not be unreasonably withheld . IN WITNESS WHEREOF, the parties hereto have entered into this Agreement by their officers thereunto duly authorized as of the 19th day of January, 1982. (CITY SEAL) SALT LAKE CITY, SALT LAKE COUNTY, UTAH ATTEST: By Salt Lake City Recorder TED L. WILSON, Mayor NATIONAL DISTRIBUTION SYSTEMS, INC. a Utah corporation I By Its -13- EXHIBIT A TO MEMORANDUM OF AGREEMENT DESCRIPTION OF PROJECT The Project ( "Project" ) consists of the purchase of approximately 4 .2 acres of land adjacent to the Salt Lake City Foreign Trade Zone and National Distribution Systems, Inc . 's ( "NDS" ) , present facility and the construction thereon of an 80, 000 square foot warehousing facility. Said construction will be an expansion of NDS ' present facility. (Other business not pertinent to the above appears in the minutes. ) Pursuant to motion duly made and carried, the meeting was adjourned . SYDNEY F NNESBECK Council Chairperson (CITY SEAL) Atte 6&L S It ke City Recorder STATE OF UTAH ) . ss. COUNTY OF SALT LAKE ) I, Kathryn Marshall, the duly qualified and acting City Recorder of Salt Lake City, Salt Lake County, Utah, do hereby certify, according to the records of said City in my official possession, that the above and foregoing is a true and correct copy of the minutes of a public meeting of the City Council of Salt Lake City, Utah, held on January 19, 1982, in- -14- sofar as said minutes pertain to the matters therein set out , and attached hereto is a true and correct copy of a resolution adopted at said meeting . IN WITNESS WHEREOF, I have hereunto subscribed my of- ficial signature and impressed hereon the seal of Salt Lake City, Utah, as of this 19th day of January, 1982. Salt La a ity Recorder (CITY SEAL) -15- EXHIBIT A NOTICE OF REGULAR MEETING OF THE CITY COUNCIL OF SALT LAKE CITY, UTAH PUBLIC NOTICE is hereby given that the City Council of Salt Lake City, Utah will hold a regular meeting at its regular place of meeting in Salt Lake City, Utah commencing at 6 :00 p.m. , on Tuesday, the 19th day of January, 1982 . At the meeting a matter concerning the issuance of the industrial development revenue bonds of Salt Lake City will be considered as an item of the agenda of said meeting, as follows: A RESOLUTION OF THE CITY COUNCIL OF SALT LAKE CITY, UTAH, EXPRESSING ITS INTENT TO ISSUE INDUSTRIAL DEVELOPMENT REVENUE BONDS OF SALT LAKE CITY IN AN AGGREGATE PRINCIPAL AMOUNT OF UP TO $2,500, 000 TO FI- NANCE THE PURCHASE OF APPROXIMATELY 4.2 ACRES OF LAND AND THE CONSTRUCTION BY NA- TIONAL DISTRIBUTION SYSTEMS, INC. , A UTAH CORPORATION, OF AN 80 , 000 SQUARE FOOT WARE- HOUSING FACILITY TO BE LOCATED NEXT TO THE SALT LAKE CITY FOREIGN TRADE ZONE AND NA- TIONAL DISTRIBUTION SYSTEMS, INC. IS PRESENT FACILITY, AND AUTHORIZING THE EXECUTION OF A MEMORANDUM OF AGREEMENT BETWEEN NATIONAL DISTRIBUTION SYSTEMS, INC. AND SALT LAKE CITY IN CONNECTION THEREWITH. CITY COUNCIL OF SALT LAKE CITY, SALT LAKE COUNTY, UTAH By Salt ake City Recorder -16-