Title
A RESOLUTION AUTHORIZING A SPECIAL
ECONOMIC DEVELOPMENT GRANT AGREEMENT
BY THE CITY OF FOLEY, ALABAMA
AND
GANESH HOSPITALITY GROUP, INC.
Body
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FOLEY, ALABAMA (THE “COUNCIL”), AS GOVERNING BODY OF THE CITY OF FOLEY, ALABAMA (the “City”), as follows:
ARTICLE 1
Definitions and Representations
Section 1.01 Definitions of Capitalized Terms
As used herein the following terms shall have the following meanings:
Agreement shall mean that certain Economic Development Grant Agreement dated the date of delivery, together with all Attachments and Exhibits thereto, by the City and the Company, as at any time amended, restated or supplemented.
Bond Counsel shall mean Maynard, Cooper & Gale, PC.
City shall mean the City of Foley, Alabama.
Company shall mean Ganesh Hospitality Group, Inc. and its successors and assigns.
Enabling Law shall mean Amendment No. 772 of the Constitution of Alabama of 1901, as amended.
Transaction Documents shall have the meaning assigned in Section 2.01.
Warrant shall have the meaning assigned in Section 1.02(c).
Section 1.02 Representations of the City
The Council, upon evidence duly presented to and considered by it, has found and determined, and does hereby find, determine and declare as follows:
(a) The City and Ganesh Hospitality Group, Inc. (the “Beneficiary”) have prepared that certain Special Economic Development Grant Agreement to be dated the date of delivery (the “Special Economic Development Grant Agreement”), as set forth in Exhibit A hereto, for the purposes referenced therein.
(b) The City has the power and authority under Amendment No. 772 of the Constitution of Alabama of 1901, as amended (“Amendment No. 772”) to authorize, deliver and perform the Special Economic Development Grant Agreement.
(c) Pursuant to, and for the purposes of, Amendment No. 772, it is necessary, desirable, and in the public interest for the City to grant public funds for the economic development of the City and in evidence thereof to issue its Limited Obligation Economic Development Special Fund Warrant (the “Warrant”) pursuant to the terms of the Agreement.
(d) The expenditure of public funds for the purposes specified in the Special Economic Development Grant Agreement will serve a valid and sufficient public purpose, notwithstanding any incidental benefit accruing to any private entity or entities.
(e) (1) On April 25, 2018, the City caused to be published in The Onlooker, which newspaper has the largest circulation in the City, the notice required by Amendment No. 772, a true and correct copy of which notice is attached to this Resolution as Exhibit B.
(2) The information set forth in said notice is true and correct.
(3) Publication of said notice is hereby ratified and confirmed.
(f) The total indebtedness of the City chargeable against the limitation upon indebtedness for the City prescribed by Amendment No. 772(a)(4) (which indebtedness does not include the Warrant) is not more than fifty percent (50%) of said assessed valuation.
ARTICLE 2
Authorization of Execution, Delivery and
Performance of Transaction Documents
Section 2.01. Authorization of Transaction Documents
(a) The City does hereby approve, adopt, authorize, direct, ratify and confirm the terms and provisions of, the representations and warranties of the City set forth in, the obligations and transactions to be undertaken by the City pursuant to, and the execution and delivery by the City of, the following (collectively, the "Transaction Documents"):
(1) The Agreement, in substantially the form presented;
(2) The Warrant;
(3) All agreements, assignments, documents, instruments and notices which may be desirable or necessary to be executed, delivered and performed to effect the purposes of and transactions under the Transaction Documents.
(b) The Transaction Documents are approved in substantially the form and of substantially the content as presented to and considered by the City, with such changes thereto (by addition or deletion) as the officer of the City executing the same shall approve and as shall not increase the amount or duration of the obligations of the City thereunder, which approval shall be conclusively evidenced by the execution of the Transaction Documents by such officer as provided in this Resolution.
(c) The Transaction Documents presented to, considered and adopted by the City shall be filed in the permanent records of the City.
Section 2.02 Authorization of Execution, Delivery and Performance of Transaction Documents
(a) The Mayor of the City is hereby authorized and directed to execute, deliver and effect the performance of, the Transaction Documents for and on behalf of and in the name of the City.
(b) The City Clerk is hereby authorized and directed to attest and seal the Transaction Documents to the extent required thereby.
ARTICLE 3
Limitation upon General Liability
Nothing contained in this Resolution, the Agreement, the Warrant, or in any other instrument shall be construed with respect to the City as incurring a pecuniary liability or charge upon the general credit of the City or against the taxing power of the City, nor shall the breach of any agreement contained in this Resolution, the Agreement, or any other instrument or document executed in connection therewith impose any pecuniary liability upon the City or any charge upon its general credit or against its taxing power.
ARTICLE 4
General Authorization and Ratification
Section 4.01 General Authorization
The Mayor and the City Clerk are hereby authorized and directed (i) to take all such actions, and execute, deliver, file and perform all such documents, agreements, instruments and notices, as may be necessary or desirable to carry out the purposes of this Resolution and effect the purposes of, and transactions to be undertaken pursuant to, the Transaction Documents, and (ii) to execute and deliver to the Company, counsel therefor, and Bond Counsel, such certified proceedings of the City and such closing papers, proofs and statements containing such representations of fact and law as may be necessary or desirable to demonstrate the validity of the Transaction Documents, and the absence of litigation (pending or threatened) with respect to any matter referred to herein.
Section 4.02 Ratification
Any prior action taken by or on behalf of the City or by any officer of the City, or any agreements, documents, petitions or proceedings executed by or on behalf of the City, in connection with the agreements, documents and transactions herein authorized, are hereby ratified and confirmed.
ARTICLE 5
Validation
(a) The City desires, before the issuance of the Warrant and the Agreement, to validate the legality of all proceedings had or taken in connection therewith, the validity of the Project User Fees as the means provided for the payment of the contingent and limited obligations of the City under the Agreement and the Warrant, and the validity of all covenants and provisions contained in this Resolution and the Agreement and the Warrant, by filing a petition against the taxpayers and citizens of the City in the Circuit Court of Baldwin County, Alabama. A complaint to validate the Agreement, Warrant, proceedings, and covenants shall be filed and validation proceedings shall be instituted in the name of the City and the members of the governing body of the City. Maynard, Cooper & Gale, P.C., Birmingham, Alabama, is hereby designated and appointed as the attorneys of the City to file such complaint, institute such proceedings, and to take all steps necessary to complete such validation proceedings in accordance with the provisions of Article 17 of Chapter 6 of Title 6 of the Code of Alabama 1975.
(b) Any actions heretofore taken by such attorneys in connection with the filing of such petition or such validation proceedings are hereby ratified and confirmed.
ARTICLE 6
Provisions of General Application
Section 5.01 Other Proceedings
(a) Any resolution, order, ordinance, or part thereof, in conflict or inconsistent with the provisions of this Resolution is hereby, to the extent of such conflict or inconsistency, repealed.
(b) The provisions of Section 5.01(a) shall not operate or be construed to revive any instrument, ordinance order or resolution, or part thereof, of the City.
Section 5.02. Effect of this Resolution
This Resolution shall take effect immediately.