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A RESOLUTION APPROVING FINANCING DOCUMENTS BY THE CITY OF FOLEY, ALABAMA AND THE CITY OF FOLEY PUBLIC FACILITIES COOPERATIVE DISTRICT
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A RESOLUTION APPROVING FINANCING DOCUMENTS BY THE CITY OF FOLEY, ALABAMA AND THE CITY OF FOLEY PUBLIC FACILITIES COOPERATIVE DISTRICT
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BE IT RESOLVED BY THE CITY COUNCIL OF CITY OF FOLEY, ALABAMA, (the
"City") as follows:
Section 1. The City has heretofore, upon evidence duly presented to and
considered by it, found and determined, and does hereby find, determine and declare that:
(a) Pursuant to Chapter 99B of Title 11 of the Code of Alabama 1975 (the
"Enabling Law"), the City, has authorized the incorporation of The City of Foley's Public
Facilities Cooperative District (the "District"), and the certificate of incorporation of the
District is recorded as Instrument No. 1185056 and amended at Instrument No. 1219765 in the Office of the Judge of Probate of Baldwin County, Alabama.
(b) The City proposes, in conjunction with the conveyance of certain properties to
the District and from the District to the Coastal Alabama Farmers' and Fishermen's Market,
Inc. (the "CAFFM"), an Alabama nonprofit corporation of which the District is the sole
member, to execute and deliver a Funding Agreement or Pledge Agreement by the City (the
"Funding Agreement") with respect to the unconditional obligation of the City, in the event
of nonpayment by the District or the CAFFM, to pay (i) the principal of, premium, if any,
and interest on the $8,000,000 maximum principal amount of loans from Pacesetter CDE X
LLC to the CAFFM (the "Loan") and (ii) the obligations pursuant to a QALIB
Indemnification Agreement, Environmental Indemnity, and a Guaranty of Payment and
Completion to be entered by the District under Chapter 99B of Title 11 of the Code of
Alabama 1975 (the "Enabling Law") in conjunction with Loan (the "Guarantees"), to finance
a portion of the costs of the Project hereinafter referenced, as more particularly described
hereinbelow.
(c) The Funding Agreement will be executed and delivered by the City to the
District. The beneficiary of the Loan is the CAFFM.
(d) Pursuant to Amendment No. 772 to the Constitution of Alabama of 1901, as
amended ("Amendment No. 772"), the City has caused the Notice attached hereto as Exhibit
A (the "Notice") to be published on February 14, 2014 in The Foley Onlooker with respect to
certain actions proposed to be taken, and certain agreements proposed to be made and
delivered, by the City, to provide for the financing of a portion of the costs of the Project and the economic development of the City thereby, and the meeting designated in the Notice has been continued until the May 16, 2014 meeting of the City Council.
(e) There has been prepared for and delivered to the City, and made available for
public inspection, the following agreements, contracts, documents and instruments with
respect to the transactions described in the Notice and the undertakings by the City in
connection therewith (collectively the "Financing Documents"):
i. Notes;
ii. Funding Agreement;
iii. First Amended and Restated Investment Fund Operating Agreement;
iv. Investment Fund Put/Call Agreement;
v. QALICB Indemnification Agreement;
vi. Fund Loan Agreement;
vii. Fund Pledge Agreement;
viii. Fund Promissory Note;
ix. Fund Loan UCC-1;
x. Fund Loan UCC-1 Exhibit A;
xi. Account Pledge and Control Agreement (CFPFCD Reserve Account);
xii. QLICI Guaranty of Payment and Completion;
xiii. Debarment Certificates;
xiv. Credit Agreement;
xv. QLICI Loan A Note;
xvi. QLICI Loan B Note;
xvii. Account Pledge and Control Agreement (Disbursement Account);
xviii. Account Pledge and Control Agreement (Lender Reserve Account);
xix. Assignment Agreement;
xx. Assignment of Contracts;
xxi. Construction Monitoring and Disbursement Agreement (CMDA);
xxii. Joint and Several Hazardous Substance Guaranty and Indemnification
Agreement; and
xxiii. Agreement for Lease, as amended, and as will be assigned to CAFFM.
(f) The expenditure of public funds for the purposes specified in the Notice and
the Financing Documents will serve a valid and sufficient public purpose, notwithstanding
any incidental benefit accruing to any private entity or entities.
(g) It is necessary, desirable, and in the best interests of the taxpayers and citizens
of the City for the City to deliver and perform the agreements and undertakings of the City
set forth in the Financing Documents.
Section 2. The City does hereby approve, ratify and confirm (i) the form and
content of, and the statements set forth in, the Notice and (ii) the publication of the Notice as set forth in Section 1 of this resolution.
Section 3. The City does hereby approve, adopt, authorize, direct, ratify and
confirm the representations, warranties, agreements and covenants of the City set forth in,
and the transactions to be undertaken by the City pursuant to, the Funding Agreement.
Section 4. The Financing Documents are approved in substantially the form and
of substantially the content attached hereto as Exhibit "B" and as presented to and considered by the City Council, with such changes or additions thereto or deletions therefrom as the officer of the City executing those of the Financing Documents to which the City is a party signatory thereto (herein collectively the "City Documents") shall approve, which approval shall be conclusively evidenced by execution of the City Documents by such officer as hereinafter provided.
Section 5. The Financing Documents presented to, considered and adopted by the
City Council shall be filed in the permanent records of the City.
Section 6.
(a) The Mayor of the City is hereby authorized and directed to execute,
acknowledge and deliver the City Documents for and on behalf of and in the name of the
City. The City Clerk and Assistant City Clerk of the City are each hereby authorized and
directed to attest the same.
(b) For purposes of the Financing Documents, the Finance Director is authorized
and directed to act as an Authorized City Representative under and as defined therein.
Section 7. The officers of the City, or any one or more of them, are hereby
authorized and directed to do and perform or cause to be done or performed in the name and
on behalf of the City such other acts, and execute, deliver, file and record such other
instruments, documents, certificates, notifications and related documents, all as shall be
required by law or necessary or desirable to carry out the provisions and purposes of this
Resolution and the Financing Agreement Documents.
Section 8. Any prior actions taken or agreements made or documents executed by
any officers of the City in connection with the Financing Documents and the transactions
therein authorized and approved are hereby ratified and confirmed.
Section 9.
(a) All ordinances, resolutions, orders, or parts thereof in conflict or inconsistent
with any provision herein hereby are, to the extent of such conflict or inconsistency, repealed.
(b) This resolution shall take effect immediately.