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HomeMy WebLinkAboutRESOLUTION - 69-95 - 11/14/1995 - MEMORANDUM OF AGREEMENT RESOLUTION NO. 69-95 A RESOLUTION AUTHORIZING THE EXECUTION AND DELIVERY OF A MEMORANDUM OF AGREEMENT BETWEEN THE VILLAGE OF ELK GROVE VILLAGE, ILLINOIS AND RAINBOW FISH HOUSE, INC. PROVIDING FOR THE ISSUANCE BY SAID VILLAGE OF REVENUE BONDS WHEREAS, the Village of Elk Grove Village (hereinafter called the "Issuer" ) recognizes that it is necessary for the general wel- fare and economy of the public that the Issuer endeavor to provide permanent opportunities for employment; and WHEREAS, the Issuer is a Home Rule Unit of Government and is authorized by Section 6 of Article VII of the Constitution of the State of Illinois (the "Constitution" ) and Ordinance No. 1486 , as amended and supplemented (the "Enabling Ordinance" ) to acquire, construct, improve and finance economic development projects, to lease, sell or finance the same to or for any person, and to pro- vide for the issuance of revenue bonds in conjunction therewith; and WHEREAS, the Issuer, in order to implement the public pur- poses described above and in futherance thereof to induce the Rain- bow Fish House, Inc. , an Illinois corporation (hereinafter called the "Owner" ) , to acquire, construct and improve a manufacturing facility (hereinafter called the "Project" ) within the corporate limits of the Issuer, has evidenced its agreement to issue its revenue bonds under and pursuant to the provisions of the Consti- tution and the Enabling Ordinance and to apply the proceeds there- from to the payment of the costs of acquiring, constructing and improving a building for the Project and to lease, sell or finance the Project to or for the Owner, subject to Issuer having suffi- cient volume capacity in and of itself or by assignment of such additional volume capacity as may be necessary; and WHEREAS, the Owner, after considering a number of possible locations within and outside the Issuer and in reliance upon the agreement of the Issuer to finance the acquisition, construction and improvement of a building for the Project through the issu- ance of revenue bonds , has determined to locate the Project within the corporate limits of the Issuer; and WHEREAS, it is now deemed advisable to authorize the execu- tion and delivery by the Issuer of a Memorandum of Agreement ex- pressing formally and in writing the understanding heretofore in- formally agreed upon by the Issuer and the Owner. NOW, THEREFORE, BE IT RESOLVED by the President and Board of Trustees of the Village of Elk Grove Village, Counties of Cook and DuPage, Illinois as follows : Section 1: The President is hereby authorized and directed to execute a Memorandum of Agreement by and between the Issuer and the Owner and the Village Clerk is hereby authorized and di- rected to affix the seal of the Issuer thereto and to attest to same; and said President and Village Clerk are hereby authorized -2- and directed to cause said Memorandum of Agreement to be delivered to, accepted and executed by the Owner, said Memorandum of Agree- ment, which is hereby approved and incorporated by reference and made a part of this authorizing Resolution, to be in substantially the form attached hereto as Exhibit A. Section 2: This Resolution shall be in full force and effect from and after its passage and approval according to law. VOTE: AYES : 6 NAYS: 0 ABSENT: 0 PASSED this 14th day of November 1995 . APPROVED this 14th day of November 1995. Dennis J. Gallitano VILLAGE PRESIDENT ATTEST: Patricia S. Smith VILLAGE CLERK -3- EXHIBIT A MEMORANDUM OF AGREEMENT THIS MEMORANDUM OF AGREEMENT, made and entered into this 14th day of November , 1995 by and between the VILLAGE OF ELK GROVE VILLAGE, a home rule municipality in Cook and DuPage Counties, Illinois (hereinafter called the "Issuer" ) and RAINBOW FISH HOUSE, INC. (hereinafter called the "Owner" ) . W I T N E S S E T H WHEREAS, the Issuer is authorized under the Constitution of the State of Illinois (the "Constitution" ) and Ordinance No. 1486, as amended and supplemented (the "Enabling Ordinance" ) to acquire, construct and finance economic development projects , to lease, sell or finance the same to or for any person, and to provide for the issuance of revenue bonds in conjunction therewith; and WHEREAS, the Issuer in order to implement certain public pur- poses and in furtherance thereof to induce the Owner to locate a manufacturing facility of approximately 28 , 000 square feet of floor area, including all necessary personal property and fixtures (hereinafter called the "Project" ) , within the corporate limits of the Issuer, has indicated its willingness to issue its revenue bonds under and pursuant to the provisions of the Constitution and the Enabling Ordinance and to apply the proceeds therefrom to the payment of all or a portion of the cost of the Project, subject to the Issuer having sufficient bond volume capacity to effectuate same; and WHEREAS, the Owner, after considering a number of possible locations within and outside the State of Illinois , and in reli- ance upon the agreement of the Issuer to finance the cost of the Project through the issuance of its revenue bonds , has determined to locate the Project within the corporate limits of the Issuer; and WHEREAS, the Owner will be the user of the Project; and WHEREAS, it is now deemed advisable to express formally and in writing the understanding heretofore informally discussed by the parties hereto. NOW, THEREFORE, in consideration of the premises and of the mutual undertakings herein expressed, the parties hereto recognize and agree as follows : A. The Issuer represents and agrees : 1. That the Issuer is authorized by the provisions of the Constitution and the Enabling Ordinance to finance the acqui- sition, construction and improvement of a building for the Pro- ject, and, for the purposes of paying all or a portion of the cost of such acquisition, construction and improvement, including ex- penses incidental thereto, is authorized as aforesaid to issue -2- its revenue bonds payable from the revenues and income derived by the Issuer from the Project. 2 . That the Issuer agrees, subject in all respects to the provisions and requirements of the Constitution and the En- abling Ordinance and to a sale of its revenue bonds on terms sa- tisfactory to the Owner, to use its best efforts to authorize, issue, sell and deliver its revenue bonds, to be used in one or more series in an aggregate principal amount of not more than $3, 000, 000 . 00 (the exact principal amount to be fixed by ordinance of the Issuer at a later date and agreed to by the Owner, but not to exceed the cost of acquiring, constructing and improving the Project and expenses incidental thereto as estimated at the time of issuance of said revenue bonds ) and apply the proceeds there- from to the payment of the cost of acquiring, constructing and improving the Project; provided, however, that prior to the issu- ance and delivery of such revenue bonds, there shall have been entered into between the Owner and the Issuer appropriate contracts whereby the Owner will agree to enter into a financing agreement with the Issuer upon terms which will comply with applicable laws and ordinances and which will provide for the payment by the Owner of amounts which will be sufficient to enable the Issuer to pay the principal of and premium, if any, and interest on such revenue bonds . -3- 3 . That the financing of the acquisition, construction and improvement of a building for the Project by the Issuer is a proper public corporate purpose and that the financing thereof for the Owner is necessary to implement the public purposes of the Issuer. B. The Owner represents and agrees: 1 . That the Project will result in increased employ- ment and preserve existing employment in the Issuer. 2 . That if the proposed revenue bonds ( including the rate of interest thereon) of the Issuer are satisfactory to the Owner, it will enter into financing agreements with the Issuer upon terms which will be sufficient to pay the cost of acquiring, constructing and improving a building for the Project as evidenced by such revenue bonds to be issued for the account of the Project, and will enter into such appropriate contracts with the Issuer with regard to the foregoing prior to the issuance and delivery of any such revenue bonds by the Issuer. 3 . That it is the Owner ' s present intention to cause the Project to be used or occupied during the term of any such financing agreement primarily for use as a manufacturing facility. 4 . That any such financing agreement will provide that during the time such financing agreement is in effect, before the Project may be used or occupied primarily for any purpose other -4- than as the Owner' s manufacturing facility or that of certain af- filiated organizations, the Owner will obtain the opinion of bond counsel to the effect that the proposed use of the Project will not affect the tax exempt status of the revenue bonds to be issued by the Issuer. C. It is further recognized and agreed between the parties hereto as follows : 1. That the revenue bonds to be issued by the Issuer shall be limited obligations of the Issuer and shall never consti- tute an indebtedness of the Issuer or a loan of the credit thereof within the meaning of any constitutional or statutory provision, and such fact shall be plainly stated on the face of each of said bonds . No holder of any of said bonds shall ever have the right to compel any exercise of the taxing power of the Issuer to pay said bonds or the interest thereon. The principal of and premium, if any, and interest on such revenue bonds to be issued to finance the cost of the Project shall be secured by a pledge, either to the purchasers and holders of said bonds or to a trustee acting under an indenture of trust for the benefit of the holders of said bonds, of the revenues and income derived by the Issuer from the Project and may be further secured by a mortgage on the Project, and shall be additionally secured by a pledge to said trustee or purchasers and holders of said bonds, of the aforesaid financing -5- agreement between the Issuer and the Owner. Title to the Project may be in a partnership, corporation, trust or other entity desig- nated by the Owner and acceptable to the Issuer. 2 . That a primary inducement to the Owner in locating the Project within the Issuer is the agreement of the Issuer to finance the acquisition, construction and improvement of a build- ing for the Project through the issuance of its revenue bonds . 3 . That it is desirable that the Owner rather than the Issuer arrange for the acquisition, construction and improvement of a building for the Project in order to insure that the Project will conform to the requirements of the Owner. 4 . That the Agreement shall inure to the benefit of the parties hereto and their respective successors and assigns ; provided, however, that in the event the bonds are not issued or sold as contemplated herein, there shall be no liability on the part of the Issuer or of the Owner or of any of their officers or employees for such non-issuance or non-delivery. 5. That the Issuer shall, from the proceeds of such revenue bond issue, be paid all costs incidental to the issuance of said bonds including the Issuer' s attorney' s fees, printing fees, the Issuer' s Application Fee, Financial Consultants Review charge and Issuance Fee and all other similar expenses ; and that -6- in no event shall the Issuer be liable for any costs or expenses arising from the issuance of said bonds ; provided that if said bonds are not sold, the Owner shall pay the Issuer all reasonable out-of-pocket expenses, including attorney' s fees, as provided in the Enabling Ordinance. 6 . That this Agreement may be executed in separate counterparts, all of which shall be deemed a single instrument. 7 . That this Agreement shall terminate and the Issuer shall have no further obligations thereunder in the event said bonds are not issued by December 31, 1996 or if sufficient volume capacity is not assigned to the Village of Elk Grove Village so as to finance the bond amount requested herein. IN WITNESS WHEREOF, the VILLAGE OF ELK GROVE VILLAGE, acting by and through its corporate authorities, has caused its corporate name to be hereunto subscribed by Dennis J. Gallitano, its duly authorized President, and attested under its official seal by Patricia S. Smith, its Village Clerk, and RAINBOW FISH HOUSE, INC. has caused its corporate name to be hereunto subscribed by a duly authorized officer and attested under its corporate seal by its Secretary or Assistant Secretary, all being done as of the year and date first above written. VILLAGE OF ELK GROVE VILLAGE RAINBOW FISH HOUSE, INC. By: Dennis J. Gallitano By: Village President -7-