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HomeMy WebLinkAbout676*VW vow ORDINANCE NO. AN ORDINANCE AUTHORIZING THE EXECUTION OF AN AGREEMENT BETWEEN THE CITY OF BATESVILLE, ARKANSAS AND INDEPENDENCE COUNTY, ARKANSAS IN THE FORM APPROVED BY THIS ORDINANCE CONCERN- ING THE INDUSTRIAL PROJECT DESCRIBED IN SAID AGREEMENT; PRESCRIBING OTHER MATTERS RELATING THERETO; AND DECLARING AN EMERGENCY. BE IT ORDAINED by the City Council of the City of Batesville, Arkansas: Section 1. That there be and there is hereby authorized the execution of an agreement by and between the City of Batesville, Arkansas and Independence County, Arkansas in the form and with the contents hereinafter set forth and the Mayor be, and he is hereby, authorized and directed to execute, acknowledge and deliver said agreement for and on behalf of the City of Batesville, the form and contents of said agreement, made a part hereof, are as follows: A G R E E M E N T THIS AGREEMENT made and entered into this day of , 1960 by and between the CITY OF BATESVILLE, ARKANSAS (herein called "City") and INDEPENDENCE COUNTY, ARKANSAS (herein called "County"), WITRMSSE'IT.: WHEREAS, the City and the County have cooperated in secur- ing an industry which will substantially benefit both parties hereto and the citizens of both; and WHEREAS, the industrial project involved consists of the acquisition of lands, the construction on said lands of factory build- ings and manufacturing facilities, the purchase and installation of necessary machinery and equipment, and all other items included in the term "project costs" as defined in Section 108 of the Lease Agreement, hereinafter described (herein called the "project"); and WHEREAS, arrangements have been made for the leasing of the project to Batesville Rubber Company, an Arkansas corporation (herein called "Batesville Rubber") and a wholly owned subsidiary of Seiber- ling Rubber Company, a Delaware corporation (herein called "Seiber- ling"); and Seiberling will unconditionally guarantee the performance by Batesville Rubber of all its covenants and obligations under the said lease; and WHEREAS, in order to finance the cost of the project (except for the portion to be furnished by Batesville Rubber), necessary ex- penses incidental thereto, the cost of issuing bonds, hereinafter re- ferred to, and the payment of debt service during construction, the City submitted to the electors the question of issuing Revenue bonds under Act No. 9 of the First Extraordinary Session of the Sixty -Second General Assembly of the State of Arkansas, approved January 21, 1960 (herein called "Act No. 911), in an amount not to exceed $1,000,000, c Page 2 and the County submitted to the electors the question of issuing General Obligation Bonds under Amendment No. 49 to the Constitution of the State of Arkansas (herein called "Amendment No. 49") in an amount not to exceed $500,000; and WHEREAS, the electors of the City and the electors of the County approved the issuance of said bonds in special elections held March 15, 1960; and WHEREAS, the purpose of this Agreement is to state the re- spective interests, rights, responsibilities and obligations of these two parties in and pertaining to the project, and the manner in which their respective contributions to the project will be made: NOW, THEREFORE, in consideration of the mutual covenants and undertakings of the parties herein set forth and of the benefits to be derived from the project and other valuable considerations, re- ceipt of which is acknowledged by each party hereto, the City and the County agree as follows: 1. It has been determined that the estimated cost of the project, necessary expenses incidental thereto, the cost of the issu- ance of the bonds and the payment of debt service during construction, to be financed out of the proceeds of the Act No. 9 Revenue Bonds of the City and the Amendment No. 49 Bonds of the County is $1,400,000 and that $900,000 Act No. 9 Revenue Bonds should be sold and $500,000 Amendment No. 49 Bonds should be sold. In accordance therewith, the City and the County agree to proceed with the sale and issuance of said bonds and to make the proceeds thereof available for the con- struction of the project and the other costs referred to above. It is understood and agreed that the City's Act No. 9 Revenue Bonds will be issued under and secured by an ordinance of the City Council and by a Trust Indenture authorized by said ordinance and that the County's Amendment No, 49 Bonds will be issued under and secured by an order of Page 3 the County Court. The said ordinance will be of record in the office of the City Clerk, the Trust Indenture will be of record in the office of the Circvft Clerk and Ex Officio Recorder of the County, and the County Court oTder will be of record in the office of the County Clerk of the Count;, and all are made a part hereof by reference. The City agrees to promptly perform all obligations and agreements on its part contained in said ordinance and Trust Indenture in accordance with their tenor and effect and the County agrees to promptly perform all obligations and agreements on its part contained in said County Court order in accordance with their tenor and effect. 2. The City has agreed with representatives of Latesville Rubber upon the terms and conditions of the Lease Agreement wherein the City will be Lessor and Batesville Rubber will be Lessee (herein called "Lease Agreement"). The Lease Agreement describes the lands being leased, describes the improvements to be constructed and speci- fies the details of construction, sets forth the terms of the lease, sets forth the rental obligations of the Lessee, specifies the obli- gations of the Lessee with reference to the leased premises and matters pertaining thereto, and otherwise sets forth the rights, duties and obligations of the Lessor and Lessee. The City has also agreed with representatives of Batesville Rubber upon the terms and conditions of a Renewal Lease Agreement (herein called "Renewal Lease Agreement") and has agreed with Seiberling upon the terms of the unconditional guarantee of Seiberling. When executed all of said instruments will be recorded in the office of the Circuit Clerk and Ex Officio Recorder of the County and all are made a part hereof by reference. The County states that it has knowledge of the terms of these instruments. 3. It is agreed that the City shall acquire in its name the lands being leased to Batesville Rubber and shall execute the Lease Agreement and the Renewal Lease Agreement as Lessor. It is Page 4 understood that the City, pursuant to the terms pertaining thereto in the Lease Agreement, will proceed with the construction of the build- ing and manufacturing facilities on said land and the purchase and installation of certain machinery and equipment therein, all of which is defined in the Lease Agreement as "leased premises" and that term will be so used here. It is understood that, with respect to the City and the County, the City in so proceeding, shall be acting as Trustee for the City and the County in accordance with their respect- ive interests in the leased premises, which interests are hereby de- clared to be as follows: The County shall own an undivided sixty per cent (60%) interest in the leased premises and the City shall own an undivided forty per cent (40%) in the leased premises. It is also understood and agreed that all rights and interests declared in this Agreement to exist in the County shall be subject and subordinate to the rights and interests of Batesville Rubber and Seiberling in and to the leased premises under and by virtue of the Lease Agreement and the Renewal Lease Agreement, including, without limitation, the Lessee's option to purchase. The City shall continue to hold the legal title to the leased premises in the City's name as long as the Lease Agreement and the Renewal Lease Agreement are in force and in effect, but immediately upon their termination, by virtue of the expiration of their term or otherwise, unless the Lessee shall have purchased the leased premises by the exercise of its option pertain- ing thereto set forth in the Lease Agreement and in the Renewal Lease Agreement, the City shall convey to the County by appropriate con- veyance instrument or instruments an undivided 9J_xty per cent (60%) interest in the leased premises and the City and the County will thereafter own the leased premises as tenants in common with the County owning an undivided sixty per cent (60%) interest and the City owning an undivided forty per cent (40%) interest. r 0 Page S Also, the County agrees to enter into a Subordination Agree- ment with Batesville Rubber and Seiberling pursuant to which the County will s:bord nate its interests declared herein to the interests of Batesville Rubber and Seiberling and pursuant to which it author- izes the City to act with reference to the said interests of the County and affirmatively so represents to Batesville Rubber and Seiber- ling. To that end, Batesville Rubber and Seiberling are made third party beneficiaries hereunder. 4. As provided in Section 204 of the Lease Agreement, after all Act No. 9 Revenue Bonds and Amendment No. 49 Bonds are fully paid and discharged, or provisions made therefor, all rental payments under the Lease Agreement shall be paid by the Lessee into a special trustee account for the City and the County. The parties agree to establish said special trustee account in First National Bank, Batesville, Arkansas. The said First National Bank shall be instructed to continuously invest and reinvest all money in said special trustee account in direct or fully guaranteed obligations of the United States of America. If any funds are not so invested, or in any event, if deposits are made of these funds, all such de- posits will be made in these banking institutions, to -wit: First National Bank, Batesville, Arkansas, The Citizens Bank, Batesville, Arkansas and Bank of Newark, Newark, Arkansas, all being in the County, or their successors in the County, or, if all do not at any particular time exist in present or successor form, then to those which do exist in ratio to their total deposits. There shall also be deposited in said special trustee account all other moneys of whatever nature which, under the terms of the Lease Agreement and said Renewal Lease Agreement, are to be deposited therein. It is agreed that the moneys in said trustee account shall be used for the securing, financing and developing of industry in the City and the Page 6 County. The said account shall be so established that withdrawals therefrom shall be made only for said purpose, as una,iiimously deter- mined by the City, the County, and the Batesville Chamber of Commerce and that all withdrawals must be jointly made by a duly designated representative of each. Said special trustee account shall be main- tained throughout the Lease Agreement and the Renewal Lease Agree- ment; provided, however, any unexpended money in said account on July 1,1981 may, unless the parties otherwise agree at that time, be distributed to the parties in accordance with their interests therein (60f to the County and 40% to the City) for use by each for any lawful purposes; and such a distribution may be made each five (5) years thereafter. It is agreed that the County shall own sixty per cent (601) of said special trustee account and that the City shall own forty per cent (40jo) thereof. If any disputes arise con- cerning the moneys in the said special trustee account which cannot be resolved by the City and the County, the same shall be submitted to the Chancery Court of the County for decision. In the absence of fraud or bad faith the Trustee shall not be liable for any losses which might occur in making investments. Interest accruing on such investments and profits realized from such investments shall be deposited to the trustee account. 5. The City hereby agrees that it will submit to the County all matters arising under the Lease Agreement and the Renewal Lease Agreement and the Trust Indenture so that the County will be fully informed and have an opportunity to approve any action taken or to be taken by the City, it being expressly understood, however, that Batesville Rubber and Seiberling shall in no wise be bound by this agreement of the City, but on the other hand shall be entitled to look solely to and deal exclusively with the City. In this respect, the parties agree that all expenses necessarily incurred in the taking of any such action Page 7 shall be borne sixty per cent (607.) by the County and forty per cent (40%) by the City. If any such expense should be necessary the par- ties agree that if funds are available in the special trustee account, referred to in paragraph "40e above, such expense may be paid out of the special trustee account. In this connection, the parties intend that all responsibility, liability, costs and expenses shall be divided sixty per cent (607.) to the County and forty per cent (40%) to the City. if either party refuse: to C,.ct, however, the other may proceed. 6. it is agreed that the City ; 1, 11 make and execute, t:r-Lough its duly designated and appointed repne5entatives and agents, a.-; provided in the Batesville Rubber Company lease, all contracts and purchase orders in connection with and pertaining to the project. The County shall, and does hereby, designate ane appoint the City as _I:s exclusive attorney with full authority t:) £ ;e, through said representatives and agents, for and on behalf of the County, insofar as the County's interest in the project is concerned, with respect "-.o all rr-Ltters pertaining to the project, including, without limita- t Lt,) 'x, tLc -._-.alking and executing of said contracts and purchase orders, except that requisitions for disbursements from construction funds will be approved as set forth in Section 13 in County Court order authorising issuance of bonds which Section is hereby made a part hereof by reference as though set out herein word for word. 7. This Agreement shall inure to the benefit of and be binding upon the successors and assigns of the parties hereto. IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals the date first hereinabove written. CITY OF BATESVILLE, ARKANSAS By INDEPENDENCE COUNTY, ARIUNSAS By ACKNOWLEDGMENT STATE OF ARKANSAS ) COUNTY OF INDEPENDENCE ) On this , day of , 1960, before me, a Notary Public duly commissioned, qualified and acting, within and for the State and County aforesaid, appeared in person the within named Roy Row, Mayor of the City of Batesville, Arkansas, to me per- scnally well known, who stated that he was duly authorized in his capacity as Mayor to execute the foregoing instrument for and in the name and behalf of said City, and further stated and acknowledged that he had so signed, executed and delivered said foregoing instru- ment for the consideration, uses and purposes therein mentioned and set forth. IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this — day of , 1960. Notary Public My commission expires: ACKNOWLEDGMENT STATE OF ARKANSAS ) COUNTY OF INDEPENDENCE ) On this. day of , 1960, before me, a Notary Public duly commissioned, qualified and acting, within and for the State and County aforesaid, appeared in person the within named Maurice Snapp, County Judge for the County of Independence, Arkansas, to me personally well known, who stated that he was duly uthorized in h:.s capacity as County Judge to execute the foregoing instrument for and in the name and behalf of said County, and further stated and acknowledged that he had so signed, executed and delivered said foregoing instrument for the consideration, uses and purposes therein mentioned and set forth. IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal this day of _ ,,,.,_, 1960. Notary Public My, commission expires: 0 Section 2. That the Mayor be, and he is hereby, authorized and directed for and on behalf of the City of Batesville to do all things, execute all instruments and otherwise take all action necessary to the full realization of the City of Batesville's rights under said agreement and to discharge all of the City of Ratesville's obligations under said agreement, including without limitation, the execution of a "Declaration of TrustP° setting forth the interests of the respective parties. cE 4 s� dor. 3. That tine provi� ions c f this ordinance are hereby declared to be separable and if section, phrase or provision shall fo-: ary reason be declared to be invalid such declaration shall not affect the validity of the remainder of txe sections, phrases or provisions. Section 4. That all ordinances and resolutions and r is thereof in conflict herewith are hereby repealed to the extent of such conflict. Section 5. That there is hereby found and declared to Sac an immediate need for securing and developing industry near ,.� City of Batesville, Arkansas in order to provide employment, =alleviate unemployment and otherwise benefit the public health, safety and welfare and the taking of the action authorized by this ordinance is irmediately necessary in connection with the securing and developing of a substantial industry. It is, therefore, declared that an emergency exists and this ordinance being necessary for the immediate preservation of the public health, safety and welfare shall be in force and take effect immediately upon and after its passage. PASSED <�''Y. % , 1960. APPROVED: Mayor ATTES City Cle .. ' low C E R T I F I C A T E The undersigned, City Clerk of Batesville, Arkansas, hereby certifies that the foregoing pages numbered 1 to inclusive, are a true and compared copy of an ordinance passed at a J .L� c �_.,_..u_� ( session of the City Council of Batesville, Arkansas, held at the regular meeting place of the Council in said City at o 'clock _...'' .m. , on theday of 1960, and that said ordinance is of record in Ordinance Record Book <_ page now in my possession. Given under mf hand and seal this 1/;/ day of 196o, 0 -r I. ty C 1 e r k (SEAL)