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84-RRRRESOLUTION NO. ~:~.~-,~,~/~ A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BOYNTON BEACH, FLORIDA, APPROVING AND AUTHORIZING THE EXECUTION OF A MEMORANDUM OF AGRRR.~ BETWEEN THE CITY AND POLY PLASTIC PACKAGING COMPANY, INC. AND PROVIDING AN EFFECTIVE DATE. NOW, THEREFORE, BE AND IT IS HEREBY RESOLVED BY THE CITY COUNCIL OF THE CITY OF BOYNTON BEACH, FLORIDA: Section 1. The proposed F~morandum of Agreement between Boynton Beach, Florida and Poly Plastic Packaging Company, Inc. in the form of that appended as Exhibit ,A" hereto is hereby approved, and the Mayor or Vice Mayor and the City Clerk 'or any Deputy City Clerk of the City of Boynton Beach are hereby authorized, for and on behalf of the City, to execute and deliver five counterparts of such Msmorandum of Agreement in substantially the form of that presented to this meeting, with such iranaterial changes, additions and onissions as .the officials executing said ~V~morandum of Agreement on behalf of the City shall deem to be appropriate, their execu- tion constituting conclusive evidence of their approval of such changes. passage. Section 2. This resolution shall take effect immediately upon its PASSED and ADOPTED this ,ff-~ day of ~~//~F , 1984. CITY OF BOYNTON BEACH, FLORIDA Mayor Vice Mayor Cit~ Clerk q~-~*~/ (Corporate Seal Council_Member ~ /n ~ / COfncil Membe~ .~' ' MEMORANDUM OF AGREEMENT This MEMORANDUM OF AGREEMENT is between the City of Boynton Beach, Florida, a political subdivision of the State of Florida (the "City"), and Poly Plastic Packaging Co., Inc., a New York corporation (the "Company'~) . i. Preliminary Statement. Among the matters of mutual inducement which have resulted in the execution of this Memorandum of Agreement are the following: (a) The City is a p6iitical subdivision of the State of Florida and is a political subdivision of a state within the meaning of Section 103(a) (1) of the Internal Revenue Code of 1954, as amended (the "Code"). (b) The Company propqses the acquisition of 1.1 acres of land with existing improvements including a free standing building containing 8,000 square feet of industrial space located on Industrial Avenue within the City of Boynton Beach, Palm Beach County, Florida. In additional to the foregoing, the application contemplates the financing of certain equipment required for the operation of the facilty in accordance with the description set forth in the Company's application (the site, building and equipment herein being called the "Project"). (c) The Florida Industrial Development Financing Act, being Part II, Chapter 159 of the Florida Statutes, as amended (the "Act"), provides that a municipality shall ha~e full power and authority to issue revenue bonds'for the purpose of providing funds to pay-all or any part of the cost of any capital project comprising an industrial or manufacturing plant or a warehousing or distribution fac$1ity, including one or more buildings and other structures, whether or not on the same site or sites. (d) The Company has determined that the Project will cost in excess of $875,000.00. (e) The Company anticipates that the Project will create approximately 10 to.20 new jobs within the City upon. commencement of operation end-up to 30 new jobs upon reaching full production. (f) The Company has requested the City to enter into~ this Memorandum of Agreement for the purpose of declarin~ the City's intention to pr6vide financing to pay all or a portion of the cost of the Project. (g) The Company has represented that neither it nor any affiliate has financed the Project, that neither the acquisition, construction nor installation (collectively, the "Acquisition'') of the Project has commenced and that it is essential that the Company commence the Acquisition of the Project immediately° (h) This Memorandum of Agreement is entered into to induce the Company to proceed with the necessary plans for the Project and to incur costs in connection with various phases of the Project and to assure the Company, prior to the application) the issuance of bonds of the City, that the City will, in accordance with and subject to the provisions of the Act and this Memorandum of Agreement,~ issue its industrial development revenue bonds under the Act to cover costs so incurred by the Company in connection with the Project, including such costs incurred by the Company prior to the issuance of such bonds, Provided such costs qualify as the "cost" of a "project"'within the meaning of such terms under the Act. (i) The Company proposes that the City agree to issue its industrial development revenue bonds under the Act in an aggregate principal amount not to exceed $875,000.00 to pay all or a portion of the cost of the Project, such bonds to be secured by the obligations of Project, such bonds to be secured by the obligations of the Company under a financin~ agreement to make payments ~sufficient to pay debt service thereon, and by virtue of the provisions of Section i03(b) (6) (A) or (D) of the Code, as now existing or hereafter amended, to be exempt from Federal income taxation. (j) The City has determined that the Acquisition of the Project by the Company and the financing 'of all or a portion of the cost of the Project by the City as described herein will be in furtherance of the purpose of the Act in that it will induce the Company to 16cate a facility for the application of printing and film conversion (as described in in the City and will alleviate unemployment in-the City and will alleviate unemployment in the Cit~ and will foster ~he industrial and business deve!opme~t of the City. 2. Undertakings on the part of the City. --In accor- dance with and subject to the limitations of the Act and the conditi6ns hereinabove and hereinafter stated, the City agrees as~ollows: (a) That it will authorize the issuance and sale of one-or more issues of its industrial develop- ment revenue bonds and notes in anticipation of the issuance thereof, pursuant to the terms of the Act as then in force, in an aggregate principal amount of $875,000. (such bonds and.notes being herein called collectively the "Bonds") for the purpose of paying al! or a portion of the "Cost" (as defined in the Act) of the Project. (b) That it will, at the proper time, and sub- ject ~ in all respects to the prior advice, consent and approva~ of the Company, adopt such proceedings and authorize the execution of such documents as may be necessary and advisable for the authorization, sale and issuance of the Bonds and the Acquisition of the Project, all as shall be authorized by the Act and in conformance with Florida law and mutually satisfactory to the City and the Company. The Bonds shall not be deemed to constitute a debt, liability.or obligation of the City or of the State of Florida or of any political subdivision thereof, or a pledge of the faith and credit of the City or of the State of Florida or of any such political subdivision,'but Shall be payable solely from the revenues provided thereof. The Bonds issued shall be in such aggregate principal amount, shall bear interest at such rate or rates, shall be payable at such times and places, shall be in such forms and denominations, shall be sold in suck manner at such price and at such time or times, shall have such provisions for redemption, shall be executed, and shall be secured as hereafter may be'requested by the Company and fixed by the'City, all on terms authorized by the Act and mutually satisfactory to the City and the Company. (c) The foregoing undertakings on the part of the City shall be expressly subject to availability of bond financing in accordance with Federal and State legislation currently in effect. 3. Undertakings on the part of the Company. Subject to the conditions hereinabove and hereinafter stated, the Owner agrees as follows: (a) That the Company will arrange for, manage and carry out, or cause to be arrange for, managed and carried out, the Acquisition of the Project for and on behalf of the City, as herein provided. (b) That the Company will cooperate with the City in making arrangements for the sale and issu- ance of the Bonds in an aggregate principal amount Of $875,~O00. ~o an institutional investor or investors, for such investor's or investors' own portfolios, 'and that to the extent that the proceeds derived fr'om th'e sale of the Bonds are not sufficient to complete the Project, the Company will supply all additional funds which .are necessary for the completion of the Project. (c) That contemporaneously with the delivery of the Bonds, ~he Company will enter into a financing agreement and such indentures, guaranties and related agreements' as shall be necessary or appropriate so that the company-will be obligated, to operate, maintain and repair the Project at its own expense, to pay for the account of the City s~ms sufficient in the aggregate to pay all of the principal of and redemption premium, if any, and.interest on t~e Bonds when and as.the same shall become due and payable, to report annually to the City Finance Director the annual bond indebtedness outstanding and any other information necessary to comply with Florida Statutes, Section 218.32, and to pay all other costs incurred by the City in connection. with the financing, Acquisition and operation of the Project, except as may be paid out of Bond proceeds or otherwise, and complying in all respects with the Act. 6~ (d) That the Company will' take such further action and adopt such proceedings as may be required to imple- ' meht their undertakings hereunder. 4. General Provisions. (a) Since it is anticipated that the Acquisition of the Project may commence prior to the sale of the Bonds'and since the Company knows and~acknowledges that the City will have no funds available to,meet the costs of the Project other than those derived from the sale of the Bonds, the Company agrees that it wile advance, or it will cause to be advanced, from time to time all' funds necessary ?for the Acquisition of the Project, and such funds when so advanced shall be deemed funds advanced on behalf of the City; provided., however, that the City shall not by virtue of such advances or otherwise through this Memorandum of Agreement acquire any property interest in the Project whatsoever. To the extent that the net proceeds derived from the sale of the Bonds are sufficient for such purpose, the City agrees Go repay from such net proceeds to the Company all funds so advanced promptly after the Sale of the Bonds' (b) The City and the Company agree that the Company, as an independent contractor of the City, shall provide, or cause to be provided, all services incident to the Acquisition of the Project, including, without limitation, the p~eparation of plans, specifications and contract documents, the'award of contracts, the inspection and supervision of work performed, the employment of engineers, architects, builders and other contractors, and the provision of money to pay the cost thereof pending reimbursement by the City from such bond proceeds, and the City shall have no respon- sibility for the p~ovision of any such services. lc) Ail commitments of the City and of the Company pursuant to this-~emorandum of Agreement (except those of the rComp~ny set forth in paragraphs (d), (e), (g), (h) and (i) of this Section) are subject to the condition that on or before 18 months from the date hereof (or such later date as shall be mutually satis- factory to the City and the Company), the City and the Company shall have agreed to mutually acceptable terms for the Bonds and the sale and delivery thereof and mutually acceptable terms and conditions for the financing agreement and other agreements referred to in Section 3(c) and the proceedings referred40 in Sections 2 and 3 hereof. If such condition is not satisfied within such time or any such extension thereof, this Memorandum of Agreement shall terminate. (d) The Company agrees that, whether or not the Bonds shall be issued, it will pay, ~or cause to be paid, all costs and expenses incurred by it, any fees and expenses of the Company's financial advisor, if any,. any ..fees and expenses of the Company's counsel, the reasonable fees and expenses of the City's financial advisor, if any, and the reasonable fees and expenses of Bond Counsel and the City Attorney (collectively, "Financing C~sts"). The Financing Costs shall be payable by the Company in addition to the $~,000 application fee heretofore paid by the Company to the City (the "Initial Fee"), and in addition to the Validation Fee, if any, described below. (e) The Company-also agrees that, if a proceeding~ for the validation of the Bonds is to be commenced under Chapter 75 of the Flbrida Statutes, as amended, it will pay to the City, prior to the filing of the City's Complaint for Validate'on of the Bonds, an' additional fee for legal' serv, ices of the City Attorney to be rendered in connection with the validation of the~ Bonds by the Circuit Court for Palm Beach County (the "Validation Fee"). (f) The Company further agrees that if the Bonds are to be issued, then on the date of, but prior to, the issuance of the Bonds, it will pay to the City (not to exceed $20,000) in an amount equal to one-half of one percent (1/2 of 1%) of the aggregate principal amount of the Bonds issued and, if the closing for the Bonds is held otherwise than in the City of Boynton Beach, Florida, it will pay to the City an amount equal to the. reasonably incurred out-of-pocket travel and other expenses of the City representatives in attending the closing. The amounts payable by the Company unde~ this paragraph (f) shall'be in addition to the amounts payable by the Company described in paragraphs (d) and (e) above. (g) S~ long as this Memorandum of Agreement is in effect, all risk of 1Qss to the Project will be borne by the Company. (h) The Company hereby releases the City from, agrees that the City shall not be liable for, and ~grees to release, indemnify and hold harmless the City from, any liabilities, obligations, claims, damages, litigation, costs and expenses (including, without limitation, attorneys' fees and expenses) imposed on, incurred by or asserted against the City for any cause whatsoever pertaining to the financing of the Project, the Bonds or this Memorandum of Agreement or any transaction contemplated by this Memorandum of Agreement. 10. (i) As a matter of general assurance by the Company to the City, the Company hereby covenants and agrees that. it will indemnify the City for all reasonablei expenses, costs and obligations incurred by the City under the provisions of this Memorandum of Agreement to the end that the City will not suffer any out-of- pocket losses as a result of the carrying out of any of its undertakings herein contained. It is furthermore expressly agreed that any pecuniary liability or obli- gation of the City hereunder shall be limited solely to the revenues derived by the City from the sale, operation or leasin~ of"'~he Project, and nothing con~ rained in th'is Memorandum of Agreement shall ever be construed to constitute a personal or pecuniary liability or charge.against any commissioner, officer or employee of the City, .and in the event of a breach of any undertaking on the..part of the City contained 'in this Memorandum of Agreement, no personal or pecuniary liability or charge payable directly or indirectly from the general funds of the City shall arise therefrom. (j) The City shall be discharged of its obliga- tions unde~ Section 2 of th~s~~Memorandum of Agreement if the Company shall not provide at the closing for the Bonds assurances satisfactory to the City that no material adverse change has occurred in the represen- tations of the Company herein or in the financial 11. of the date hereof. (k) Except as otherwise provided in paragraph of this Section,. the provisions of paragraphs (d), (g),- (h) and (i) of this Section shall survive any termination of this Agreem'ent. (1) In any event, the provisions of this Memo- randum of Agreement shall be superseded by the agree- ments entered into by the C~ty and the Company as may be appropriate, in accordance with Section 3(c) of this Agreement ahd shall, upon the execution and delivery of such agreements, terminate and be of no effect. -' 5. Effective Date. This Memorandum of Agreement shall take effect upon its execution and delivery. IN WITNESS WHEREOF, the parties hereto have entered into this Memorandum of Agreement by their Officers' thereunto duly authorized as of the ,~'7/~day of' ~'~ 1984 (Seal)' THE CITY OF BOYNTON BEACH · ,(seal) POLY PLASTIC- PACKAGING CO., /NO. Attest: By: Title By: Title: