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84-ZZRESOLUTION NO. 84-~__ A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BOYNTON BEACH, FLORIDA, APPROVING AND AUTHORIZING THE EXECUTION OF A MEMORANDUM OF AGREEMENT BETWEEN THE CITY AND BOYNTON COMMERCE CENTER 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 1o The proposed Memorandum of Agr.eement between Boynton Beach, Florida and Boynton Commerce Center 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 Memorandum of Agreement in substantially the form of that presented to this meeting, with such immaterial changes, additions and omissions as the officials executing said Memorandum of Agreement on behalf of the City shall deem to be appropriate, their execution constituting ~conclusive evi- dence of their approval of such changes. Section 2. This resolution shall take effect immediately upon its passage. PASSED and ADOPTED this 5th day of June, 1984. CITY OF BOYNTON BEACH, FLORIDA ATTEST: {Corporato Seal) Mayor Vice Mayor Co~Dcil Mem~Be r 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 Boynton Commerce Center, a Florida general partnership (the "Partnership"). 1. Preliminary Statement. Among the matters of mutual inducement which have resulted in ~Se execution of this Memorandum of Agreement are the following: (a) The City is a political 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 Partnership proposes the acquisition of a 16-acre site located in the City of Boynton Beach, Palm Beach County, Florida, consisting of f~ur parcels, and the 'construction of four buildings thereon to be used_ f6r warehousing and ancillary office space for nearby industrial and commercial sites (the buildings, but not the site,'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 have 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 facilityj including one or more buil- dings and other structures, whether or not on the same site or sites. (d) The Partnership has determined that the Project will cost approximately $9,500,000. (e) The Partnership anticipates that the Project will create approximately 1,000 new jobs in the City. (f) The Partnership has requested the City to enter into this Memorandum of Agreement for the purpose of declaring the City's intention to provide financing ~to pat all or a portion of the cost of the Project. (g) -The Partnership has repr.esented that neither it nor any affiliate has financed the Project, that neither the acquisition, construction nor installation (col!ec~vely, the "Acquisition") of the Project has commen~ed and that it is essential that the Partnership commence the Acquisition of the Project immediately. Ch) This Memorandum of Agreement is entered into to induce the Partnership to proceed with the necessary plan-s for the Project and to incur costs in connection with'various phases of the Project and to assure the Partnership prior to the issuance of bonds ~f 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 Partnership in connection with the Project, including such costs incurred by the Partnership 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 Partnership proposes that th~ City agree to issue its industrial development reVenue bonds under the Act in an aggregate principal amount not to exceed $9,500,000 to pay all or a portion of the cost cf the Project, such bOnds to be secured by the obligations of the Partnership under a financing 'agreement to make paymen~.s sufficient to pay debt service thereon, and by virtue of the provisions of Section 103(b)(6)(A) or (D) of th~ Code, as now existing or hereafter amended, to be exempt from Federal income taxation. (j) The City has determined that the Acquisi- tion of the Project by the Partnership and the financing~ of all or a portion of the cost of the Project by the City as described herein will be in furtherance 0 of the purpose of the Act in that it will induce the Partnership to locate a-warehouse and distribution facility in the City and will alleviate unemployment in the City.and will foster the industrial and business development of the City. 2. _~nde~takings on the part of the City. In accor- dance with and subject to the limitations of the Act and the conditions hereinabove and hereinafter stated, the City agrees as follows: . '(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 $9~500,000 (~such bonds and notes being herein called co!lec~ively the "Bonds") for the purpose of paying all o~a~- portion of the "Cost" (as defined in the Act) of t ~h~-Project. (b) That it will, at the proper time, and sub- ject in all respects to the prior advice, consent and approval of the Partnership, adopt such proceedings and authorize the execution of such documents as may be necessary and advisable for the authorization, sale ~a~ i~suance 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 Partnership. 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 therefor. 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 such manner. at such price and at such time or'times, shall have such provisions for redemption, shall be executed, a~d -~o shall be secured as hereafter may be requested by the Partnership and fixed by the City, all on terms autho~ rized by the Act and mutually satisfactory to the City and the Partnership. 3. Undertakinqs on the part of the Partnership. Sub- ject to the conditions hereinabove and hereinafter stated, the Owner agrees as follows: (a) That the Partnership will arrange for, manage and. carry'out, or cause to be arranged for, managed and carried out, the Acquisition of the Project'for and on behal'f of the City, as herein provfded. (b) That the Partnership will cooperate with the Cit~ in making a~rangements for the sale and issu- ance of the Bonds in an aggregate principal amount of $9,500,000 to an institutional investor or investors, for such investor's or investors' own portfolios, and that to the extent that the proceeds derived from the sale of the Bonds are not sufficient to complete the Project, the Partnership will supply all additional funds which are necessary for the completion of the Project. (c) That contemporaneously with the delivery of the Bonds,-the Partnership will enter into a financing agreement and such indenturesr guaranties and related agreements as shall be necessary or appropriate so that the-Partnership will be obligated to operate, maintain and-~epair the Project at its own expense, to pay fo~ the ~ccount of the City sums sufficient in the aggregate to pay all of the principal of and redemption premium, if _any, and interest on the Bonds when and as the same sha~! become due and payable, to report annually to the C~uv 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. (d) That the Partnership will take such further action and adopt such proceedings as may be required to implement 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 Partnership 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 Partnership agrees that it will 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 to repay from such net proceeds to the partnership all funds so advanced promptly after the sale of the Bonds. (b) The City and the Partnership agree that the Partnership, 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 preparation of plans, specifi- cations 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- sibflity for the provision of any such services. (c) All commitments of the City and of the pa~j:~nership pursuan~ to this Memorandum of Agreement (except those of the Partnership set forth in para- graphs (d), (e), (g), (h) and (i) of this Section) are subject to the condition that on or before 18 months fromm, the date hereof (or such later date as shall be mutually satisfactory to the City and the Partnership), tke City and the Partnership shall have agreed to~ m~etually 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 pro- ceedings referred to 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 Partnership 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 Partnership's financial advisor, if any, any fees and expenses of the Partnership's counsel, the reasonabl~ fees and expenses of the City's financial ad~sor, if any, and the reasonable fees and expenses of Bond Counsel and the City Attorney (collectively, "Financing Costs"). The Financing Costs shall be pay- able by the Partnership in addition to the $~,000 appi_ication fee heretofore paid by the Partnership to the City (the "Initial Fee"), and in addition to the Validation Fee, if any, described below. (e) The Partnership also agrees that, if a proceeding for the validation of the Bonds is to be commenced under Chapter 75 of the Florida Statutes, as amended, it will pay to the City, prior to the filing of the City's Complaint for Validation of the Bonds, an additional fee for legal services 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 Partnership further agrees that if the Bonds are to be issued, then o9 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 ¢losin~ for the Bonds is h~ld otherwise than in the _ City of Boynton Beach, Florida, ~it will pay to the City an amount equal to the reasonably incurre~ out-of-pocket travel and other expenses of the City representatives in-a~ending the closing. The amounts payable by the Partnership under this paragraph (f) shall be in addi~-ion to the amounts payable by the Partnership described in paragraphs (d) and (e) above. _(g) So long as this Memorandum of Agreement is in effect, all risk of loss to the Project will be borne by-the Partnership. (h) The Partnership hereby releases the City from, agrees that the City shall not be liable for, and a~ees to release, indemnify and hold harmless the 10. 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 contemplate~ by this Memorandum of Agreement. (i) As a matter of general assurance by the Partnership to the City, the Partnership hereby' covenants and agrees that it will indemnify the City for all reasonable 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 f~rthermore expressly agreed that any pecuniary liability or obligation of the City hereunder shall be limited solely to the revenues derived by the City from the Sale, operation or leasing of the Project, and nothing contained in this 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. (ji The City shall be discharged of its obliga- tions under Section 2 of this Memorandum of Agreement if t~e Partnership shall not p~ovide at the closing for the Bonds assurances satisfactory to the City that no material adverse change has occ6rred in the represen- tations of the Partnership herein or in the financial condition of the Partnership as presented to the City as of the date hereof. .... (k) Except as otherwise provided in paragraph (1) of this Section, the provisions of paragraphs (d), (e), (g), (h) and (i) Of this Section shall survive any termination of this-Agreement.- (!) In any event, the provisions of this Memo- randum~of Agreement shall be superseded by the agree- men~s~entered into by the City and the Partnership as map be appropriate, in accordance with Section 3(c) of this Agreement and shall, upon the execution and delivery of such agreements, terminate and be of no effect. 12. 5. -Effective Date. This Memorandum of Agreement take effect upon its execution and delivery. shall IN WITNESS WHEREOF, the parties hereto have entered into this Memorandum of Agreement by their officers thereunto duly authorized as of the~day of June, 1984. (Seal) Attest: e ty cy rk (Seal) THE CITY~ OF BOYNTON BEACH Vice Mayor/' BOYNTON COMMERCE CENTER By- General Partner By: General Partner. 13.