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.