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84-YYA 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 ACCURATE LEATHER & NOVELTY CO., INC., AND PROVIDING AN EFFECTIVE DATE. NOW, THEREFORE, BE AND IT IS HEREBY RESOLVED BY THE COUNCIL OF THE CITY OF BOYNTON BEACH, FLORIDA: Section 1. The proposed Memorandum of Agreement Boynton Beach, Florida and Accurate Leather & y Co., Inc. in the form of that appended as Exhibit A is hereby approved, and the Mayor or Vice Mayor and City Clerk or any Deputy City Clerk of the City of Boynton are hereby authorized, for and on behalf of the City, execute and deliver five counterparts of such Memorandum Agreement in substantially the form of that presented to is meeting, with such immaterial changes, additions and ions as the officials, executing said Memorandum of Ireement on behalf of the City shall deem to be appropriate, execution constituting conclusive evidence of their ~roval of such changes. Section 2. This resolution shall take effect immediately upon its passage. PASSED and ADOPTED this 5th day of June, 1984. ~TTEST: (Corporate Seal) CITY OF BOYNTON BEACH, FLORIDA Mayor ice Mayor __~/ MEMORANDUM OF AGREEMENT_ This MS/4OR~NDUM OF AGREEMENT is between the City' of Boynton Beach, Florida, a political subdivision of the State of ~lorida: (the "City"), and Accurate Leather & Novelty Co., Inc., ' ( the '"Company" ). 1...!~rel/minary S~atemen~. .Among the'matters of mutual inducement w'nich have-resulSed in the e~ecution of this Memorandum of Agreement are the following-- (a} The City is a political subdivision of .the State of Florida and is a ~olitica~ subdivision .... L~of__a state within, the meaning of Section 103(a) of the IHternal Revenue Code of.1954, as amended (the ~Co. de" ). ~J~')~ The Company proposes the acquisition of a 4.5-ac=e:~xsite located in the City of Bo~nton Beach, Palm B~Ch County, Florida., between Thor Drive and Inters~te 95 and the construction thereon of an appro×imat=ly 60,008 square foot building and the acquisition and installation therein of certain machinery, equipment and fixtures, all to be used as a ma~acturing and processing facility for men's and ~omen's fine leather goods (the site, the ~uild- lng a.--~-the machinery, equipment and fixtures herein being called (the "Project"). {c) The Florida IndustriaI Development Financing Act, being Part II, Chapter 159 of the Florida Statutes, as amended (the "Act"), provides that a municipal!'ty 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 com- prising an industrial or manufacturing plant, or a warehousing 'or distribution facility, including one or more buildings and other .structures, whether o~ not on the same site or sites. (d) The Company has determined that the Project will cost approximately $2,200.,000.. (e) The Company. anticipates that the Pro, eot will create approximately 125 new full _time jobs in the City. (f) The Company has requested the City to enter into this Memorandum of Agreement for the purpose of declaring the City's intention to provide financing to pay alt' or a portion of the cost of the Project. (g)'- The Company has represented that neither it nor a~ny affiliate, has financed the Pro~ec~, 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 Pro~ect 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 t'he Company, prior to 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 ex'ceed $2,2007,000 to pay all or a portion of the cost of the Project, such bonds to be secured by the obligations of the c~ny under 'a financing agreement to make payments suffi~iant to pay debt service thereon, and by virtue of 'the~provisions of Section 103(b)(6)(A) or (D) of the Code,-.-as now existing or hereafter ~.~ended, to be exempt _from Federal income taxation. (j) The City has determined that the Acquisi- tion of the Project by the Company and the financing of all or a portion of the cost of the Project by the City ~ss described herein will be in furtherance e of the purpose of the Act in that it'wiI1 induce..the Company to locate an industrial and manufacturing faci- lity in the City and will alleviate unemployment in .the City and will foster the industrial and business 'development 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 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 d~v%lop~ 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 $2,200,000 (such bonds and notes being herein called collectively the "Bonds") for the purpose of paying all or a portion of the "Cost" (as defined in the Act) of the (b) That it will, at the proper time, and sub- ject in all respectS to the prior advice, consent and approval 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 t~e State of Florida or of any po!i- tica! subdivision thereof, or a pledge of the faith and cre~i't of ~he City or of the State of Florida or of any ~ch-political subdivision, but. shall be payable solely from the revenues provided therefor. The Bonds -. issued shall, be in such aggr'egate 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-Lin' such manner' at 'Such price and at such time or-times, shall have such _provisions fo~ redemption, shall be executed, and shall be secured as hereafter may be requested by the Company and fixed by the City, all on terms autho- rized b~y' the Act and mutually satisfactory to the city~-a~nd the ~Company. 3. ~ndertakings on the part of the Con,pantry. Subject to the co~n~ditions hereinabove and hereinafter stated, the Company agrees '~s follows: (a) 'That the Company will arrange for, manage and carry out, or cause to be arranged for, managed and Se 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~ ante of the Bonds 'in an aggre<jate principal ~rtount of $2,200,000 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 Company will supply all additional funds which are necessary for the completion of the Project. (c) That contemporaneously .with the delivery of the Bonds, the 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 Proj'ec~ at its own expense, to'.pay for the account of the City sums sufficient in the aggregate to pay all of the principal of and redemption premium, if ~ny, and..interest on the Bonds when an{~ as the same shall become due and payable, to report annually to the City Finance Director the annual bond indebtedness Outs~'anding and any other information necessary to comp!~--with Florida Statu'tes~ Section 218.32, and to pay a!i~ other costs incurred by the City in connection with ~h~ financing, Acquisition and operatio'n 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 Company will take such further action and--ad_opt such proceedings as may be ~equired to imple- ment the-ir 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 will advanc~ or it will cause to be advanced, from time to tlme=-~l funds necessary for the Acquisition of the Pr.~j. ect, and such funds when so advanced shall be deeme¢?~unds 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 sufficiant for sUch-p~rpose, 'the City agrees to repay from suck 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 preparation 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 provision of any such services. (c) All commitments of the City and of the Company pursuant to this Memorandum of Agreement (except those of/t~he Company 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 acceptabl~ 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 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 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 coun- sel, the reasonable fees and expenses of the Company's financial advisor, if any, and the reasonable fees and expenses of Bond Counsel and the City Attorney (collectively, "Financing Costs"). The Financing Costs .... shall be payable by the Company in addition to the $1,000 '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 proceed- ing 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 to be rendered in connection with the validation of the Bonds by the Circuit Court for Palm Beach County (the ~Ualidation Fee"). (f) The Company further agrees that if the Bonds are to be' issued, then on the da~e 'of, but prior to, the issuance of the Bonds, it will pay to the City a f~e (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 Boyn-ton 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 under this paragraph (f) shall be in addition to the amounts payable by the Company described in paragraphs (d) and (e) above. (g.) So long as this Memorandum of Agreement is in effec~,t~all risk of loss to the Project will be borne- by thee~- ~ompany. · ~) The Company hereby releases the City frOm, agre'es~ that the City shall not be liable for, and agrees to r~lease, indemnify and hold harmless the City from, any liabilities, obligations, claims, damages, litigation, costs and expenses (including, without limitation, attorneys' fees and expenses) 10. 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 Agree- ment or any transaction contemplated by this Memoran- dum of Agreement. (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 reasonable ex- penses, costs and obligations incurred by the City under the provisions of this Memorandum of Agreement to the end th_at 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 leasing of the Project, and nothing con- rained ~n' this Memorandum of Agreement shall ever be construed to constitute a personal or pecuniary liabil- ity 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 ?eneral funds of the City shall arise therefrom. 11. (j) The City shall be discharged of its obliga- tions under Section 2 of this Memorandum o~ ~%greement if the Company shall not. provide at the closing for the Bonds assurances satisfactory to the City that no mate- rial adverse change has occurred in the representations of the Company herein or in the financial condition of the Company 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), (1%) and (i) of this Section shall survive any termination of this Agreement. - _ (I) In any event, the provisions of this Memo- randum of Agreement shall be superseded by the agree- ments entered into by the~City and the Company as may 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. 5. Ef-~ective Date. This Memorandum of Agreement shall take effect upon its execution and delivery. 12. IN WITNESS WHEREOF, the parties hereto have .entered into this Memorandum of Agreement by-their officers .thereunto ' ' ~d duly authorized as of. t~e __ ay of 'June, 1984. (Seal) At,est: By:. ~. C~y Clerk (Seal) THE CITY OF BOYtqTON BEACH Vice Mayo ACCURATE LEATHER AlgD NOVELTY CO., INC. Attest: 'By: Title: By: Title: 13.