HomeMy WebLinkAboutCity of Tamarac Resolution R-95-225CITY OF TAMARAC, FLORIDA
RESOLUTION NO. R-95- a
A RESOLUTION OF THE CITY COMMISSION OF THE CITY
OF TAMARAC, FLORIDA, AUTHORIZING THE
APPROPRIATE CITY OFFICIALS TO EXECUTE A
MEMORANDUM OF AGREEMENT WITH ARCH
ALUMINUM & GLASS COMPANY, INC., A FLORIDA
CORPORATION, WITH RESPECT TO THE CITY'S
ISSUANCE OF ITS INDUSTRIAL DEVELOPMENT
REVENUE BONDS IN AN AGGREGATE PRINCIPAL
AMOUNT NOT TO EXCEED $4,300,000 TO FINANCE ON
BEHALF OF SAID CORPORATION THE COST OF
CONSTRUCTING AND EQUIPPING A MANUFACTURING
PLANT AND RELATED OFFICE AND SUPPORT FACILITIES
TO BE LOCATED AT N.W. 67TH STREET AT NOB HILL
ROAD, TAMARAC, FLORIDA; PROVIDING FOR
CONFLICTS; AND PROVIDING AN EFFECTIVE DATE.
BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF
TAMARAC, FLORIDA AS FOLLOWS:
Section 1. AUTHORITY FOR THIS RESOLUTION. This resolution is adopted
pursuant to the provisions of Chapter 159, Part II Florida Statutes, as amended and other
applicable provisions of law (the "Act").
Section 2. FINDINGS. It is hereby ascertained, determined and declared as follows:
A. The City of Tamarac, Florida (the "City") is authorized by Chapter 159, Part II,
Florida Statutes (the "Act"), to make and execute financing agreements, contracts, deeds and
other instruments necessary or convenient for the purpose of facilitating the financing of the
acquisition, construction and equipping of manufacturing plant and other "projects" as defined
in the Act, including machinery, equipment, land, rights in land and other appurtenances and
facilities related thereto, to the end that the City may be able to promote the economic growth
of the State of Florida, increase opportunities for gainful employment and otherwise contribute
to the welfare of the State of Florida and its inhabitants, and to finance the cost of such
projects by the issuance of its revenue bonds.
R The City previously approved an issue of revenue bonds for the benefit of
Tamarac Business Center, Inc. and Samuel and Nathan Butters, to finance the cost of
constructing and equipping a manufacturing plant within the meaning of the Act and Article
VII Section 10(c) of the Constitution of the State of Florida on property located on N.W. 67th
Street at Nob Hill Road, Tamarac Florida (the legal description is attached hereto as
Exhibit "A") (the "Project"), which Project was to be leased to Arch Aluminum & Glass
Company, Inc. (the "Company").
C. The Company has informed the City that the Project will be owned by rather
than leased to the Company and has requested that the City reaffirm to the Company, by and
through this resolution, its intent to support issuance of not to exceed $4,300,000 of the City's
Industrial Development Revenue Bonds (the 'Bonds") to finance the Project.
D. The location of the Project in the industrial area of the City of Tamarac, Florida
is appropriate to the needs and circumstances of, and will make a significant contribution to
the economic growth of the City, will allow the Company to preserve, provide and increase
gainful employment, and will serve a public purpose by advancing the economic prosperity,
the public health and the general welfare of the State of Florida and its people.
E. The Project will be a "Project" within the meaning of Section 159.27(5) of the
Act in that, without limiting the generality of the foregoing, the Project is a "manufacturing
plant".
F. The Project will be owned by the Company or its successors or assigns.
G. The Bonds will be issued under an Indenture (the "Indenture") between the City
and a Trustee to be selected by subsequent resolution of the City. The terms of the Bonds will
be established by separate resolution of the City. The proceeds of the Bonds will be loaned
to the Company pursuant to a Loan Agreement (the "Loan Agreement") between the City and
the Company and will be applied to the cost of the issuance of the Bonds, the cost of the
construction and equipping of the Project, and such other "costs" as are permitted by the Act
in accordance with the terms of the Indenture.
H. The Bonds and the Company's obligations under the Loan Agreement will be
secured by a mortgage and the Company's payment obligation with respect to the Bonds shall
be guaranteed by a letter of credit issued by a financial institution with its long term debt rated
in one of the three highest rating categories by a nationally recognized rating service. Such
letter of credit shall be direct -pay and irrevocable and shall provide for the payment of all
principal and interest when due on the Bonds. Based upon the delivery of the letter of credit
and the Company's representations, the City finds that the Company is fully capable and
willing to fulfill its obligation to operate, repair and maintain the Project, and the Company is
desirous of serving the purposes of the Act and is willing and capable of fully performing all
other obligations and responsibilities which will be imposed upon it by the provisions of the
Loan Agreement.
I. The City is able to cope satisfactorily with the impact of the Project, and all the
public facilities, utilities and services that will be necessary for the construction, operation,
repair, improvement and maintenance of the Project, and on account of any increase in
population or other circumstances resulting by reason of the location of the Project within the
City, are available now or can be provided when needed.
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J. Adequate provision will be made under the terms of the Loan Agreement for the
operation, repair and maintenance of the Project at the expense of the Company, and for the
payment of the principal of and premium, if any, and interest on the Bonds.
K. Neither the City, Broward County, the State of Florida, nor any other
political subdivision of said State shall be obligated to pay the principal of, premium, if
any, or interest on the Bonds or other costs incident thereto, and all payments required
on the Bonds shall be payable solely from the proceeds derived by the City from the
Company under the Loan Agreement, and the City shall never be required to (i) levy ad
valorem taxes on any property within its area of operation to pay the principal of and
premium, if any, and interest on the Bonds or to make any other payments provided for
under the Loan Agreement or Indenture, or (ii) pay the same from any funds of the City
other than those derived by the City from the Company under the Indenture and Loan
Agreement; and such Bonds shall not constitute a lien upon any property owned by or
situated within the City except the Project and any other property that may be pledged
as security therefor by the Company, in the manner provided in the Loan Agreement and
the Indenture. Neither the full faith and credit of the City nor the full faith and credit
or taxing power of the State of Florida, Broward County, or any other political
subdivision of said State is pledged to the payment of the principal of, premium, if any,
or interest on the Bonds or other costs incident thereto, but such Bonds are limited
special obligations of the City payable solely from the sources identified above. No
member or officer of the City will be subject to any personal liability by reason of the
issuance of the Bonds.
L. The payments required to be made by the Company to the Trustee under the
Loan Agreement will be sufficient to pay all principal of and interest on and premium, if any,
for the Bonds as the same shall become due, and to make all other payments required by the
Loan Agreement and the Indenture.
M. The costs to be paid from the proceeds of the Bonds will be "costs of a project"
within the meaning of the Act.
N. Prior to issuance of the Bonds, the City will receive an opinion of Akerman,
Senterfitt & Eidson, P.A. to the effect that the Bonds will be validly issued and that the interest
on the Bonds will, under existing laws of the United States, be excluded from gross income
of the holders for federal income tax purposes.
O. The City has previously noticed and held a public hearing with respect to the
Project and will hold a second public hearing with respect to the Project prior to its final
approval of the issuance of the Bonds.
Section 3. APPROVAL AND AUTHORIZATION OF EXECUTION AND
DELIVERY OF MEMORANDUM OF AGREEMENT. The Memorandum of Agreement
between the Company and the City in substantially the form attached to this resolution as
Exhibit "B" and incorporated herein by reference, together with such changes therein, whether
made prior to the execution thereof or thereafter, as shall be approved from time to time by
the officers executing the same on behalf of the City, such approval to be conclusively
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evidenced by their execution thereof (the "Memorandum of Agreement"), shall be, and hereby
is, authorized and approved on behalf of the City.
The Mayor of the City shall be and hereby is authorized to execute, and the City Clerk
shall be and hereby is authorized to attest, the Memorandum of Agreement. Such officers and
all other proper officers, commissioners, directors, agents and employees of the City are hereby
authorized, empowered and directed to do all such acts and things and to execute such further
agreements and take such further actions as shall be necessary to carry out the intent and
purposes expressed in the Memorandum of Agreement, which shall become binding on the City
upon the execution and delivery by the officers of the City and by other parties thereto, and
are further authorized to take such other steps and actions as may be required and necessary
in order to issue such Bonds.
Section 4. CONDITIONAL APPROVAL. Although the City has previously held a
duly noticed public hearing on March 8, 1995 with respect to the Project at which it received
comments from the public, the City intends to hold another public hearing prior to its final
approval of the Bonds due to the change in ownership of the Project. The City's approval of
the issuance of the Bonds is expressly conditioned upon final approval by the City after such
public hearing.
Section 5. EFFECT OF RESOLUTION. This resolution is intended to and it shall
constitute a declaration of official intent of the City for purposes of Treas. Reg. 1.150-2 and
other applicable provisions of the Internal Revenue Code of 1986, as amended, and the related
regulations, rulings and interpretive court decisions thereunder.
Section 6. REPEALING CLAUSE. All resolutions or parts thereof in conflict
herewith are hereby repealed to the extent of such conflict.
Section 6. SEVERABILITY. If any clause, section, other part or application of this
Resolution is held by any court of competent jurisdiction to be unconstitutional or invalid, in
part or application, it shall not affect the validity of the remaining portions or applications of
this Resolution.
Section 7. EFFECTIVE DATE. This resolution shall take effect immediately upon
its adoption.
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PASSED, ADOPTED AND APPROVED, this I Ith day of October, 1995.
Attest:
Carol A. Evans C /`--
City Clerk
I HEREBY CERTIFY that I have approved
this -RESOLUTION as to form.
S. Kraft
City Attorney
qW44001
N rman Abramowitz
Mayor
RECORD OF CC
MAYOR
ABRAMOWITt
DIST. 1:
V / M KATZ
DIST. 2:
COMM. MISHKIN
DIST. 3:
COMM. SCHREI»
DIST. 4:
COMM. MACHEK
VOTE
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EXHIBIT "A"
LEGAL DESCRIPTION
Tract 2, LESS the North 149.00 feet, and LESS that portion lying within the East 53.00 feet
of Section 7, Township 49 South, Range 41 East;
TOGETHER WITH Tract 3, LESS the South one-half (S. 1/a), and LESS that portion lying
within the East 53.00 feet of said Section 7;
ALSO TOGETHER WITH Tract 6;
all being of "FLORIDA FRUIT LANDS COMPANY SUBDIVISION NO. 2," according to
the plat thereof, as recorded in Plat Book 1, Page 102, of the public records of Palm Beach
County, Florida, lying in the Northeast one -quarter (N.E. 1/a) of Section 7, Township 49 South,
Range 41 East, Said lands situate, lying and being in the City of Tamarac, Broward County,
Florida, and containing 35.7324 acres, more or less.
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• MEMORANDUM OF AGREEMENT
THIS MEMORANDUM OF AGREEMENT (this "Agreement"), dated as of the 1 Ith
day of October, 1995, between the CITY OF TAMARAC, FLORIDA, a municipal
corporation duly created and existing under and by virtue of the laws of the State of Florida
(the "City") and ARCH ALUMINUM & GLASS COMPANY, INC., a Florida corporation
(the "Company").
1. Preliminary Statements. Among the matters of mutual inducement which have
resulted in the execution of this Agreement are the following:
(a) The City is a local agency under the provisions of Part II of Chapter 159,
Florida Statutes, as amended (the "Act"), and is a political subdivision of a state within the
meaning of Section 103(a)(1) of the Internal Revenue Code of 1986, as amended.
(b) The Company proposes to utilize the proceeds from the sale by the City
of not to exceed $4,300,000 of its Industrial Development Revenue Bonds (the "Bonds") to:
(i) pay all or any part of the cost of issuance of the Bonds, (ii) pay all or any part of the cost
of constructing and equipping certain improvements on real estate at N.W. 67th Street and Nob
Hill Road, Tamarac, Florida, including the construction of a manufacturing facility, (iii) pay
all or any part of the cost of the acquisition and installation of certain machinery, equipment
is and appurtenances and facilities incidental thereto, and other improvements necessary and
convenient therefor (the aforementioned parcel of real estate and improvements to be
constructed thereon, and such machinery, equipment and appurtenances and facilities incidental
thereto, being referred to herein collectively as the "Project"), and (iv) pay any other "cost" (as
defined in the Act) of the Project, all within the applicable limits set forth in the Act, the
Internal Revenue Code of 1986, as amended, and the related regulations, rulings and
interpretive court decisions (together, the "Code").
(c) The Company intends to own and operate the Project for the primary
purpose of manufacturing aluminum products, including primarily aluminum structures and
store front frames and tempered and laminated glass.
(d) The Company expects that the portion of the Project to be financed with
the proceeds of the Bonds will cost approximately $4,300,000 inclusive of interest during the
period of construction, underwriting or placement agent fees or commissions, and legal,
accounting, financing and printing expenses.
(e) The Company requests the City to enter into this Agreement for the
purpose of declaring the City's intention to provide financing to pay all or a portion of the cost
of the Project by loaning the proceeds of the Bonds to the Company pursuant to a loan
agreement.
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(f) The Company represents that no portion of the Bond proceeds will be
used to reimburse the Company for costs of the Project incurred prior to issuance of the Bonds
except in accordance with Treasury Regulation 1.150-2 and 1.103-8T and other applicable
provisions of the Code.
(g) This Agreement is entered into to induce the Company to proceed with
the completion of the Project and to assure the Company, prior to the issuance of the Bonds,
that the City, in accordance with and subject to the provisions of the Act and this agreement,
will issue Bonds to cover costs so incurred by the Company in connection with the Project,
including costs incurred prior to the issuance of the Bonds, so long as such costs are
permissible expenditures of Bond proceeds under the provisions of the Act and the applicable
provisions of the Code.
(h) The Company proposes that the City agree to issue its Bonds under the
Act in an aggregate principal amount not to exceed $4,300,000, such Bonds to be secured by
the obligation of the Company to pay the debt service thereon and an irrevocable direct -pay
letter of credit issued by a financial institution with its debt rated in one of the highest three
ratings categories by a nationally recognized rating agency. By virtue of the provisions of
Section 103(a) and Section 144 of the Code, as now existing or hereafter amended, the interest
on such Bonds is to be excluded from the gross income of the holders for federal income tax
purposes.
(i) The City has preliminarily determined, based upon representations made
by the Company and without any independent investigation having been made by the City, that
the completion of the Project by the Company and the financing of all or a portion of the cost
of the Project by the City will be in furtherance of the purpose of the Act in that it will assist
and induce the Company to construct the Project in the City thereby helping to attract new
industry to the City which will bring more and higher paying jobs and will foster the economic
development of the City.
0) Based upon the representations of the Company and the fact that the
Company will deliver the letter of credit described above, the City has preliminarily determined
that the Company and its guarantor are fully capable and willing to fulfill their obligations
under the proposed financing agreement.
2. Undertakings on the Part of the City. In accordance with and subject to the
limitations of the Act, and subject to the satisfaction by the Company of the terms and
conditions of this Agreement, the City agrees as follows:
(a) That it will authorize the issuance and sale of one or more issues of its
revenue bonds, pursuant to the terms of the Act as then in force in an aggregate principal
amount not to exceed $4,300,000 for the purpose of paying all or a portion of the cost of the
Project.
(b) That at the proper time, and subject in all respects to the prior advice,
consent and approval of the Company, it will adopt such proceedings and authorize the
execution of such documents as may be necessary and advisable for the authorization, sale and
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issuance of the Bonds and the completion of the Project, all as shall be authorized by the Act
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 Broward County, the State of
Florida or of any political subdivision thereof, but such Bonds shall be payable solely
from the payments to be provided from the Company under financing agreements with
respect thereto. The Bonds issued shall be in such aggregate principal amount not exceeding
$4,300,000, shall bear interest at such fixed or variable rate or rates, shall have such maturity
or maturities not exceeding thirty (30) years, shall be payable at such times and places, shall
be in such forms and denominations, shall be sold in such manner, subject to the provisions
of Section 218.385 of the Florida Statutes, as amended, 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 agreed to by the City, all on terms mutually satisfactory to the
City and the Company.
3. Undertakings on the Part of the Company. Subject to the conditions hereinafter
stated, the Company agrees as follows:
(a) That the Company will generally arrange for, manage and carry out the
construction and equipping of the Project as contemplated by this Agreement (without thereby
obligating the Company to go forward with the Project).
(b) That the Company will cooperate with the City in making arrangements
for the sale and issuance of the Bonds in an aggregate principal amount not to exceed
$4,300,000 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 loan agreement and such other financing arrangements, indentures and related
agreements as shall, in the opinion of the Company, the Company's counsel, and the City and
City's counsel, be necessary or appropriate so that the Company will be obligated to pay for
the account of the City sums sufficient in the aggregate to pay the principal of, the redemption
premium, if any, and the interest on the Bonds when and as the s�.me shall become due and
payable.
(d) That the Company will take such further action and adopt such
proceedings as may be required to implement its undertakings hereunder.
(e) That between the date of this Agreement and issuance of the Bonds, the
Company will provide the City with such financial information as required by the City.
4. General Provisions.
(a) The City and the Company agree that the Company shall provide or cause
to be provided all services incident to the construction and equipping of the Project, including,
without limitation, the preparation of plans, specifications and contract documents, the award
of contract, the inspection and supervision of work performed, the employment of engineers,
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0 architects, builders and other contractors, and the provision of money to pay the cost thereof,
and the City shall have no responsibility for providing any of such services or any liability
therefor.
(b) All commitments of the City and of the Company pursuant to this
Agreement are subject to the condition that 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 arrangements and other agreements referred
to in Section 3(c) and, unless extended by subsequent resolution of the City, the Bonds shall
have been sold and delivered on or before one year from the date of this Agreement, this
Agreement shall terminate.
(c) The Company agrees that it will pay when due all costs and expenses of
the City including reasonable fees and expenses of the City's Bond counsel, including but not
limited to out-of-pocket expenses, which the City or its Bond counsel may have incurred in
connection with the execution of this Agreement and the performance by the City of its
obligations hereunder. The Company shall deposit with the City within five business days
from notification that an allocation has been obtained, the sum of $20,000.00. Such amount
shall be applied toward payment of legal fees and expenses when due. Once all such fees and
expenses have been paid, any balance of such deposit shall be returned to the Company. The
Company shall pay any such fees and expenses in excess of $20,000.00 from its other funds.
(d) So long as this Agreement is in effect, all risk of loss to the Project shall,
• as between the parties hereto, be borne by the Company.
(e) The Company hereby agrees that the City shall not be liable for, and
agrees to release, indemnify and hold harmless the City from any liabilities, obligations, claims,
damages, litigation, costs and expenses (including, without limitation, reasonable attorneys' fees
and expenses) imposed on, incurred by or asserted against the City for any cause whatsoever
pertaining to the Project, the Bonds or this Agreement or any transaction contemplated by this
Agreement.
(f) 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
expenses, costs and obligations incurred by the City under the provisions of the Agreement to
the end that the City or its counsel or Bond Counsel 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 obligation of the City hereunder shall be limited
solely to the revenues derived by the City under the Loan Agreement, and nothing contained
in this Agreement shall ever be construed to constitute a personal or pecuniary liability or
charge against any member, 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 Agreement, no personal or pecuniary
liability or charge payable directly or indirectly from the general funds or any other funds of
the City shall arise therefrom.
(g) The Company shall not discriminate in its hiring practices among persons
due to race, religion or national origin.
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5. Effective Dates. This Agreement shall take effect upon its execution and
delivery; provided, however, that prior to the sale of the Bonds by the City, the Company will
provide to the City:
(a) an irrevocable direct -pay letter of credit providing for the payment of all
principal and interest on the Bonds, which shall be issued by a financial institution the long
and short term debt of which is rated in one of the three highest ratings categories by a
nationally recognized rating agency;
(b) all financing documentation required by the City in connection with the
issuance of the Bonds including, but not limited to, a loan agreement and a note, all in form
and content satisfactory to the City;
(c) the appro- ing opinion of Akerman, Senterfitt & Eidson, P.A., as Bond
Counsel, to the effect that the Bonds have been validly issued and that under the existing laws
of the United States, interest on the Bonds will be excluded from gross income of the holders
for federal income tax purposes;
(d) if required by City's counsel or Bond Counsel, a final judgment of
validation relative to the Bonds from the Circuit Court in and for Broward County;
(e) evidence satisfactory to City's Counsel that the zoning of the land
comprising a part of the Project is appropriate for the Company's intended use of the Project;
(f) such other representations, warranties, covenants, agreements, certificates,
financial statements, and other proofs as may be required by the City, its counsel or Bond
Counsel; and
(g) final approval by the City after a public hearing.
The Project and the Bonds shall also be subject to a sufficient allocation granted
by the Division of Bond Finance of the State Board of Administration of the State of Florida
of the state volume limitation for the full amount of the Bonds as contemplated by Part V of
the Act, and no assurances can be given by the City as to the availability of such allocation.
Further, no assurances can be given by the City as to the result of any action or inaction by
a governmental agency, whether local, state or federal, nor as to the result of any judicial
action, which may affect in any way the issuance of the Bonds or the Project; and the City
shall not be responsible nor held liable for any costs or damages incurred by any party as a
result thereof.
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IN WITNESS WHEREOF the parties have executed and delivered this
Agreement as of the day and year first above written.
Attest:
Carol A. Evans
City Clerk
I hereby certify that I have
approved this Agreement as to form.
Lity Attorney
CITY OF TAMARAC, FLORIDA
By: FIV 'VR4 "' WVVL
Norman Abramowitz, Mayor
By: tll►�
Robert S. Noe, Jr., City Manager
Accepted:
ARCH ALUMINUM & GLASS
COMPANY, INC.
B —•
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Its: L-E0V 5/LVi525TE N
Attest:��n
Its: 107-4 L I JE kfi5D
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AKERMAN, SENTERFITT 8 EIDSON, P A.
ATTQRNEYS AT LAW
CITRUS CENTER
25S SOUTH ORANGE AVENUE
POST OFFICE BOX 231
ORLANDO, FLORIDA 32802-0231
(407) 043-7960
TELECOPY (407) 843-6610
October 12, 1995
Larry A. Rothenberg, Esq.
2424 N. Federal Highway, Suite 455
Boca Raton, FL 33431
i. {
C1 ^
1J1 { 1 i'lI]�i�
Re: City of Tamarac, Florida
Industrial Development Revenue Bonds
(Arch Aluminum Project) Series 1995
Dear Larry:
Enclosed please fined the original Memorandum of Agreement.
Please have this Agreement executed and delivered to the City of
Tamarac, c/o Dina McDermott, whose address is on the distribution
list. The Agreement will then be signed by the Mayor and a copy
returned to you. Also, please include a check from the company in
the amount of $20,000. These monies will be deposited into an
escrow fund to be held by the City. I will periodically send bills
to the City (with a copy to you) which will be paid from this
escrow account. --6A— Gff'� R '�Omaeof,
Please call if you have any questions.
Very truly Yours,
AKERMAN, SENTERFIT & EIDSON, P.A.
T. Dean Dickson
TDD/kmg
Enclosure
WPO:[TDICKSON.TAMARAC-II]ROTHENHERG-101295.LTR
ORLANDO MIAMI TA1_L•AHA55EE TAMPA