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HomeMy WebLinkAboutCity of Tamarac Resolution R-95-0051 Temp. Reso#6948 CITY OF TAMARAC, FLORIDA RESOLUTION NO. R-,95 ---15;- A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA; AUTHORIZING THE APPROPRIATE ELECTED OFFICIALS TO EXECUTE A MEMORANDUM OF AGREEMENT WITH TAMARAC BUSINESS CENTER, INC., A FLORIDA CORPORATION, WITH RESPECT TO THE CITY'S ISSUANCE OF ITS INDUSTRIAL DEVELOPMENT BONDS IN AN AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED $4,500,000 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; AND PROVIDING FOR AN EF_FEQTIVE DATE. WHEREAS, it is proper to participate and endorse Industrial Revenue Bonds for Public purposes; and WHEREAS, this process is for the public purpose of improving the economic well- being of the City of Tamarac; and WHEREAS, economic welfare is one of the main concerns of a modern city; and WHEREAS, the recommendation of the City Manager will contribute to the economic welfare of the City by resulting in the support and endorsement of Industrial Revenue; and WHEREAS, the Company has requested that the City indicate to the Company, by and through this Resolution, its intent to support issuance of bonds to finance the project; z Temp. Reso #6948 and WHEREAS, the location of this project in the industrial area of the City of Tamarac is appropriate to the needs and circumstances of, and will make a significant contribution to the economic growth of the City; and WHEREAS, the Company and its lessees will provide an increase in gainful employment, and serve a public purpose by advancing the economic prosperity, public health and general welfare of the City of Tamarac; and WHEREAS, the project will be developed and owned by the Tamarac Business Center, Inc., a Florida Corporation, and initially leased to ITW MIMA, Inc., a Delaware Corporation, for the purpose of a manufacturing plant which includes the manufacturing of industrial stretch -wrap systems; and WHEREAS, the City Commission of the City of Tamarac hereby endorses and supports this process; and WHEREAS, Tamarac Business Center, Inc. is fully responsible and responsive to fulfill its obligation to make payments pursuant to the terms of the loan agreement as it relates to the bond requirements; and WHEREAS, all costs paid from the proceeds of the bonds will be considered costs of the project; and WHEREAS, by public hearing on January 11, 1995, the City has properly noticed and held the hearing as required by law prior to the adoption of this Resolution; and 3 Temp. Reso #6948 WHEREAS, the City of Tamarac will realize revenue from real property improvements which would not have been made but for the relocation of ITW MIMA to the City of Tamarac; and WHEREAS, Mayor and City Commission of the City of Tamarac have long recognized the importance of Land Section 7 to the economic vitality to the City; and WHEREAS, the City Commission of the City of Tamarac, Florida deems it to be in the best interests of the citizens and residents of the City of Tamarac to approve the City Manager's recommendation; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF TAMARAC, FLORIDA: S—F ,TION 1: That the foregoing "WHEREAS" clauses are hereby ratified and confirmed as being true and correct and are hereby made a specific part of this Resolution. SECTION 2: All resolutions or parts of resolutions in conflict herewith are hereby repealed to the extent of such conflict. SECTION 3: 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. CTION 4: This Resolution shall become effective immediately upon its passage and adoption. 1 1 1 4 Temp. Reso #6948 PASSED, ADOPTED AND APPROVED this f/ day of ,1995.. ATTEST: CAROL A. EVANS City Clerk I HEREBY CERTIFY that I have a ro ed this RESOLUTION as; to form. MITCHELL S. City Attorney ABRAMOWITZ Mayor RECORD OF COMMISSION VOTE MAYOR ABRAMOWITZ� DIST. 1: V / M KATZ DIST. 2: COMM. MISHKIN DIST. 3: COMM. SCHREIBER DIST. 4: COMM. MACHEK „5 Temp. Reso. #6948 C 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. 1/2), 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. WPO:[TUICKSON. TAMARACIMOLUTION. January 6, 1993 3:22pm 0 MEMORANDUM OF AGREEMENT THIS MEMORANDUM OF AGREEMENT (this "Agreement"), dated as of the 12th day of January, 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 TAMARAC BUSINESS CENTER, INC., a Florida corporation (the "Company" ). 1. eliminary 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 1I of Chapter 159, Florida Statutes, as amended (the "Act"), and is a political subdivision of a state within the meaning of Section 1O3(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 $4,500,000 of its Industrial Development Revenue Bonds (Tamarac Business Center, Inc. Project), Series 1995 (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 an approximately 90,000-square and a 35,000 square foot manufacturing facility, (iii) pay all or any part of the cost of the acquisition and installation of is certain machinery, equipment 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 leasing the Project to ITW Mima, Inc. and Loveshaw Corporation or another subsidiary of Illinois Tool Works, Inc., primarily for the manufacture of industrial stretch -wrap systems and machinery. (d) The Company expects that the portion of the Project to be financed with the proceeds of the Bonds will cost approximately $4,500,000 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. WPO:[TDICKSON.TAMARAC]MEMO-AGMT. January 6, 1995 3:21pm (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 $4,500,000, such Bonds to be secured by the obligation of the Company to pay the debt service thereon, a mortgage and security interest in the Project, 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 notionally recognized rating agency, and the Company's payment obligation with, respect to the Bonds shall be personally and unconditional guaranteed by the shareholders of the Company. 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 Is 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. 41 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 $4,500,000 for the purpose of paying all or a portion of the cost of the Project. WpO:[TDICKSON.TAMARACIMEMO-AGMT. January 6, 1995 3:21 pm 2 • (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 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 it 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 $4,500,000, 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. Undertakinias 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). 0 (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 $4,500,000 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 same 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 the date of issuance of the Bonds, Samuel Butters and Nathan Butters will provide the City with such financial statements as required by the City. WPO:[TUICKSON.TAMARAC]MEMo-AGMT. January 6, 1995 3:21pm 3 9 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, architects, builders and other contractors, and the provision of money to pay the cost thereof pending reimbursement by the City from the Bond proceeds, 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 $25,000.00 less any amount paid by the Company for fees and expenses incurred prior to obtaining such an allocation. Such amount shall be applied toward payment of 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 $25,000.00 from its other funds. The fees of Bond Counsel shall not exceed $3,000.00 prior to submittal of a request for an allocation and $25,000,000 in total. (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 WPO:[TDICKSON.TAMAP AC]MEMO-AGMT. January 6, 1"5 3:21pm 4 C_1 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) In any event, the provisions of this Agreement shall be superseded by any financing arrangement entered into by the City and the Company in accordance, with Section 3(c) of this Agreement and, upon execution and delivery of such documents constituting the financing arrangement, this Agreement shall terminate and be of no further effect. (h) The financing arrangements to be entered into in connection with the issuance of the Bonds shall provide that the Company shall not discriminate among persons due to race, religion or .national origin. (i) The Company will deliver upon execution of this agreement, the City the sum of $500.00 and on the date of issuance of the Bonds shall pay the City a fee equal to 1/2 of a percent of the principal amount of the Bonds. 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, a note, a mortgage and security agreement and an unconditional irrevocable guaranty of its payment obligation with respect to the Bonds by the Company, all in form and content satisfactory to the City; (c) the approving opinion of Akerman, Senterfitt & Eidson, P.A., as Bond Counsel, to the effect that the Bands 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 Band Counsel, a final judgment of validation relative to the Bonds from the Circuit Court in and for Broward County; WPO: (TDICKSON.TAMARAC]MEMo-AGMT. January 6, 1995 3:21pm 5 0 0 r-7 L.J (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; and (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. 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. 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 Agreempt � )t11 S. Kraft Attorney CITY OF TAMARAC, FLORIDA JNorman Lbrow!"itz Mayor form. Accepted: TAMARAC BUSINESS CENTER, INC. By: _. /4a, Samue Butters President Attest: f &//L Secretary WPO:(TDiCKSON.TAMARAC]MSMO-AGMT, January 6, 1995 3:21pm r' 0 The undersigned Guarantors hereby unconditionally and irrevocably guarantees to the City the full and prompt payment and performance of all of the Company's obligations arising under this Agreement. Samuel Butters IjI �. Nathan Butters STATE OF FLORIDA COUNTY OF IreA The foregoing instrument was acknowledged before me this day of genuary, 1995, by Samuel Butters., Name: Notary Public, State of Florida Personally Known 10 •yv_2- Produced Identification Type of Identification: 01 (NOTARIAL SEAL) STATE OF FLORIDA COUNTY OF �`.rgf_ The foregoing instrument was acknowledged before me this / day of3aftuary, 1995, by Nathan Butters. Name: jgr rP� A ,A c//'�^'-r'S' Notary Public, State of Florida Personally Known Produced Identification Type of Identification: Is (NOTARIAL SEAL) WPO:(TDICKSON.TAMARAC]MEMO-AOMT. January 6, 1995 3:24pm 7