Agreement.pdf

DATE

NAME

TITLE

BROKER

ADDRESS

Re: Letter Agreement between Broker and the City of St. Petersburg, Florida, for broker services to sell the City’s Florida Voluntary Cleanup Tax Credits

Dear :

This letter agreement (“Letter Agreement”) is entered into between Broker and the City of St.

Petersburg, Florida (“City”) for Broker to provide broker services to sell the City’s Florida Voluntary Cleanup Tax Credits in accordance with the terms and conditions set forth herein.

The City has generated Voluntary Cleanup Tax Credits in the amount of $206,104.59 (the “Tax Credits”) as identified in Voluntary Cleanup Tax Certificate #59-6000242, FDEP Facility ID #BF529901009 (the “Certificate”). The Certificate was issued pursuant to Section 376.30781, Florida Statutes and is transferable pursuant to Section 220.1845, Florida Statutes.

The parties hereby agree to the following terms and conditions:

1. Pricing. Broker shall provide broker services to find a Buyer to purchase the Tax Credits.

For purposes of this Letter Agreement “Buyer” means a person or entity that is introduced to the City by Broker during the Term of this Letter Agreement and who is ready, willing, and able to purchase the Tax Credits at a price of no less than cents ($0.XX) per dollar ($1.00) of Tax Credits (“Purchase Price”). The City shall retain from the Purchase Price an amount equal to cents ($0.XX) per dollar ($1.00) of Tax Credits sold (the “Seller Price”) and agrees to pay Broker a fee to be calculated as follows:

_____________________________ (the “Brokerage Fee”). The City shall pay the Brokerage Fee within thirty (30) days after receipt of the Purchase Price from a Buyer.

2. Sale and Purchase Agreement. Broker shall support the City’s negotiation of a Purchase and Sale Agreement, which will be in substantially the same form as that attached to this Letter Agreement as Exhibit A unless otherwise agreed to by the City in writing.

3. Sole Compensation. Broker understands that it will not receive any compensation or payments other than the Brokerage Fee (e.g., Broker shall not be reimbursed for any costs or expenses incurred by Broker to provide services pursuant to this Letter Agreement).

4. City’s Right to Accept or Reject Offers. Broker acknowledges that the City will have sole and absolute discretion to accept or reject any purchase offers presented to the City by Broker and that the City will incur no liability in the event it rejects any purchase offer.

5. Indemnification. Broker shall indemnify and hold harmless the City from any claims or damages arising out of or in connection with the performance of the services pursuant to this Letter Agreement.

6. Compliance with Laws. Broker shall comply with all applicable federal, state, and local laws, ordinances, rules and regulations, the federal and state constitutions, and orders and decrees of any lawful authorities having jurisdiction over the matter at issue including the Florida Public Records laws (e.g., Chapter 119, Florida Statues, and specifically Chapter 119(2)(a)-(d)). IF BROKER HAS QUESTIONS REGARDING THE

APPLICATION OF FLORIDA PUBLIC RECORDS LAWS AS TO BROKER’S DUTY

TO PROVIDE PUBLIC RECORDS RELATING TO THIS LETTER AGREEMENT,

CONTACT THE CITY CLERK’S OFFICE (THE CUSTODIAN OF PUBLIC RECORDS)

AT (727) 893-7448, CITY.CLERK@STPETE.ORG, OR 175 FIFTH ST. N., ST.

PETERSBURG FL 33701.

7. No Assignment. Broker shall make no assignment of any rights, duties, or obligations under this Letter Agreement without the City’s prior written consent, which consent may be withheld by the City in its sole and absolute discretion.

8. Licenses. Broker is responsible for obtaining any and all necessary licenses, certifications and approvals which may be required by any government agency in connection with Broker’s performance of this Letter Agreement.

9. Confidential Information.

a. For the purposes of this Letter Agreement, “Confidential Information” means confidential and proprietary information of either party that is disclosed to the other party which, in the case of written information, is marked “confidential” or “proprietary” and which, in the case of information disclosed orally or stored electronically, is identified at the time of disclosure as confidential and proprietary and summarized and confirmed in writing as such by the disclosing party within thirty

(30) days of the disclosure. Broker must act in good faith when designating records or portions thereof as Confidential Information.

mailto:City.Clerk@stpete.org

b. At the time of disclosure of Confidential Information to the City, Broker must provide the City with a general description of the Confidential Information and a reference to the provision of Florida Public Records Laws which exempts such records from disclosure. Except in the case of a public records request, the City may not make copies of Broker’s Confidential Information or disclose it to anyone other than City employees, officials and professional advisors with a need to know the information contained therein.

c. If the City receives a public records request for any Broker Confidential Information, the City shall notify Broker of such request and shall not disclose any Broker Confidential Information if the City Attorney or designee reviews Broker Confidential Information and determines that it appears to be exempt from disclosure pursuant to Florida Public Records Laws. If the City Attorney or designee believes that any Broker Confidential Information appears not to be exempt from disclosure under Florida Public Records Laws, the City Attorney or designee shall notify Broker of such belief and allow Broker an opportunity to seek a protective order prior to disclosure by the City. Within a reasonable time not to exceed five (5) business days after receiving such notification from the City Attorney or designee, Broker shall either notify the City Attorney or designee that it withdraws the designation and does not object to the disclosure, or Broker shall file the necessary documents with the appropriate court seeking a protective order. If Broker does not seek a protective order within the required time frame or if the protective order is denied, the City Attorney or designee will have the sole and absolute discretion to disclose the requested Broker Confidential Information as the City Attorney or designee deems necessary to comply with Florida Public Records Laws.

d. By designating any portions of books and records as Confidential Information, Broker agrees to defend at its expense, indemnify, and hold harmless the City from and against any and all claims, demands and actions (whether or not a lawsuit is commenced), including but not limited to any award to a plaintiff for damages and costs and attorneys’ fees incurred by a plaintiff, and for costs and attorneys’ fees (including those of the City of St. Petersburg City Attorney’s Office) incurred by the City, arising out of or in connection with Broker’s designation.

10. Insurance. Broker shall carry the types and amounts of insurance required by all applicable laws at its own expense.

a. Broker shall maintain the following types and amounts of insurance throughout the

Term of this Agreement at its own expense:

(i) Commercial General Liability insurance in an amount of at least One Million Dollars ($1,000,000) per occurrence, Two Million Dollars ($2,000,000) aggregate in occurrences form. This policy shall include coverage for bodily injury, property damage, personal and advertising injury, products and completed operations, and contractual liability under this Agreement.

(ii) Commercial Automobile Liability insurance of $1,000,000 combined single limit covering all owned, hired and non-owned vehicles.

(iii) Workers’ Compensation insurance as required by Florida law and

Employers’ Liability Insurance in an amount of at least $100,000 each accident, $100,000 per employee, and $500,000 for all diseases.

(iv) Fidelity/Crime insurance with a minimum limit of $500,000, including third party coverage for employee theft, computer fraud, and other aspects of Broker’s operations. The City shall be named as a loss payee if insuring through a Fidelity Bond.

(v) Errors & Omissions/Professional Liability insurance appropriate to Broker’s profession with a minimum limit of $1,000,000 per occurrence. If coverage is on a “Claims Made” basis, it must include a retroactive date of coverage beginning no later than the date this Agreement is executed.

b. All of Broker’s insurance policies, except Workers’ Compensation and Professional

Liability, shall name the City as an additional insured.

c. All policies shall provide that the City will be provided notice at least thirty (30) days prior to any cancellation, reduction or material change in coverage.

d. Broker shall provide the City with Certificates of Insurance on a standard ACORD form, or similar form acceptable to the City, reflecting all required coverage. At the City’s request, Broker shall provide copies of current policies with all applicable endorsements.

e. All insurance required shall be on a primary and noncontributory basis and shall be provided by responsible insurers licensed in the State of Florida and rated at least A-in the then current edition of AM Best’s Rating Services, or similar rating agency acceptable to the City.

f. If the insurance carried by the Broker has broader coverage than required in this

Agreement, then that broader coverage, including but not limited to additional insured requirements, shall be the requirement in this Agreement. If the Broker’s insurance limits are greater than the minimum limits set forth herein, then the

Broker’s insurance limits shall be the required limits in this Agreement.

g. Broker hereby waives all subrogation rights of its insurance carriers in favor of the

City. This provision is intended to waive fully, and for the benefit of the City, any rights or claims which might give rise to a right of subrogation in favor of any insurance carrier. This provision applies regardless of whether the City has received a waiver of subrogation endorsement from the insurer.

h. The City reserves the right to change or alter the above insurance requirements as it deems necessary.

11. Term. This Letter Agreement shall become effective on ___________________ (“Effective Date”) and shall remain in full force and effect until Broker has completed its obligations under this Agreement and the City has acknowledged such performance in writing, or unless earlier terminated as provided for herein (the “Term”). Either party may terminate this Letter Agreement for its convenience upon thirty (30) days prior written notice to the other party, subject to paragraph 12.

12. Exclusivity. The City agrees that it will not directly contact a Buyer with the intent to sell future tax credits accrued by the City, if any, for a period of one (1) year from the Effective Date of this Letter Agreement.

13. Governing Law & Venue. This Letter Agreement shall be interpreted and construed in accordance with the laws of the State of Florida and shall inure to and be binding upon the parties, their successors and assigns. Venue for any action brought in state court shall be in Pinellas County, St. Petersburg Division. Venue for any action brought in federal court shall be in the Middle District of Florida, Tampa Division, unless a division shall be created in St. Petersburg or Pinellas County, in which case the action shall be brought in that division. The parties consent to the personal jurisdiction of the aforementioned courts and irrevocably waive any objections to said jurisdiction.

14. Amendments. Any amendments or modifications to this Letter Agreement shall be invalid unless made in writing and executed by authorized representatives of Broker and the City.

All notices should be sent as follows:

City of St. Petersburg, Florida Broker P.O. Box 2842 ADDRESS St. Petersburg, Florida 33731 ADDRESS Phone: 727-892-5652 Phone:

Attn: Erika Langhans Attn:

15. Entire Agreement. This Letter Agreement constitutes the entire understanding of the parties, and there are no further or other agreements or understandings, written or oral, in effect between the parties relating to the subject matter of this Letter Agreement. All obligations and rights of any party arising during or attributable to the period prior to expiration or earlier termination of this Letter Agreement shall survive such expiration or earlier termination.

16. Execution of Letter Agreement. This Letter Agreement may be executed in multiple counterparts, each of which shall be deemed an original for all purposes and all of which when taken together shall constitute a single counterpart instrument. This Letter Agreement may be executed by facsimile or electronically, and each such facsimile or electronic signature shall have the efficacy of a signed original and may be used in lieu of the original for any purpose. The parties each represent that the person executing this agreement on behalf of such party has been and is duly authorized to execute this Agreement.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

IN WITNESS WHEREOF the parties below have caused this Letter Agreement to be executed by their duly authorized representatives as of the date and year written below.

On behalf of the City of St. Petersburg, Florida, I acknowledge and agree to the terms and conditions set forth in this Letter Agreement. ATTEST

Sign:

Print: City Clerk (Designee)

Date: (Seal)

On behalf of Broker I acknowledge and agree to the terms and conditions set forth in this Letter Agreement.

Sign:

Print:

Date:

Approved as to Form and Content

City Attorney (Designee) 00871541.docx

Exhibit A: Form of Purchase and Sale Agreement

FLORIDA VOLUNTARY CLEANUP TAX CREDIT PURCHASE AND SALE

AGREEMENT

THIS FLORIDA VOLUNTARY CLEANUP TAX CREDIT PURCHASE AND

SALE AGREEMENT, (“Agreement”) is made and entered into on the _____ day of ____________, 20__ (“Effective Date”), by and between ____________________ (“Buyer”), and the City of St. Petersburg, Florida, (“Seller”) (collectively, “Parties”).

RECITALS

WHEREAS, Seller performed site rehabilitation work on a certain environmental remediation project having Florida Department of Environmental Protection (“FDEP”) Facility Identification Number BF529901009 (the “Project”); and

WHEREAS, in connection with the Project, Seller received Florida Voluntary Cleanup Tax Credits in the amount of Two Hundred Six Thousand One Hundred Four Dollars and fifty-nine cents ($206,104.59) (the “Tax Credits”); and

WHEREAS, the Tax Credits are identified in the certificate set forth in the attached Appendix A; and

WHEREAS, the Tax Credits can be applied to Florida corporate income tax liability, as provided in Section 220.1845, Florida Statutes; and

WHEREAS, Seller has no such Florida corporate income tax liability and therefore desires to sell the Tax Credits to an entity with Florida corporate income tax liability; and

WHEREAS, the sale of the Tax Credits from Seller to Buyer is authorized by Section 220.1845(2)(g), Florida Statutes.

NOW THEREFORE, for and in consideration of the foregoing recitals, all of which are hereby adopted as an integral part of this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Seller and Buyer covenant and agree as follows:

1. Purchase Price. The Purchase Price of the Tax Credits shall be

_________________________ ($________________), United States Dollars, which is equal to __________ Cents ($0.__) per Dollar ($1.00) of Tax Credits. Seller agrees to sell its Tax Credits to Buyer, and Buyer agrees to buy the Tax Credits from Seller for the Purchase Price in accordance with the process described herein.

2. Due Diligence. For the Tax Credit Certificate identified in Appendix A, Seller will provide Buyer with a copy of the FDEP eligibility determination letter and a copy of the Certified Public Accountant Certification, Technical Professional Certification, and Applicant Certification Affidavit from the VCTC application (collectively, “Due Diligence Material”) within ten (10) days after the execution of this Agreement. Buyer represents that it will proceed diligently with its due diligence review and will act in good faith to complete this transaction in a timely manner;

and will notify the Seller in writing that it either will or will not proceed with the purchase no later than ten (10) business days after Buyer’s receipt of the Due Diligence Material (the “Inspection Period”). If Buyer, in Buyer’s sole and absolute discretion, is not satisfied for any reason whatsoever with the results of its review of the Due Diligence Material prior to expiration of the Inspection Period, then Buyer may terminate this Agreement by giving written notice of termination to Seller prior to the expiration of the Inspection Period.

3. Tax Credit Transfer Procedures. The Parties shall effectuate the transfer of the Tax

Credits as follows:

(a) Within ten (10) days after the Inspection Period, the Seller shall provide FDEP with the “Certificate Transfer Request” form (attached as Appendix B) to transfer the Tax Credits from Seller to Buyer;

(b) If FDEP delivers new originals of the tax credit certificates in the Buyer’s name to

Seller conforming to the Certificate Transfer Request, then Seller shall deliver (via email) a copy of the conformed tax credit certificates in Buyer’s name to Buyer;

(c) Within three business days after receipt of the copy of the conformed tax credit certificates in Buyer’s name (via email) from Seller, Buyer shall send payment via ACH in the amount of the Purchase Price to Seller’s account in accordance with the ACH instructions provided by the Seller’s Finance Director.

(d) Upon Seller’s receipt and confirmation of the Purchase Price, Seller shall deliver

(via Federal Express Overnight mail) the original tax credit certificates in Buyer’s name to Buyer;

(e) Upon the Buyer’s receipt of the original tax credit certificates (via Federal Express

Overnight mail), this Agreement will immediately terminate, and the Parties will be relieved of any further obligations under this Agreement other than those that survive termination.

4. Remedies. In the event the Buyer fails to deliver the Purchase Price within fifteen (15) days after receipt of the conformed tax credit certificates from Seller, Seller may immediately terminate this Agreement upon written notice to the Buyer. If Seller fails to perform its obligations as required by this Agreement, the Buyer, after providing Seller with notice and five (5) business days to cure, may terminate this Agreement upon written notice to Seller.

5. Transaction Expenses. Each party will pay for its own legal and other expenses incurred in this transaction, if any. Both Parties acknowledge that _______________ (“Broker”) acted as broker in bringing the Parties together in this transaction. Broker was engaged by Seller, and Seller is obligated to pay Broker a fee for brokering this transaction in accordance with the Letter Agreement between Seller and Broker dated _____________. Buyer is not obligated to make any payment to Broker in conjunction with this Agreement or the Tax Credits that are the subject of this Agreement.

6. Seller Representations. Seller hereby represents, warrants, and covenants to Buyer as follows:

(a) To Seller’s knowledge, Seller has operated and is operating in material compliance with all laws, regulations and governmental orders applicable to Florida’s Voluntary Tax Cleanup Program. Seller has not received any notice asserting any noncompliance with any applicable statute, rule or regulation, in connection with Florida’s Voluntary Tax Cleanup Program, and, to Seller’s knowledge, no investigation is pending or threatened regarding any such matter.

(b) Seller is the owner of the Tax Credits, and Seller has not allocated, transferred, assigned or otherwise disposed of, or agreed to allocate, transfer, assign, or otherwise dispose of, the tax credit certificates set forth in Appendix A, to any person other than Buyer. To the Seller’s knowledge, the Tax Credits are free and clear of all security interests, charges, claims, encumbrances, or other liens. Seller further represents that: (i) the Tax Credits were originally issued to the Seller; and

(ii) the Seller has not taken any action in connection with the cleanup site which prevents Buyer or its successors and assigns from claiming the full amount of the Tax Credits or which causes the Tax Credits and the assignment and transfer hereunder to be cancelled, revoked, terminated, reduced, disallowed or recaptured.

(c) Seller will proceed diligently in effecting the transfer thereof. Further, if requested by the Buyer, the Seller will provide any available information related to the Tax Credits.

(d) Seller agrees to indemnify Buyer for any damages incurred as a result of its bad faith, misrepresentation, or fraud, or if FDEP disallows or recaptures any or all of the Tax Credits for any reason relating to their insurance, but in no event shall the amount of this indemnity exceed the Purchase Price as a result of any such disallowance or recapture.

7. Buyer Representations. Buyer hereby represents, warrants and covenants to Seller as follows:

(a) Buyer is purchasing the Tax Credits for its own account, for investment purposes only and not with a view to the resale or distribution thereof except to an entity affiliated with Buyer. Buyer hereby acknowledges that Section 220.1845, Florida Statutes, prohibits any subsequent transfer of the Tax Credits except through merger or acquisition.

(b) Buyer has not relied upon any representations or other information (whether oral or written) other than any information furnished to Buyer by Seller (if requested) or contained herein.

(c) Buyer has the financial wherewithal readily available to purchase the Tax Credits as contemplated herein and represents that no agreement exists, written or otherwise, which would adversely affect its ability to enter into this Agreement and timely complete the transaction contemplated herein.

(d) Buyer agrees to indemnify and hold Seller harmless for any loss or damage arising out of or in connection with Buyer’s bad faith, misrepresentation, or fraud, but in no event shall the amount of this indemnity exceed the Purchase Price.

8. Notices. Unless and to the extent otherwise provided in this Agreement, all notices, demands, requests for approvals and other communications which are required to be given by either party to the other shall be in writing and shall be deemed given and delivered on the date delivered in person, upon the expiration of five (5) days following the date mailed by registered or certified mail, postage prepaid, return receipt requested to the address provided below, or upon the date delivered by overnight courier (signature required) to the address provided below.

Seller: City of St. Petersburg Florida Attn: Erika Langhans

Chief Financial Officer/ Finance Director P.O. Box 2842 St. Petersburg, Florida 33731 727-892-5652

Erika.Langhans@stpete.org

Buyer: _______________________________

9. Successor and Assigns. This Agreement will inure to the benefit of and shall be binding upon the successors and assigns of the Parties hereto; provided that neither party may assign its rights or delegate its duties to any other person or entity without prior written consent of the other party.

10. Severability. Should any paragraph or portion of any paragraph of this Agreement be rendered void, invalid or unenforceable by any court of law for any reason, such determination shall not render void, invalid or unenforceable any other paragraph or portion of this Agreement.

11. Due Authority. Each party to this Agreement that is not an individual represents and warrants to the other party that (i) it is a duly organized, qualified and existing entity authorized to do business under the laws of the State of Florida, and (ii) all appropriate authority exists so as to duly authorize the person executing this Agreement to so execute the same and fully bind the party on whose behalf he or she is executing.

12. Amendment. This Agreement may be amended only in writing executed by the Parties.

13. No Construction against Preparer of Agreement. This Agreement has been prepared by the Seller and reviewed by the Buyer and its professional advisors. The Seller, Buyer and Buyer’s professional advisors believe that this Agreement expresses their agreement and that it should not be interpreted in favor of either the Seller or the Buyer or against the Seller or the Buyer merely because of their efforts in preparing it.

mailto:Erika.Langhans@stpete.org

14. Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which together will constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Agreement by facsimile or other electronic means shall be as effective as delivery of a manually executed original counterpart of this Agreement.

15. Governing Law and Venue. This Agreement shall be interpreted and construed in accordance with the laws of the State of Florida and shall inure to and be binding upon the Parties, their successors and assigns. Venue for any action brought in state court shall be in Pinellas County, St. Petersburg Division. Venue for any action brought in federal court shall be in the Middle District of Florida, Tampa Division, unless a division shall be created in St. Petersburg or Pinellas County, in which case the action shall be brought in that division. The Parties consent to the personal jurisdiction of the aforementioned courts and irrevocably waive any objections to said jurisdiction.

[Signature Page Follows]

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first above written.

BUYER:__________________________

By:___________________________

Print:_________________________

Title:__________________________

CITY OF ST. PETERSBURG, FLORIDA ATTEST

By:___________________________ ___________________________ Chan Srinivasa, City Clerk Print:_________________________

Title:__________________________ (SEAL)

Approved as to Content and Form:

City Attorney (Designee)

00869102.docx

Appendix A

Tax Credit Certificate

Appendix B

VCTC Certificate Transfer Request Form

[INSERT DATE]

[Insert Name] VCTC Program Manager Department of Environmental Protection Division of Waste Management, Voluntary Cleanup Tax Credit Attention: Courtney Johnstone 2600 Blair Stone Road, Mail Station 4535 Tallahassee, FL 32399-2400

Re: City of St. Petersburg, Florida, Voluntary Cleanup Tax Credit Certificate #59-6000242:

Dear [insert name], The City of St. Petersburg, Florida received Voluntary Cleanup Tax Credit Certificates issued from the State of Florida pursuant to Section 376.30781 of the Florida Statutes. We are requesting, pursuant to Section 220.1845(2)(g), that the following Certificate be transferred:

Certificate Number FDEP Facility ID# VCTC Application # Amount

59-6000242 BF529901009 2104 $206,104.59

The City of St. Petersburg, Florida herein authorizes that the enclosed Voluntary Cleanup Tax Certificate (described above) be transferred in its entirety as follows to:

Transfer %: 100% Transferee Name: [insert Transferee Name] Address: [insert address]

Contact Name: [insert contact name] Phone Number: [insert phone number] Email: [insert email] Transferee FEIN: [insert Transferee FEIN]

Upon transfer in accordance with the terms hereof, please mail the new original tax credit certificate bearing an issue date to the Seller’s Agent at the following address:

Seller’s Info: City of St. Petersburg Florida Attn: Erika Langhans Chief Financial Officer/ Finance Director P.O. Box 2842 St. Petersburg, Florida 33731 727-892-5652

Erika.Langhans@stpete.org mailto:Erika.Langhans@stpete.org

The undersigned is a duly authorized person for the purposes of authorizing transfer of this Tax Credit Certificate.

Sincerely, Erika Langhans, Chief Financial Officer/ Finance Director City of St. Petersburg Florida

(STATE OF FLORIDA)

(COUNTY OF_________________ )

(CITY OF_____________________ )

The foregoing instrument was acknowledged before me by means of □ physical presence or

□ online notarization this ____ day of ________________, 20___, by ________________ as _________________________________(type of authority, e.g. officer, trustee, attorney in fact) for City of St. Petersburg, Florida. She □ is personally known to me or □ has produced

________________________________as identification.

(Type of Identification)

NOTARY PUBLIC:

Sign: ______________________________

Print/Type: _________________________

SEAL

cc: [insert Buyer name and address] enc: Voluntary Cleanup Tax Credit Certificate # 59-6000242