Florida_Voluntary_Cleanup_Tax_Credit_Purchase_and_Sale_Agreement.pdf

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