AGREEMENT TO OFFER AND SELL INTERESTS IN THE CITY'S STATE TAX CREDITSAGREEMENT
This Agreement is made and entered into between the City of Clearwater, whose
address is: Post Office Box 4748, Clearwater, FL 33758 -4748, hereinafter referred to
as the "City ", and Fallbrook Credit Finance, LLC , whose address is: 26610 Agoura
Road, Suite 120, Calabasas, California 91302 -3823 hereafter collectively referred to as
"Agent ".
The parties agree as follows:
SCOPE OF PROJECT. Agent agrees to act as the exclusive agent for the City to offer
and sell interests in the City's state tax credits as follows:
1. Tax Credits. State of Florida Brownfield Voluntary Cleanup Tax Credits, which
were and will be received for fiscal years 2011, 2012, 2013 in a cumulative amount of
up to $273,975.35 in conjunction with environmental remediation work at the Former
CarPro property located at 1359 Cleveland in Clearwater, Florida (the "Project "). The
tax credits are in the form of three Certificates issued or to be issued by the Florida
Department of Environmental Protection (the "Tax Credits ") as shown below. These
Tax Credits are controlled by, and the interests will be sold by, the City.
Year of Certificate
Project Site
Tax Credit Amount
Issued 2014 for 2011
CarPro
$196,272.49
Issued 2015 for 2012
CarPro
$ 61,683.04
Issued 2015 for 2013
CarPro
$ 16,019.82
Total
$273,975.35
2. TERM. This Agreement ( "Agreement ") shall begin on the effective date shown
below and will continue for six months (other than with respect to its provisions which
survive a termination). After this, the parties may extend this Agreement for an
additional 90 days by mutual written agreement.
3. SERVICES. Agent will use best efforts to market the Tax Credits to accredited
investors, and to present the City with offers or letters of interest to invest in or purchase
the Tax Credits interests. The City has the right to reject any investment proposal for
any or no reason without any financial obligation to Agent.
4. COMPENSATION. The investor(s) will purchase the Tax Credits from the City
at a price of no less than $0.88 per dollar of Tax Credits (the "Total Purchase Price ").
The City will retain from the Total Purchase Price an amount equal to $0.88 per dollar of
Tax Credits sold to investor(s) (the "City Price ") and agrees to pay Agent a placement
fee equal to the difference between the Total Purchase Price and the City Price.
Agent's placement fee will be included in Total Purchase Price. The City will pay Agent
immediately upon the City's receipt of the gross proceeds of the transaction. Each
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Certificate, if sold separately, shall constitute a transaction under this Section 4. Such
obligation shall survive any transfer of the Tax Credits or of the City's interest, or if the
sale proceeds are received by some entity other than the City. This fee may also be
paid to the Agent directly by the Purchaser, an Escrow Agent or other intermediary
holding such funds, if such parties so agree in writing.
The City acknowledges the value of the investor relationships that the Agent
shares with the City by presenting to the City a letter of interest or offer to purchase by
any such investor. The City agrees not to solicit, directly or indirectly, any such investor.
The City further agrees to compensate the Agent for any tax credit transaction that the
City closes on with any such investor for four years from the termination of this
Agreement. The compensation will be at the same rate as that used here.
5. MAINTENANCE OF FINANCIAL RECORDS. All records created pursuant to
this Agreement are to be retained and maintained by Agent for a period not less than
three (3) years from the end of the Agreement.
6. CITY LIAISON. Rod Irwin, Assistant City Manager, will serve as the City liaison
for Agent.
7. DISCLAIMER OF WARRANTIES. This Agreement constitutes the entire
understanding between the parties on the subject hereof and may not be changed,
modified, or discharged except by written amendment duly executed by both parties.
No representations or warranties by either party shall be binding unless expressed
herein or in a duly executed amendment hereof.
8. TERMINATION.
For Cause: Upon breach of this Agreement by a party, the other party will give written
notice of termination of this Agreement specifying the claimed breach and the action
required to cure the breach. If the breaching party fails to cure the breach within 14
days from the receipt of said notice, then the contract will terminate 30 days from receipt
of the written notice to terminate.
9. INDEMNIFICATIONS. Subject to the limits of §768.28, Florida Statutes, the
City and Agent agree to indemnify, defend and hold harmless each other and each
other's officers, directors, partners, controlled partnerships, representatives and agents
against losses, claims, damages or liabilities to which each such person may be subject
insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement, action, or omission by the other party of
a material fact or the omission to state a material fact required to be stated. This
indemnity shall include reimbursement of any legal or other expenses reasonably
incurred in connection with investigating or defending any such Toss, claim, damage,
liability or action, and shall be paid as such expenses are incurred.
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10. ARBITRATION. It is agreed that any dispute, controversy or question arising
under this Agreement shall be referred for decision by binding arbitration by a panel of
three arbitrators selected by the parties. The proceeding shall be held in Florida and
the proceeding shall be governed by the Rules of the American Arbitration Association
then in effect or such rules last in effect (in the event such Association is no longer in
existence). The costs of the arbitration will be borne by the parties equally. If the
parties are unable to agree upon arbitrators within thirty (30) days after either party has
given the other party written notice of its desire to submit the dispute, controversy or
question for decision, if such Association is not then in existence or does not desire to
act in the matter, each party shall appoint an arbitrator of its choice. The appointed
arbitrators will select a third arbitrator to hear the parties and settle the dispute,
controversy or question. Each party shall bear the costs of its own arbitrator, and the
costs of the third arbitrator shall be borne equally. Any administrative fees or costs
associated with the arbitration proceeding shall be borne equally by the parties.
Arbitration shall be the exclusive remedy for the settlement of disputes arising under this
Agreement. The decision of the arbitrator(s) shall be final, conclusive and binding, and
no action at law or in equity may be instituted by either party other than to enforce the
award of the arbitrator(s).
11. AUTHORITY. It is understood that Agent is an independent contractor and that
nothing herein shall be construed as creating a relationship of partners, joint venturers,
employer and employee or any other relationship between City and Agent.
12. CONFIDENTIAL INFORMATION. Except as otherwise required by Florida
Public Records Law, F.S.119 et. seq., the City agrees that the identity, investment
criteria, and any other information that Agent or the investor discloses to City
concerning an investor constitutes confidential information (the "Confidential
Information "), and City hereby agrees not disclose any Confidential Information to any
third party without prior written consent of Agent.
13. NOTICES. All written notices shall be sent to each party at the following
addresses on behalf of Fallbrook Credit Finance, LLC:
Josh Lederer, Vice President
Fallbrook Credit Finance, LLC
26610 Agoura Road, Suite #120
Calabasas, Cal 91302
(818) 657 -6103
Iderer @fallbrookcredits.com
Justin Gordon, MBA, Managing Director
Fallbrook Credit Finance, LLC
26610 Agoura Road, Suite #120
Calabasas, CA 91302
(818) 657 -6117
Gordon @fallbrookcredits.com
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(CITY)
Denise Sanderson
Assistant Director of Economic Development & Housing
City of Clearwater
Economic Development and Housing Department
112 S. Osceola Avenue
Clearwater, Florida 33756
Denise .sanderson @myclearwater.com
with a copy to:
Laura Mahony, Assistant City Attorney
112 S. Osceola Ave., Third Floor
Clearwater, FL 33756
All fees paid under this Agreement shall be paid to, and mailed or wired to:
Fallbrook Credit Finance LLC
26610 Agoura Road, Suite #120
Calabasas, CA 91302
14. SUCCESSORS 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 the prior written consent of the other party, which consent the other party
may give or withhold in its absolute discretion.
15. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be considered one and the same original.
16. APPLICABLE LAW. This Agreement shall be construed and enforced in
accordance with the laws of the State of Florida. Agent consents to the exclusive
jurisdiction of Florida courts with respect to all legal proceedings instituted by Agent or
City hereunder. Venue shall be exclusively in Pinellas County, Florida. If any
provisions of this Agreement shall be held invalid by a statute, rule, regulation, decision
of a tribunal or otherwise, the remainder of this Agreement shall not be affected, and, to
such extent, the provisions of this Agreement shall be severable.
17. EFFECTIVE DATE
The Effective Date of this Agreement shall be the 1I" day of JeP"`her
2015
IN WITNESS WHEREOF, the parties hereto have set their hands and seals as of
the dates indicated below.
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Agreement
Fallbrook Credit Finance LLC
Countersigned:
—c .LrLener&VV.,
George N. Cretekos
Mayor
Approved as to form:
�tl
Lau a Mahony
Assistant City Attorney
FALLBROOK CREDIT FINANCE, LLC
By:
J h Lederer, Vice President
Date:
CITY OF CLEARWATER, FLORIDA
By: W Lazu.t.,10
William B. Horne II
City Manager
Attest:
.k acAtak
Rosemarie CaII
City Clerk
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