Resolution 2021-31574 RESOLUTION NO. 2021-31574
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, APPROVING, IN SUBSTANTIAL FORM, THE
AGREEMENT OF SALE AND ASSIGNMENT, BETWEEN THE CITY (SELLER)
AND J.B. HUNT TRANSPORT, INC. (PURCHASER), FOR THE SALE OF
FLORIDA VOLUNTARY CLEANUP TAX CREDITS, IN THE AMOUNT OF ONE
HUNDRED THIRTY-FIVE THOUSAND TWO HUNDRED FORTY DOLLARS
AND EIGHTY SEVEN CENTS ($135,240.87), RELATING TO THE
BROWNFIELD SITE REHABILITATION PROJECT HAVING FDEP FACILITY
ID #BF131805001; AND FURTHER AUTHORIZING THE CITY MANAGER TO
EXECUTE THE FINAL AGREEMENT AND ANY OTHER AGREEMENTS OR
DOCUMENTS REQUIRED TO CONSUMMATE THE TRANSACTION.
WHEREAS, a brownfield site is defined as Florida Statutes § 376.79(4) to mean the real
property, the expansion, redevelopment, or reuse of which may be complicated by actual or
perceived environmental contamination; and
WHEREAS, a brownfield area is defined as Florida Statutes § 376.79(5) to mean a
contagious area of one or more brownfield sites, some of which may not be contaminated, and
which has been designated by a local government resolution; and
WHEREAS, the State of Florida has provided, in § 97-277, Laws of Florida, which is
codified at Florida Statutes §§ 376.77 — 376.85 ("Brownfields Redevelopment Act"), for the
designation by resolution of certain contiguous areas consisting of one or more brownfield sites
as "Brownfields Areas," for the purpose of encouraging "rehabilitation" (including remediation),
job creation, and economic development; and
WHEREAS, on November 14, 2018, the City Commission adopted Resolution No. 2018-
30611, designating the real property located at 340 23rd Street and 2200 Liberty Avenue, Miami
Beach, Florida 33139, as a brownfield area pursuant to Florida Statutes Section 376.80(2)(a),
allowing eligible costs incurred within subsequent fiscal years to be eligible for Voluntary
Cleanup Tax Credits; and
WHEREAS, in January, 2021, the City retained Fallbrook Tax Credits LLC (Fallbrook),
an experienced placement agent of Voluntary Clean-up Tax Credits, to sell Florida Voluntary
Cleanup Tax Credits, in the amount of One Hundred Thirty-Five Thousand Two Hundred Forty
Dollars and Eighty Seven Cents ($135,240.87), relating to the Collins Park Garage brownfield
area designation (FDEP facility ID#BF131805001) ("Tax Credits"); and
WHEREAS, Fallbrook has negotiated the sale of the Tax Credits to J.B. Hunt Transport,
Inc. (Buyer), for the total price of $125,097.80, based upon a value of $0.925 per Dollar of Tax
Credits ("Purchase Price"), which after paying Fallbrook the Placement Fee of $1,690.51, will
net the City a total of$123,407.29; and
WHEREAS, the Administration recommends approving, in substantial form, the
Agreement of Sale and Assignment of Florida Voluntary Cleanup Tax Credits, attached to this
Resolution as Exhibit "A", and authorizing the City Manager to execute the final negotiated
agreement, and any other agreements or documents required to consummate the transaction,
subject to review and form approval by the City Attorney.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City
Commission hereby approve, in substantial form, the Agreement of Sale and Assignment,
between the City (Seller) and J.B. Hunt Transport, Inc. (Purchaser), for the sale of Florida
Voluntary Cleanup Tax Credits, in the amount of One Hundred Thirty-Five Thousand Two
Hundred Forty Dollars and Eighty Seven Cents ($135,240.87), relating to the brownfield site
rehabilitation project having FDEP facility ID #BF131805001; and further authorize the City
Manager to execute the final agreement and any other agreements or documents required to
consummate the transaction.
PASSED and ADOPTED this 10 day of February, 2021.
ATTEST:
72( Dan Gelber, Mayor
Z 2 7m
Rafael E. Granad Cit Clerk ,,,,,,,,,
It•1CORP OORATED
• .\
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
I —)-1 -2J
City Attorney 4J 1/1Date
Resolutions -C7 F
MIAMI BEACH
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Raul J.Aguila, Interim City Manager
DATE: February 10, 2021
SUBJECT:A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA,APPROVING, THE SALE AND ASSIGNMENT
BETWEEN THE CITY (SELLER) AND J.B. HUNT TRANSPORT, INC.
(PURCHASER), FOR THE SALE OF FLORIDA VOLUNTARY CLEANUP TAX
CREDITS, IN THE AMOUNT OF ONE HUNDRED THIRTY-FIVE THOUSAND
TWO HUNDRED FORTY DOLLARS AND EIGHTY-SEVEN CENTS
($135,240.87), RELATING TO THE COLLINS PARK GARAGE
BROWNFIELD SITE REHABILITATION (PROJECT HAVING FDEP
FACILITY ID #BF131805001); AND FURTHER AUTHORIZING THE CITY
MANAGER TO EXECUTE THE FINAL AGREEMENT AND ANY OTHER
AGREEMENTS OR DOCUMENTS REQUIRED TO CONSUMMATE THE
TRANSACTI ON.
RECOMMENDATION
Adopt the Resolution.
BACKGROUND/HISTORY
The purpose of Florida's Brownfields Redevelopment Act is to reduce public health and
environmental hazards on existing sites and create financial incentives to encourage voluntary
cleanup and redevelopment of sites.
On September 6, 2018 the contractor for the Collins Park Garage project uncovered five
underground storage tanks during construction that require removal, as well as contamination
assessment and remediation.
On November 14, 2018,the City Commission adopted Resolution No. 2018-30611,
designating the real property located at 340 23 Street and 2200 Liberty Avenue (Collins Park
Garage)as a Brownfield Area pursuant to Florida Statutes Section 376.80(2)(a), allowing
eligible costs incurred within subsequent fiscal years to be eligible for Voluntary Cleanup Tax
Credits.
The Voluntary Cleanup Tax Credits program was created to encourage participants to conduct
voluntary cleanup of designated Brownfield Areas. Under this program, the City can recuperate
a percentage of remediation costs through the program. In 2018, the City incurred $135,240.87
Page 292 of 1252
of remediation costs for the Collins Park Garage project, that are eligible to be sold as part of
the Voluntary Cleanup Tax Credits program.
In January 2021, the City retained Fallbrook Tax Credits LLC to sell eligible Voluntary Cleanup
Tax Credits for the Collins Park Garage to J.B. Hunt Transport, Inc., for the total price of
$125,097.80, based upon a value of$.0925 per dollar of tax credit("purchase price"), which,
after paying Fallbrook the Placement fee of$1,690.51, the City will net a total of$123,407.29.
SUPPORTING SURVEY DATA
N/A.
FINANCIAL INFORMATION
The City will be receiving a positive $123,407.29 for this transaction.
CONCLUSION
The Administration requests that the Mayor and City Commission approve the sale and
assignment and any other agreements or documents required to consummate the transaction,
between the Seller and Purchaser for the sale of Florida Voluntary Cleanup Tax Credits, in the
amount of One Hundred Thirty-Five Thousand Two Hundred Forty Dollars and Eighty Seven
Cents ($135,240.87)relating to the Collins Park Garage Brownfield site rehabilitation project.
Applicable Area
Not Applicable
Is this a "Residents Right Does this item utilize G.O.
to Know" item, pursuant to Bond Funds?
City Code Section 2-14?
Yes No
Strategic Connection
Non-Applicable
Legislative Tracking
Environment and Sustainability
ATTACHMENTS:
Description
o Resolution
Page 293 of 1252
AGREEMENT OF SALE AND ASSIGNMENT OF
FLORIDA VOLUNTARY CLEANUP TAX CREDITS
This Agreement of Sale and Assignment of Florida Voluntary Cleanup Tax Credits (the
"Agreement"), effective as of February 2021 (the "Effective Date"), is entered into by and
among CITY OF MIAMI BEACH, a Florida municipal corporation ("Seller") and J.B. HUNT
TRANSPORT, INC., a Georgia corporation("Purchaser").
WHEREAS, the Seller has received a Tax Credit Certificate from the Florida Department
of Environmental Protection("FDEP")through the Florida Voluntary Cleanup Tax Credit program
in the amount of One Hundred Thirty-Five Thousand Two Hundred Forty Dollars.and Eighty-
Seven Cents (S 135,240.87) (the "Tax Credits") related to and incurred in expenses regarding a
Brownfield site rehabilitation project having FDEP Facility ID # BF131805001 (the "Cleanup
Site"). Voluntary Cleanup Tax Credit Certificate Number 1106 is attached hereto as Exhibit"A".
NOW,THEREFORE, the participants hereto agree as follows:
1. Effective as of the Closing Date(hereinafter defined),Seller hereby agrees to transfer, sell,
assign and deliver to Purchaser all of its right, title and interest in and to the Tax Credits
granting full power to the Purchaser to use the Tax Credits and to effect, in the name of the
Purchaser individually, all legal rights as Seller may have held with respect to the Tax
Credits sold and assigned to the Purchaser.
2. In consideration of Seller's transfer, sale, assignment and delivery of the Tax Credits
hereunder, the Purchaser hereby agrees to pay to Seller One Hundred Twenty-Five
Thousand Ninety-Seven Dollars and Eighty Cents($125,097.80),which is equal to Ninety-
Two and One-Half Cents (50.925) per Dollar ($1.00) of the Tax Credits (the "Purchase
Price"), on the Closing Date.
3. The closing in connection with the transfer of the Tax Credits from Seller to Purchaser will
be deemed to have occurred the date that Seller receives the Purchase Price from Purchaser
(the "Closing Date"). Within five (5) business days of the Effective Date, the Purchaser
and/or Seller will execute such other documentation that may be reasonably necessary
and/or required by the State of Florida to transfer the Tax Credits and for the Purchaser to
utilize the Tax Credits (the "Transfer Documents") and Seller shall submit the Transfer
Documents to the FDEP to transfer the Tax Credits to Purchaser. Purchaser agrees to pay
to Seller the Purchase Price within five (5) business days of Purchaser receiving
notification from Seller that Seller has received the original of the Re-issued Tax Credit
Certificate(the"Re-issued Tax Credit Certificate") from FDEP and such notification shall
include a copy of the Re-issued Tax Credit Certificate. Purchaser and Seller agree that an
electronic version or copy of the Re-issued Tax Credit Certificate in a form substantially
similar to Exhibit A shall be sufficient to satisfy the receipt requirement of this Section 3.
Until the Closing Date, Purchaser will have no right to use the Tax Credits, including the
Re-issued Tax Credit Certificate, and Seller will remain the beneficial owner thereof.
Purchaser shall pay the Purchase Price to Seller via wire transfer which will be provided
separately at the time payment is due..
EXHIBIT
n
§Page 29Df 1252
4. Representations, Warranties and Covenants.
4.1 Mutual Representations and Warranties. Each party hereto represents and warrants
to the other party hereto as follows:
(a) Organization; Power. If such party is a legal entity, such party is duly
organized and validly existing and in good standing under the laws of its state of
organization. Such party has all requisite power and authority to execute and
deliver this Agreement and all other documents necessary to effectuate the transfer
of the Tax Credits, and to carry out and perform the provisions of this Agreement
and such other documents.
(b) Authorization. All action on the part of such party and such party's
shareholders and directors (as applicable) necessary for the authorization,
execution, and delivery of this Agreement has been taken.
(c) Binding Effect. This Agreement, when executed and delivered by a party,
will constitute a valid and binding obligation of such party, enforceable in
accordance with its terms, except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors' rights generally and (ii) as limited by laws
relating to the availability of specific performance, injunctive relief or other
equitable remedies.
4.2 Seller Representations, Warranties and Covenants. To the best of its knowledge
and belief, Seller represents, warrants and covenants to Purchaser as follows:
(a) 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 Credits to any person other than Purchaser. 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; (ii) it has not taken any action in connection with the Cleanup
Site which prevents Purchaser 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; and (iii) it has complied with, and will comply with, the Florida
statutes, rules and regulations related to the Tax Credits and any applicable
directive, procedure, release, ruling or other written guidance explaining or
interpreting the Tax Credits.
(b) The execution, delivery and performance of this Agreement by Seller will
not, directly or indirectly (with or without notice or lapse of time), constitute a
breach or violation of or a default under (i) any statute, law, rule, regulation,
judgment or order, (ii) Seller's charter, limited liability company or member
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agreement or any other organizational document of it, or (iii) any agreement to
which Seller is a party or bound.
(c) No action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Seller,its property, its subsidiaries
or the project that generated the Tax Credit is pending or, to the best knowledge of
the Seller, threatened that could be expected to have an adverse effect on Seller's
performance of this Agreement or prevent the consummation of the transactions
contemplated hereby.
(d) No consent, approval, authorization, filing with or order of any court or
governmental agency or body is required in connection with the transactions
contemplated by this Agreement, except such as have been obtained or will be
obtained prior to the Closing Date in connection with the transfer of the Tax Credits
to Purchaser.
4.3 No Warranty as to Use. Seller specifically disclaims any warranty of use of the
Tax Credits including, but not limited to, reduction of the Purchaser's Florida
corporate tax liability.
4.4 Purchaser Representations, Warranties and Covenants. Purchaser represents
warrants and covenants to Seller as follows:
(a) Tax Advisors. Purchaser has reviewed with its own tax advisors the federal
and state tax consequences of the transfer of the Tax Credits,the application of such
Tax Credits as a credit against Purchaser's tax liability and the eligibility of
Purchaser to utilize the Tax Credits. In determining whether or not to execute and
deliver this Agreement, Purchaser relies solely on the advice of such advisors and,
except for the representations, warranties and covenants of the Seller in this
Agreement,not on any statements or representations of Seller or any of its affiliates,
subsidiaries, partners, members, shareholders, managers, principals, officers,
directors, employees, representatives, agents or other persons in similar positions
(collectively,the"Released Parties").
5. Indemnification. If a court or state agency of competent jurisdiction makes a determination
as to the validity of the tax credits that reduces the Tax Credits and requires Purchaser to
repay the amount of the reduction, except for (i) a determination based on Purchaser's
Florida tax liability withoutregard to the validity of the Tax Credits or(ii) resulting from
any act or omission of Purchaser, then Seller shall, within 14 business days after the court
or state agency makes the determination,make a payment to Purchaser in an amount equal
to(i)92.5%of the amount of the reduction and(ii) any interest and penalties imposed that
are attributable to the reduction. Seller, however, shall have the right, with Purchaser's
reasonable cooperation if necessary or required to effectuate a challenge and/or an appeal,
and before making this payment,to challenge and/or appeal the determination made by the
court or state agency as the case may be at Seller's expense. If Seller is unsuccessful in
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the challenge and/or appeal, Seller shall make the payment to Purchaser within 14 business
days after the date when the final determination is made on the challenge and/or appeal.
To the extent permitted by law, and subject to the limitation on the City's liability,
as set forth in Section 768.28, Florida Statutes, Seller shall indemnify, defend and hold
harmless Purchaser and its affiliates and their respective directors,officers,employees,and
representatives (including without limitation any successor to any of the foregoing) from
and against any and all claims, demands, actions, suits and proceedings, and any
settlements or compromises relating thereto and reasonable attorneys' fees and expenses
in connection therewith, and any losses,liabilities, costs and expenses relating to,resulting
from or arising out of (i) any breach of its representations, warranties, covenants, or
agreements contained in this Agreement, or (ii) the failure of Seller to comply with any
applicable law that may be applicable in connection with the transfer of the Tax Credits to
Purchaser. Nothing contained in this Agreement shall be interpreted as a waiver,by Seller,
of its sovereign immunity rights pursuant to Florida Statute Section 768.28.
Purchaser shall indemnify, defend and hold harmless Seller and its affiliates and
their respective directors, officers, employees, and representatives (including without
limitation any successor to any of the forgoing) from and against any and all claims,
demands, actions, suits and proceedings, and any settlements or compromises relating
thereto and reasonable attorneys' fees and expenses in connection therewith, and any
losses, liabilities, costs and expenses relating to, resulting from or arising out of(i) any
breach of Purchaser of any representation, warranty, covenant, or agreement contained in
this Agreement, or(ii)the failure of Purchaser to comply with any applicable law that may
be applicable in connection with the transfer of the Tax Credits to Purchaser.
6. [Intentionally left blank]
7. Termination. This Agreement may be terminated by Purchaser if there is a breach of any
representation, warranty, covenant or obligation of Seller contained in this Agreement and
such breach shall not have been cured within ten (10) days after the delivery of notice
thereof to Seller. This Agreement may be terminated by Seller if there is a breach of any
representation, warranty, covenant or obligation of Purchaser contained in this Agreement
and such breach shall not have been cured within ten (10) days after the delivery of the
notice thereof to Purchaser.
Notwithstanding anything to the contrary in this Agreement, either Seller or
Purchaser may elect to terminate this Agreement in the event that the Closing Date does
not occur on or before April 15, 2021. In the event this agreement is terminated under this
provision, the parties agree to cooperate in order to return all documentation to Seller and
place the parties back to the position they were in prior to entering this Agreement.
If this Agreement is terminated, all further obligations of the parties under this
Agreement shall terminate; provided, however, that no party shall be relieved of any
obligation or other liability arising from any breach by such party of any provision of this
Agreement.
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Page 299 of 1252
The termination rights provided in this Section 7 shall not be deemed to be
exclusive. Accordingly, the exercise by the parties hereto of their respective right to
terminate this Agreement pursuant to this Section 7 shall not be deemed to be an election
of remedies and shall not be deemed to prejudice, or to constitute or operate as a waiver of,
any other right or remedy that the parties may be entitled to exercise (whether under this
Agreement, under any other contract,under any statute,rule or other legal requirement, at
common law, in equity or otherwise).
Notwithstanding this Section 7, this Agreement may not be terminated after the
transactions contemplated hereby have been consummated.
8. All parties hereto acknowledge that they have read and understand the contents of this
Agreement and acknowledge that no promise or representation has been made to them by
any of the parties hereto or anyone acting for them except as is expressly stated herein and
that they execute this document knowingly, voluntarily and as their own free act and deed.
9. This Agreement shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns.
10. No party shall assign or otherwise transfer its rights or obligations under this Agreement
except with the prior written consent of the other party.
11. No third party is entitled to rely on any of the representations, warranties and agreements
contained in this Agreement. The parties assume no liability to any third party because of
any reliance on the representations, warranties and agreements contained in this
Agreement.
12. This Agreement constitutes the entire agreement among the parties and contains all of the
agreements between the parties with respect to the subject matter. This Agreement
supersedes any and all other agreements, either oral or written, between the parties with
respect to the subject matter addressed by this Agreement.
13. If any provision of this Agreement is found to be illegal or unenforceable, the other
provisions shall remain effective and enforceable to the greatest extent permitted by law.
14. This Agreement shall be governed by and construed in accordance with the laws of the
State of Florida, without giving effect to principles or rules regarding conflicts of laws.
15. This Agreement may be executed in several counterparts,each of which will be deemed an
original, but all of which will constitute one and the same agreement.
16. No change or modification to this Agreement shall be valid unless made in writing and
signed by all the parties to this Agreement.
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Page 300 of 1252
17. No failure on the part of any person or entity to exercise any power, right, privilege or
remedy under this Agreement,and no delay on the part of any person or entity in exercising
any power, right, privilege or remedy under this Agreement, shall operate as a waiver of
such power, right,privilege or remedy;and no single or partial exercise of any such power,
right, privilege or remedy shall preclude any other or further exercise thereof or of any
other power, right, privilege or remedy. No person or entity shall be deemed to have
waived any claim arising out of this Agreement, or any power, right, privilege or remedy
under this Agreement, unless the waiver of such claim, power, right, privilege or remedy
is expressly set forth in a written instrument duly executed and delivered on behalf of such
person or entity; and any such waiver shall not be applicable or have any effect except in
the specific instance in which it is given.
18. Any notice to be given or served upon any party to this Agreement must be in writing,
unless otherwise indicated,and shall be deemed to have been given(a)upon receipt, in the
event of personal service by actual delivery (including by facsimile or delivery service);
(b)upon posting, if deposited in the United States mail with proper postage and dispatched
by certified mail; or(c)upon receipt, if notice is given other than by personal service or by
certified mail. All notices shall be given to the parties at the following addresses:
If to Seller:
Elizabeth Wheaton
Director, Environment& Sustainability Department
City of Miami Beach
1700 Convention Center Drive
3rd Floor
Miami Beach, FL 33139
If to Purchaser:
Juli Dorrough
Vice President,Tax
J.B.Hunt Transport,Inc.
615 J.B. Hunt Corporate Drive
Lowell,AR 72745
[Signature Page Follows]
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Page 301 of 1252
WHEREFORE,the parties have made this Agreement effective the day and year first above
written.
Purchaser: Seller:
J.B. HUNT TRANSPORT, INC. CITY OF MIAMI BEACH
By: By:
Name: Juli Dorrough Name: Raul J. Aguila
Its: Vice President,Tax Its: Interim City Manager
Witness: Attest:
Rafael E. Granado, City Clerk
Print Name:
Date: Date:
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Page 302 of 1252
EXHIBIT A
E101248
.,
VoluntaryCleanup Tax Credit _..._.
. . ..
. .
. . .
. ,
.. .. ,
. .
. .
C ....
ertificate . • ._.
This .certificate is issued pursuant to Section 376.30781, Florida .
Statutes (F.S.),to City of Miami Beach,#59-6000372, in the amount ,
of $135,240.87, to be applied toward Corporate Income Tax
pursuant to s. 220.1845, F.S.
i
.
2. Lao credit certificates are transferable punuant to Section 220.165,F.S.A tan credit certificate holder seeking to transfer the certificate to one or more indis id oats
•• or entities shall submit the original certificate to the Dena rtment'sDivision ofWaste Management inTallahats o slangutthasignedandnotarizedletterauthuriatng
' the transfer.The leiter shall state the name,address.telephone number,and FE1D or Sadat Security number.as applicable.of each transferee.and it shall indicate l
the portion fin whole ur in units of no tea than 251)to be transferred.Such transferred credits ma)nut be transferred again,although they may succeed to a
surviving or acquiring entity after merger or acquisition.
Ti m J. Digitally signed by ' .
Centfrcate Numhc .1105 - Tim J.Bahr
' . il)i.l'F'taal Year Iuo.ed 2020-2021 Bahr Date:2020.07.16
Cahr::r'Amr 2018 •Issued by:
• 11:22:34 04'00'
Site Ope BF (Aniltori,od MEP sigrnUuc) .•
•
FDEPYotilin IDP- BF131805001
• VCI'C AppGwtioit a 1077 - .
•8
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