HomeMy WebLinkAboutExhibitASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Assignment and
Assumption Agreement") is made as of December _, 2006 by and among Sarmiento
Advertising Group, L.L.C., a Florida limited liability company, whose principal address is 2610
N. Miami Avenue. Miami, Florida 33127 ("Assignor"), Fuel Miami LLC, a Delaware limited
liability company. whose principal address is 149 Fifth Avenue, Eleventh Floor, New York, New
York 10010 ("Assignee"), Assignee's parent company Fuel Outdoor Holdings, LLC, a Delaware
limited liability company, whose principal address is 149 Fifth Avenue, Eleventh Floor, New
York, New York 10010 ("Fuel Outdoor"), and the City of Miami, a Florida municipal
corporation whose principal address is 3500 Pan American Drive, Miami, Florida 33133-5595
(the "City").
WITNESSETH:
WHEREAS, on April 18, 2002, Assignor executed an Agreement for Bus Bench Design,
Installation and Maintenance with the City (the "Agreement") for the provision for five (5) years
of bus benches for use by the general public within the City; and
WHEREAS, subsequent amendments to the Agreement were executed by the City and
Assignor on September 18, 2002, February 27, 2003, August 18, 2003, and July 20, 2004
(collectively "Amendments" and the Agreement and the Amendments being further collectively
referred to as the -Concession Agreement"); and
WHEREAS, in addition to the Concession Agreement regarding bus benches, the City
and Assignor executed a Professional Services Agreement on July 28, 2004, for the maintenance
of City bus shelters (the "Services Agreement"); and
WHEREAS, pursuant to Section 3.2 of the Agreement, Assignor has the right to extend
the Agreement for an additional five (5) years upon giving notice to the City and Assignor has
previously given such notice to the City; and
WHEREAS, pursuant to Sections 9.3 and 10.8 of the Agreement, Assignor must request
prior approval and consent of the City Commission to approve the sale and transfer of one
hundred percent (100%) of Assignor's stock to Assignee; and
WHEREAS, Assignor and Assignee have requested such City Commission approval and
consent and pursuant to Resolution No. R-06-0665, adopted on November 9, 2006 (the "City's
Resolution") and the City has granted such approval and consent subject to the terms and
conditions of this Assignment and Assumption Agreement as set forth in the City's Resolution
attached hereto as Composite Exhibit A, as made a part hereof, and incorporated by this
Assignment and Assumption Agreement among the parties;
WHEREAS, the execution and delivery of this Assignment and Assumption Agreement
by Assignor, Assignee and Fuel Outdoor with the City is one of the conditions precedent to the
consent and approval of City Commission to certain transactions contemplated by the
}�M, embership Interest Purchase Agreement dated July 24, 2006 by and between Assignee, on the
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one hand, and Eduardo R. Terranova and Orlando R. Terranova (each a "Seller" and,
collectively, the "Sellers"), on the other hand (the "Purchase Agreement") and such other
conditions precedent as required by the City's Resolution are set forth below.
NOW. THEREFORE, for good and valuable consideration paid to Sellers by Assignee
pursuant to the Purchase Agreement, for good and valuable consideration from Assignor,
Assignee, and Fuel Outdoor for the City Commission's approval and consent, and in
consideration of the mutual covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties to this
Agreement hereby agree as follows:
1. Definitions. Capitalized terms used but not defined herein shall have the respective
meanings given to such terms in the Purchase Agreement and in the Concession Agreement.
�. Assignment of the Contracts. Assignor hereby sells, grants, transfers, contributes,
assigns, conveys and delivers to Assignee and to its successors and assigns free and clear of all
Liens, and Assignee hereby purchases, acquires and accepts from Assignor, all of Assignor's
right, title and interest in each of the Agreement, the Amendments and the Services Agreement
(the Services Agreement, together with the Concession Agreement being referred to herein
collectively as the "Assigned Contracts").
3. • Assumption of Liabilities. Assignor hereby sells, transfers, grants, contributes, assigns,
conveys and delivers, and Assignee hereby assumes and agrees to pay, perform and discharge
when due or required to be performed, all of the Liabilities relating to the Assigned Contracts
arising from and after the date hereof (the "Assumed Liabilities").
4. Retained Liabilities. Notwithstanding any other provision of this Agreement to the
contrary, Assignee does not hereby assume or agree to assume, pay, perform or discharge, and
shall have no responsibility with respect to any Liability or any liability or obligation of
Assignors other than the Assumed Liabilities (the "Retained Liabilities").
5. Further Assurances.
(a) Assignor agrees and covenants that Assignor will, whenever and as often as
reasonably requested to do so by Assignee or its successors and assigns and as often as
reasonably requested by the City and without further consideration, execute,
acknowledge and deliver such further instruments of sale, grant, transfer, contribution,
assignment, conveyance, assumption and delivery and such consents, assurances, powers
of attorney and other instruments and take such other actions as may reasonably be
necessary in order to vest in Assignee all right, title and interest in and to the Assigned
Contracts and to otherwise further effectuate and carry out the transactions contemplated
by this Assignment and Assumption Agreement, the Agreement, the Amendments, the
Services .Agreement, the City's Resolution, the Purchase Agreement and any -related
documents. including the retention by Assignor of the Retained Liabilities and the
assumption by Assignee of the Assumed Liabilities; provided that Assignor shall not be
obligated to incur any fees or expenses or make any payments other than (i)
adminisir:ative or ministerial fees, expenses or payments made in connection with
performance of its obligations under this paragraph 5(a) and (ii) the retention by Assignor
of the Retained Liabilities.
(b) Assignee agrees and covenants that it will, whenever and as often as reasonably
requested to do so by Assignor or its successors and assigns and as often as reasonably
requested by the City execute, acknowledge and deliver such further instruments of
assumption and take such other actions as may reasonably be necessary to otherwise
further effectuate the assumption by Assignee and its successors and assigns of the
Assumed Liabilities.
6. Retention of Assignee's Chief Executive Officer and Corporate Business Director.
Assignee and Fuel Outdoor hereby agree that Assignee shall retain for a minimum of three (3)
years with a six (6) month transition phase thereafter, Assignor's current Chief Executive Officer
and Corporate Business Director to continue working on the City's account.
7. Payment Bond. Performance Bond/Letter of Credit. and Insurance Requirements.
Assignee has provided a continuing payment bond payable to the City or a letter of credit upon
which the City can draw in the amount of $250,000 in form and substance satisfactory to the
City's Public Works Director and the City's Risk Management Director, a copy of which is
attached hereto as Exhibit B. Fuel Outdoor has provided a continuing performance bond payable
to the City or a later of credit upon which the City can draw in the amount of $250,000 in form
and substance satisfactory to the City's Public Works Director and the City's Risk Management
Director, a copy of which is attached hereto as Exhibit C. Assignee has provided to the City
continuing insurance as required by and in form and substance satisfactory to the City's Risk
Management Department, copies of the insurance certificate(s) for which are attached hereto as
Exhibit D.
8. No Further Assignment without Prior Written Consent of Parties.
This Assignment and Assumption Agreement shall not be further assigned without the express
written prior approvals and consents of the City Commission and of Assignee. The City's
approval and consent may be withheld or conditioned, in the City's sole discretion, by the City
Commission.
9. No Solicitation. Assignor, Assignee, and Fuel Outdoor represent to the City that
none of them has employed or retained any person or company employed by the City to solicit or
secure this Assignment and Assumption Agreement and that none of them has offered to pay,
paid, or agreed to pay any person any fee, commission, percentage, brokerage fee, or gift of any
kind contingent upon or in connection with the receipt of this Assignment and Assumption
Agreement.
10. Public Records. Assignor; Assignee and Fuel Outdoor understand and agree that
the public shall have access, at all reasonable times, to all documents and information pertaining
to City agreements including this Assignment and Assumption Agreement, subject to the
provisions of Chapter 119. Florida Statutes, and agree to allow access by the City and the public
to all documents subject to disclosure under applicable laws. The failure or refusal by any. of
Assignor, Assignee, and/or Fuel Outdoor to comply with the provisions of this section shall
result in the immediate cancellation of this Assignment and Assumption Agreement by the City.
11. Governance.
Notwithstanding any other provisions of this Assignment and Assumption Agreement to the
contrary, nothing contained in this Assignment and Assumption Agreement shall in any way
supersede, modify, replace, amend, change, rescind, waive, exceed, expand, enlarge or in any
way affect the provisions set forth in the Purchase Agreement except as required by the City's
Resolution as applicable, nor shall this Assignment and Assumption Agreement reduce, expand
or enlarge any remedies under the Purchase Agreement except as required in connection with the
City's Resolution as applicable. This Assignment and Assumption Agreement is intended only
to effect the assignment of the Assigned Contracts and the assumption of the Assumed Liabilities
concurrently with the transactions contemplated by the Purchase Agreement and by the City's
Resolution.
12. Counterparts.
This Assignment and Assumption Agreement may be executed in one or more counterparts, any
one of which need not contain the signatures of more than one person, but all such counterparts
taken together will constitute one and the same instrument.
13. Successors. This Assignment and Assumption Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs, legal representatives,
successors and assigns.
14. Governing Law. This Assignment and Assumption Agreement shall be construed and
enforced according to the laws of the State of Florida. Venue in any proceedings between. the
parties shall be in Miami -Dade County, Florida. Each party shall bear its own attorney's fees.
Each party waives any defense, whether asserted by motion or pleading, that the aforementioned
courts are an improper or inconvenient venue. Moreover, the parties consent - to the personal
jurisdiction of the aforementioned courts and irrevocably waive any objections to said
jurisdiction. The parties irrevocably waive any rights to a jury trial.
15. Notices. All notices or other communications required under this Assignment and
Assumption Agreement shall be in writing and shall be given by hand -delivery or by registered
or certified U.S. Mail, return receipt requested, addressed to the other party at the address
indicated herein or to such other address as a party may designate by notice given herein
provided. Notice shall be deemed given on the day on which personally delivered; or if by U.S.
Mail, on the filth day after being posted or the date of actual receipt, whichever is earlier.
To the City:
City Manager
City of Miami
444 S.W. 2" d Avenue, loth Floor
'Miami, Florida 33130
With conies to:
Director of Public Works
City of Miami
444 S.W. 2" � Avenue, 3`1 Floor
Miami, Florida 33130
and
City Attorney
City of Miami
444 S.W. 2" d Avenue, Suite 945
Miami, Florida 33130
To Sarmiento:
Sarmiento Advertising Group, L.L.C.
2610 N. Miami Avenue
Miami, Florida 33 127
To Fuel:
Fuel Miami LLC
149 Fifth Avenue
Eleventh Floor
New York, New York 10010
Attention: Management Committee
To Fuel Outdoor:
Fuel Outdoor Holdings, LLC
149 Fifth Avenue
Eleventh Floor
New York, New York 10010
Attention: Management Committee
With copies to:
Joshua N. Korff. Esq.
Kirkland & Ellis LLP
153 E. 53"I Street
New York, New York 10022
16. Miscellaneous.
A. No waiver or breach of any provision of this Assignment and Assumption
Agreement shall constitute a waiver of any subsequent breach of the same or any other provision
hereof, and no N\aiver shall be effective unless made in writing.
13. Should any provision, paragraph, sentence, word or phrase contained in this
Assignment and Assumption Agreement be determined by a court of competent jurisdiction to be
invalid, illegal or otherwise unenforceable under the laws of the State of Florida or the City of
Miami, such provision, paragraph, sentence, word or phrase shall be deemed modified to the
extent necessary in order to conform with such laws, or if not modifiable, then the same shall be
deemed severable, and in either event, the remaining terms and provisions of this Assignment
and Assumption Agreement shall remain unmodified and in full force and effect or limitation of
its use.
17. Limited Liability Company Authorizations.
The respective limited liability company authorizations of Assignor, Assignee, and Fuel Outdoor
to each enter into this Assignment and Assumption Agreement are hereby attached and
incorporated herein as respective Exhibits E, F, and G.
* * *
IN WITNESS WHEREOF, the parties hereto have executed this Assignment and Assumption
Agreement on the date first written above.
,�✓-� ,
By:
Name: Vi5
65 61401
Title:
Witness: )
By: I 014 :�././.'
Name: (0' et p c.. h.q5
Title:
SARMIENTO VERTISING GROUP, L.L.C.
Name: Mari•. Guillermo Victoria
a/k/a Guillermo Victoria
Title: Authorized Officer
STATE OF FLORIDA
) SS.
COUNTY OF MIAMI DADE
The foregoing instrument was acknowledged before me this vt. day of DECEMBER, 2006 by
MARCOS GUILLERMO VICTORIA a/kla GUILLERMO VICTORIA, who is personally
known to me, or has produced , as identification and she
acknowledged before me that he executed the same, freely and voluntarily, for the purposes
therein expressed.
et‘ P Notary public State of Florida
x° Maria -.Jose Lopez
My Cchmnssion 0D373825
Notary Public, State of" r\ •��.
Commission No. -,r17� 3 8zs
IN WITNESS WHEREOF, the parties hereto have executed this Assignment and Assumption
Agreement on the date first written above.
Attest:
By:
Name:
Title: CFC%
LcL.1c,i(ee.
FUEL MIAMI, LLC
By:
Name: Michael A. Freedman
Title: Chief Executive Officer
FUEL OUTDOOR HOLDINGS, LLC
Attest:
By: ,.� By:
Name: •Zc r i 1.-K L)*— I I - = Name: Michael A. Freedman
Title: C, tom? Title: Chief Executive Officer
IN WITNESS WHEREOF, the parties hereto have executed this Assignment and Assumption
Agreement on the date first written above.
Attes
By:
Name; Priscilla A. Thompson
Title: City Clerk
CITY OF MIAMI, a Florida municipal
Corpo
By:
Name: Pedro G. Hernandez
Title: City Manager
l`G
Approved as to Insurance Requirements: Approved as to Form and Correctness:
By• By:
Name: LeeAnn Brehm Name: for
L Fern
Title: Risk Management Director Title: City Attorney
Note: All Exhibits to be attached at time of document execution
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