Loading...
HomeMy WebLinkAboutExhibitDraft ASSIGNMENT AND ASSUMPTION AGREEMENT This ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Assignment and Assumption Agreement") is made as of , 2007 by and among .BFI Waste Systems of North America, Inc. , a Delaware corporation, whose principal address is 15880 North Greenway-Hayden Loop, Suite 100, Scottsdale, Arizona 85260 and whose local address is 3840 Northwest 371h Court, Miami, Florida 33142 ("Assignor"), Waste Services of Florida, Inc. , a Delaware corporation, whose principal address is 5002 T-Rex Avenue, Suite 200, Boca Raton, Florida 33431 ("Waste Services of Florida" and "Assignee"), Assignee's parent company Waste Services, Inc., a Delaware corporation , whose principal address is 5002 T-Rex Avenue, Suite 200, Boca Raton, Florida 33431 ("Parent Company" and "Assignee") (Waste Services of Florida and its Parent Company being referred to collectively hereinafter as "Assignee"), and the City of Miami, a Florida municipal corporation whose principal address is 3500 Pan American Drive Miami , FL 33133-5595 (the "City") on behalf of its Department of Solid Waste whose address is 1290 N.W. 20th St. Miami , FL 33142 (the "Department"). WITNESSETH: WHEREAS, Chapter 22 of the Code of the City of Miami, Florida ("City"), .as amended (the "Code") regulates non-exclusive franchises for Commercial Solid Waste services; and WHEREAS, the City Commission pursuant to Resolution No. R-04-0496, adopted July 22, 2004 (the "Authorizing Resolution") attached hereto, incorporated hereby, and made a part hereof as Exhibit A, authorized the City Manager to execute a non-exclusive Commercial Solid Waste Franchise Agreement (the "Franchise Agreement") with Assignor as one of the qualified responders to the City's RFQ No. 03- 04-107 (the "RFQ"); and WHEREAS, the City Commission pursuant to Ordinance No. 12599 and Resolution No. R-04-0672, both adopted October 14, 2004, both attached hereto, incorporated hereby, and made a part hereof as composite Exhibit B, authorized an Addendum to the Franchise Agreement (the "Addendum") and Assignor subsequently entered into the Addendum with the City; and WHEREAS, as of October 1, 2004, Assignor executed a non-exclusive Commercial Solid Waste Franchise Agreement with the City (the "Franchise Agreement") for the provision of commercial solid waste services within the City ; and WHEREAS, the City and Assignor executed subsequent amendments to the Franchise Agreement through the Addendum as of October 14, 2004, the original Franchise Agreement and Addendum being attached hereto, incorporated hereby and made a part hereof as composite Exhibit C ; and Revised Draft for Legislation 1 WHEREAS, the City has been advised of the sale of Assignor to Waste Services of Florida and its Parent Company; and WHEREAS, pursuant to Section 13.1 of Article XIII "Assignability" of the Franchise Agreement, Assignor has provided all required reports and letters to the Director of the Department and Assignor has certified that it has no outstanding balances due to the City and it is in complete compliance with the Franchise Agreement and the Addendum; and WHEREAS, the Department has found Assignor to be in complete compliance with the Franchise Agreement and the Addendum and has recommended (1) that the assignment of the Franchise Agreement and Addendum from Assignor to Waste Services of Florida and its Parent Company is in the best interests of the City, and (2) that Assignor, Waste Services of Florida and its Parent Company enter into this Assignment and Assumption Agreement; and WHEREAS, Assignor, Waste Services of Florida, and its Parent Company have requested the City Commission's approval of the assignment as required by Section 13.1 of the Franchise Agreement and Assignor, Waste Services of Florida, and its Parent Company have provided the Department with all of the requirements of the RFQ; and WHEREAS, on March , 2007, the City Commission adopted Resolution No. R-07- , attached hereto, incorporated hereby, and made a part hereof as Exhibit D, authorizing the City Manager to execute this Assignment and Assumption Agreement and a new franchise agreement and addendum under the terms and conditions required by the previous City Resolution No. R-04-0496 and Resolution No. R-04-0672 described above, the Ordinance No. 12599 described above,and Resolution 07- (collectively, the "City's Resolutions"); and WHEREAS, the execution and delivery of this Assignment and Assumption Agreement by Assignor, Assignee and Parent Company with the City is one of the conditions precedent to the consent and approval of City Commission to certain transactions contemplated by the Sale and Purchase Agreement to be dated 200_ by and between the Parent Company, on the one hand, and by Assignor's parent company Allied Waste Industries, Inc., E Leasing Company , LLC, S Leasington Company, LLC (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 Resolutions, the RFQ, the Franchise Agreement, and the Addendum 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 Parent Company 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: Revised Draft for Legislation 2 1. Definitions, Recitals, and Incorporations. Capitalized terms used but not defined herein shall have the respective meanings given to such terms in the Franchise Agreement, the Addendum, the RFQ, and in the Purchase Agreement. The Recitals and all statements contained therein and all Exhibits and Attachments hereto, are true and correct and are hereby expressly incorporated into and made a part of this Agreement. 2. 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, titleand interest in each of the Franchise Agreement and the Addendum (the Franchise Agreement, the Addendum, and the Purchase 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. 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 Franchise Agreement, the Addendum, the City's Resolutions, the RFQ, the Purchase Agreement, any future City amendments to the Franchise Agreement and/or the Addendum; and any related documents, including the retention by Assignor of the any 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) administrative or ministerial fees, expenses or payments made in connection with performance of its obligations under this paragraph 4(a) and (ii) the retention by Assignor of any 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 and without further consideration, execute, acknowledge and deliver such further instruments of sale, grant, transfer, contribution, assignment, conveyance, assumption and delivery Revised Draft for Legisialion 3 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 Franchise Agreement, the Addendum, the , City's Resolutions, the RFQ, the Purchase Agreement, any future City amendments to the Franchise Agreement and/or the Addendum; and any related documents, including the retention by Assignor of the any retained liabilities and the assumption by Assignee of the Assumed Liabilities. 5. Financial and Insurance Requirements. Assignee has provided any and all financial requirements and continuing insurance requirements required by the RFQ, the Franchise Agreement, and the Addendum satisfactory to the City's Solid Waste Director and the City's Risk Management Director, a copy of which is attached hereto as composite Exhibit E. 6. 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. 7. No Solicitation. Assignor, Waste Services of Florida, and its Parent Company 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. 8. Public Records. Assignor, Waste Services of Florida and its Parent Company 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 Parent Company to comply with the provisions of this section shall result in the immediate cancellation of this Assignment and Assumption Agreement by the City. 9. 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 Resolutions and the RFQ, as applicable, nor shall this Assignment and Assumption Agreement reduce, expand or Revised Drafi for Legislation 4 enlarge any remedies under the Purchase Agreement except as required in connection with the City's Resolutions and the RFQ 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, the Franchise Agreement, the Addendum, and by the City's Resolutions and the RFQ. 10. 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. 11. 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. 12. 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, 13. 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 fifth day after being posted or the date of actual receipt, whichever is earlier. To the City: City Manager City of Miami 444 S.W. 2nd Avenue, loth Floor Miami, Florida 33130 With copies to: Director, Solid Waste Department City of Miami 1290 N.W. 20th St. Miami , FL 33142 Revised Draft for Legislation 5 AND: City Attorney City of Miami 444 S.W. 2"d Avenue, 9th Floor Miami, Florida 33.130 To Assignor: BFI Waste Systems of North America, Inc. 15880 North Greenway-l-!ayden Loop, Suite 100 Scottsdale, Arizona 85260 AND TO: BFI Waste Systems of North America, Inc. 3840 Northwest 37th Court Miami, Florida 33142 To Waste Services of Florida: Waste Services of Florida, Inc. 5002 T-Rex Avenue, Suite 200 Boca Raton, Florida 33431 To Parent Company: Waste Services, Inc. 5002 T-Rex Avenue, Suite 200 Boca Raton, Florida 33431 With copies to their Counsel: Alan L. Gabriel, Esq. Weiss Serota Helfman Pastoriza Cole & Boniske, P:.A. 200 East Broward Boulevard, Suite 1900 Ft. Lauderdale, Flroida 33301 Revised Draft for Legislation 6 14. 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 waiver shall be effective unless made in writing. B. 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. 15. Corporate Authorizations. The respective corporate authorizations of Assignor, Assignee, and Parent Company to each enter into this Assignment and Assumption Agreement are hereby attached and incorporated herein as respective Exhibits F, G, and H. IN WITNESS WHEREOF, the parties hereto have executed this Assignment and Assumption Agreement on the date first written above. Assignor: BFI Waste Systems of North America, Inc., A Delaware corporation Attest: By: By: Name: Name Title: Title: Attest: Assignee: Waste Services of Florida, Inc. By: A Delaware corporation Name: By: Title: Name: Title: Attest: Assignee: Waste Services, Inc. By: A Delaware corporation Name: By: Title: Name: Title: Revised Draft for Legislation 7 CITY OF MIAMI, a Florida municipal corporation Attest: By: By: Pedro G. Hernandez, City Manager Priscilla A. Thompson, City Clerk Approved as to Insurance Requirements: Approved as to Form and Correctness: By: By: LeeAnn Brehm, Risk Management Jorge L. Fernandez, City Attorney Director Note: All Exhibits to be attached at time of document execution Revised Draft for Legislation 8