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HomeMy WebLinkAboutExhibit 1Draft Revised 11/25/08 Assignment, Assumption and Ratification Agreement By and Among The City of Miami, The Virginia Key Beach Park Trust, BEA International Corporation and Michael Phelan as Assignee for the Benefit of Creditors, Huff+Gooden Architects, LLC, And BEA Architects, Inc. This ASSIGNMENT, ASSUMPTION AND RATIFICATION AGREEMENT (this "Assignment Agreement") is made as of December _, 2008 by and among BEA International Corporation, a Florida corporation whose principal address is and an original joint venture partner ("BEA Intl" and "Assignor"), Michael Phelan of Michael Moecker & Associates, Inc., a Florida corporation whose principal address is as assignee for the benefit of creditors of Assignor ("Assignee for the Benefit of Creditors"), BEA Architects, Inc., a Florida for -profit corporation whose principal address is 3075 South River Road, Miami, Florida 33142 as the substitute joint venture partner ("BEA Architects" and "New Assignee"), Huff+Gooden Architects, LLC, a South Carolina limited liability company whose principal address is 302B King Street, Charleston, South Carolina 29401-1441 as an original joint venture partner and a continuing joint venture partner ("Huff+Gooden"), the Virginia Key Beach Park Trust, a limited agency and instrumentality of the City of Miami whose principal address is 4020 Virginia Beach Drive, Miami, Florida 33149 (the "Trust"), 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 Depaitiiient of Capital Improvements whose principal address is 444 S.W. 2nd Avenue, Miami, Florida 33130 (the "Department"). WITNESSETH: WHEREAS, on October 12, 2006, pursuant to Resolution No.06-0609, the Miami City Commission ("City Commission") (1) authorized the selection of the joint venture of BEA International Corporation/Huff +Gooden Architects, LLC as the top ranked proposer pursuant to Request for Qualifications No. 05-06-081 ("RFQ") to provide professional architectural and engineering design services for the Historic Virginia Key Beach Park Museum, Project B-30508 (the "B-30508 Project") and (2) authorized the City Manager through the Department of Capital Improvements and the Executive Director of the Virginia Key Beach Park Trust ("Trust") to negotiate a professional services agreement with the selected proposer; and Revised Draft 11/25/08 1 RJJ 08-2065 WHEREAS, on July 10, 2007, the City Commission adopted Resolution No. 07-0402 (a copy of which is attached hereto, incorporated hereby, and made a part hereof as Exhibit A) authorizing the City Manager and the Executive Director of the Virginia Key Beach Park Trust to execute a professional services agreement in an amount not to exceed One Million, Four Hundred and Sixty Thousand Dollars ($1,460,000) with BEA International Corporation/Huff +Gooden Architects, LLC to provide professional architectural and engineering design services for the B-30508 Project; and WHEREAS, BEA International Corporation, a Florida corporation ("BEA Intl" and "Assignor") on April 29, 2008 entered into an Assignment for the Benefit of Creditors ("Assignment for Benefit of Creditors" a copy of which is attached hereto, incorporated hereby, and made a part hereof as Exhibit B) with Michael Phelan of Michael Moecker & Associates, Inc. ("Assignee for the Benefit of Creditors"), and subsequently the Assignee For the Benefit of the Creditors of BEA Int'l on May 27, 2008 preliminarily entered into a Purchase and Sale Agreement with BEA Architects, Inc., a Florida corporation ("BEA Architects" and "New Assignee") subject to approval by anticipated court order; and WHEREAS, on June 25, 2008, the Circuit Court of the Eleventh Judicial Circuit, Miami - Dade County, Florida, Civil Division, in Case No. 08-24248 CA 27 entered an Order Approving Assignee's Motion to Approve Sale of Assets Free & Clear of Liens and Claims (the "Court Order", a copy of which is attached hereto, incorporated hereby and made a part hereof as Exhibit C); and WHEREAS, on September 10, 2008, the Assignee for the Benefit of Creditors as Seller and BEA Architects as Buyer completed the Purchase and Sale Agreement (the "Purchase and Sale Agreement", a copy of which is attached hereto, incorporated hereby and made a part hereof as Exhibit D) and on September 11, 2008 the Assignee for the Benefit of Creditors as Seller executed a related Bill of Sale (the "Bill of Sale", a copy of which is attached hereto, incorporated hereby and made a part hereof as Exhibit E), all in accordance with the Court Order; and WHEREAS, the Court Order provides a mechanism whereby agreements of BEA Int'l are to be assigned in connection with the Assignment for Benefit of Creditors through the Assignee for the Benefit of Creditors to BEA Architects, subject to the necessary approvals of the other parties to such agreements; and WHEREAS, Huff+Gooden Architects, LLC ("Huff+Gooden") as joint venture partner with BEA Intl has agreed to the requested assignment from BEA Intl to BEA Architects; and WHEREAS, in accordance with the processes set forth by the Court Order, (1) BEA Intl, Huff+Gooden, the Trust, and the City have entered into a Professional Services Agreement ("PSA", a copy of which is attached hereto, incorporated hereby, and made a part hereof as Exhibit F) on December _, 2008 with BEA Int'UHuff+Gooden to provide architectural and engineering design services ("Services") for the B-30508 Project, and (2) BEA Intl, the Assignee for the Benefit of Creditors as Seller, and BEA Architects as Revised Draft 11/25/08 2 RJJ 08-2065 Buyer have requested in connection with the Assignment for the Benefit of Creditors, the Court Order, and the Purchase and Sale Agreement for the City and the Trust to assign the PSA from BEA Int'l as a joint venture partner with Huff +Gooden to BEA Architects as a joint venture partner with Huff +Gooden; and WHEREAS, all of the principals of BEA Intl under the response to the RFQ and the PSA are also now principals of BEA Architects; and WHEREAS, the PSA contains provisions stating that it shall not be transferred, pledged, sold, delegated or assigned in whole or in part without the City's written consent and the Trust's written consent; and WHEREAS, the Trust and the City wish that BEA Architects continue to provide the Services under the PSA formerly provided by BEA Int'l, and the Board of Trustees of the Trust has approved Resolution No. 11032008-01 a copy of which is attached hereto, incorporated hereby, and made a part hereof as Exhibit G, and consented to the assignment at its November 3, 2008 meeting, and the City Commission has adopted Resolution No. 08- a copy of which is attached hereto, incorporated hereby, and made a part hereof as Exhibit H, on , 2008 authorizing the assignment; and WHEREAS, in order for BEA Architects to continue to provide Services to the City and the Trust for the B-30508 Project, it is necessary to assign the PSA with BEA Int'l/Huff +Gooden to BEA Architects/Huff+Gooden; and WHEREAS, BEA Int'l, the Assignee for the Benefit of Creditors, Huff+Gooden, and BEA Architects have each provided their respective corporate authorizations (originals of which are each attached hereto, incorporated hereby, and made a part hereof as Composite Exhibit 1) to enter into this Assignment Agreement; NOW, THEREFORE, The City, the Trust, BEA Int'l, the Assignee for the Benefit of Creditors, Huff+Gooden, and BEA Architects, in consideration of the following mutual covenants and obligations, hereby agree as follows: 1. Assignment. (a) Each of BEA Int'l as Assignor and original joint venture partner and Michael Phelan as Assignee for the Benefit of Creditors hereby assigns, sells, grants, transfers, contributes, conveys and delivers to BEA Architects as New Assignee and as new, continuing joint venture partner and to its successors and assigns free and clear of all liens, and New Assignee hereby (i) purchases, acquires and accepts from BEA as Assignor and from Assignee for the Benefit of Creditors, all of Assignor's and Assignee for the Benefit of Creditor's rights, titles and interests in the PSA, and (ii) accepts the role, duties, and responsibilities as new, continuing joint venture partner. BEA Architects hereby represents and warrants that it accepts an assignment of all aspects of the PSA. Revised Draft 11/25/08 3 RJJ 08-2065 (b) The City, the Trust, and Huff+Gooden hereby consent to such assignment of the PSA by BEA Int'l as Assignor and by Assignee for the Benefit of Creditors to BEA Architects as the New Assignee and as new, continuing joint venture partner. 2.Ratification and Assumption of Assumed Liabilities and Contractual Obligations. (a) BEA Intl, as Assignor and as original joint venture partner, and Assignee for the Benefit of Creditors hereby assign, sell, transfer, grant, contribute, and deliver, to BEA Architects, and BEA Architects as New Assignee and new, continuing joint venture partner hereby assumes and agrees to accept, pay, perform and discharge when due or required to be performed, all of the liabilities of BEA Intl as original joint venture partner relating to the PSA (the "Assumed Liabilities"). (b) BEA Architects hereby ratifies the PSA. BEA Architects affirms that it is fully responsible for the performance of all obligations of, and shall meet all requirements of, the PSA. (c) Huff+Gooden hereby ratifies the PSA. Huff+Gooden affirms that it is fully responsible for the performance of all obligations of, and shall meet all requirements of, the PSA. 3. Responsibility for Work Performed Previously by BEA Intl. BEA Architects hereby affirms that it is fully responsible for all work performed by and obligations of BEA Intl. under the PSA as if such work had been performed previously by BEA Architects itself instead of by BEA Intl., and each of BEA Architects and BEA Intl. agrees to indemnify the City and the Trust, and their respective officials, employees, and agents, against all loss(es) and/or damage(s) arising, or alleged to have arisen, from the work performed previously by BEA Intl. and its sub -consultants under the PSA, claims for non-payment by BEA Intl. and its sub -consultants, and claims for non-payment from BEA Intl and its sub -consultants. 4. Proper Amendment and Assignment In Accordance with PSA and In Accordance with Assignment for Benefit of Creditors, Court Order, Bill of Sale,and Purchase & Sale Agreement. (a) The City, the Trust, BEA Int'l, the Assignee for the Benefit of Creditors, Huff+Gooden, and BEA Architects each affirm that this Assignment, Assumption and Ratification Agreement is a proper amendment to and assignment the PSA under Article 10.03 of the PSA, as approved by Resolution No. 11032008-01 of the Board of Trustees of the Trust and by Resolution No. of the City Commission. (b)BEA Int'1, the Assignee for the Benefit of Creditors, and BEA Architects each affirm, represent and warrant to the City, to the Trust, and to Huff+Gooden that this Assignment, Assumption, and Ratification Agreement is a proper assignment in accordance with the Assignment for the Benefit of Creditors, the Court Order, Bill of Sale, and the Purchase and Sale Agreement. Revised Draft 11/25/08 4 RJJ 08-2065 5. Further Assurances. (a) Assignor and Assignee for the Benefit of Creditors agree and covenant that Assignor and Assignee for the Benefit of Creditors, as applicable, will, whenever and as often as reasonably requested to do so by Assignee for the Benefit of Creditors, by New Assignee or its successors and assigns, by Huff+Gooden, and as often as reasonably requested by the City and/or the Trust, as applicable, 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 New Assignee all right, title and interest in and to the PSA and to otherwise further effectuate and carry out the transactions contemplated by this Assignment, Assumption and Ratification Agreement, the PSA, the Trust's Resolutions, the City's Resolutions, the RFQ, the Assignment for Benefit of Creditors, the Court Order, the Bill of Sale, the Purchase and Sale Agreement, any future City and Trust amendments to the PSA; and any related documents, including the retention by Assignor of the any retained liabilities and the assumption by Assignee of the Assumed Liabilities. (b) New Assignee agrees and covenants that it will, whenever and as often as reasonably requested to do so by Assignor, the Assignee for the Benefit of Creditors, or its successors and assigns, by Huff+Gooden, and as often as reasonably requested by the City and/or the Trust, as applicable, 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 New 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 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 New Assignee all right, title and interest in and to the PSA and to otherwise further effectuate and carry out the transactions contemplated by this Assignment, Assumption and Ratification Agreement, the PSA, the Trust's Resolutions, the City's Resolutions, the RFQ, Assignment for the Benefit of Creditors, the Court Order, the Bill of Sale, the Purchase and Sale Agreement, any future City and Trust amendments to the PSA; and any related documents, including the retention by Assignor of the any retained liabilities and the assumption by New Assignee of the Assumed Liabilities. 6. Financial and Insurance Requirements. New Assignee has provided any and all financial requirements and continuing insurance requirements required by the RFQ, the PSA, and the Court Order satisfactory to the City's Capital Improvements Department Director and the City's Risk Management Director, copies of which are attached hereto as Composite Exhibit J. Revised Draft 11/25/08 5 RJJ 08-2065 7. No Further Assignment without Prior Written Consent of Parties. This Assignment, Assumption and Ratification Agreement and the PSA shall not be further assigned without the express written prior approvals and consents of the City Commission, the Board of Trustees of the Trust, Huff+Gooden, and of New Assignee, and if still applicable by the Assignee for the Benefit of Creditors. The City's approval and consent may be withheld or conditioned, in the City's sole discretion by the City Commission. The Trust's approval and consent may be withheld or conditioned, in the Trust's sole discretion, by the Board of Trustees of the Trust. 8. No Solicitation. Assignor, Assignee for the Benefit of Creditors, and New Assignee represent to the City and to the Trust that none of them has employed or retained any person or company employed by the City or by the Trust to solicit or secure this Assignment, Assumption and Ratification 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, Assumption and Ratification Agreement. 9. Public Records. Assignor, Assignee for the Benefit of Creditors, and New Assignee understand and agree that the public shall have access, at all reasonable times, to all documents and infolination pertaining to City agreements and Trust agreements including this Assignment, Assumption and Ratification Agreement, subject to the provisions of Chapter 119, Florida Statutes, and agree to allow access by the City, the Trust, and the public to all documents subject to disclosure under applicable laws. The failure or refusal by any of Assignor, Assignee for the Benefit of Creditors, and/or New Assignee to comply with the provisions of this section shall result in the immediate cancellation of this Assignment, Assumption and Ratification Agreement by the City and the Trust. 10. Governance. Notwithstanding any other provisions of this Assignment, Assumption and Ratification Agreement to the contrary, nothing contained in this Assignment, Assumption and Ratification 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 Court Order except as required by the City's Resolutions, the Trust's Resolutions, and the RFQ, as applicable, nor shall this Assignment, Assumption and Ratification Agreement reduce, expand or enlarge any remedies under the Court Order except as required in connection with the City's Resolutions, the Trust's Resolutions, and the RFQ as applicable. This Assignment, Assumption and Ratification Agreement is intended only to effect the assignment of the PSA and the assumption of the Assumed Liabilities concurrently with the transactions contemplated by the PSA, the Court Order, the Assignment for the Benefit of Creditors, the Bill of Sale, the Purchase and Sale Agreement, and by the City's Resolutions, the Trust's Resolutions, and the RFQ. 11. Counterparts. This Assignment, Assumption, and Ratification Agreement may be executed in one or more counterparts, any one of which need not contain the signatures of Revised Draft 11/25/08 6 RJJ 08-2065 more than one person, but all such counterparts taken together will constitute one and the same instrument. 12. Successors. This Assignment, Assumption and Ratification Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, legal representatives, successors and assigns. 13. Governing Law. This Assignment, Assumption and Ratification 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. 14. 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. 2na Avenue, 10th Floor Miami, Florida 33130 With copies to: Director, Department of Capital Improvements City of Miami 444 S.W. 2na Avenue, 8th Floor Miami, Florida 33130 AND: Executive Director Virginia Key Beach Park Trust 4020 Virginia Beach Drive Miami, Florida 33149 AND: City Attorney City of Miami 444 S.W. 2na Avenue, 9th Floor Revised Draft 11/25/08 7 RJJ 08-2065 Miami, Florida 33130 ASSIGNOR: To Assignee for Benefit of Creditors: To New Assignee: Attention: BEA Architects, Inc. 3075 South River Road Miami, Florida 33142 With copies to their Counsel: Attention: To Huff+Gooden: Attention: Huff+Gooden Architects LLC 302B King Street Charleston, South Carolina 29401-1441 15. Miscellaneous. A. No waiver or breach of any provision of this Assignment, Assumption and Ratification 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, Assumption and Ratification 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 Revised Draft 11/25/08 8 RJJ 08-2065 laws, or if not modifiable, then the same shall be deemed severable, and in either event, the remaining terms and provisions of this Assignment, Assumption and Ratification Agreement shall remain unmodified and in full force and effect or limitation of its use. 16. Corporate Authorizations. The respective corporate authorizations of Assignor, New Assignee, Assignee for the Benefit of Creditors, and Huff+Gooden to each enter into this Assignment, Assumption and Ratification Agreement are hereby attached and incorporated herein as Composite Exhibit I, and each of the Assignor, New Assignee, Assignee for Benefit of Creditors, and Huff+Gooden represents and warrants to the City and the Trust that their respective corporate authorizations remain valid and in full force and effect as of the date first written above. IN WITNESS WHEREOF, the parties hereto have executed this Assignment, Assumption and Ratification Agreement on the date first written above. Assignor: BEA International Corporation, A Florida corporation Attest: By: By: Name: Name Title: Title: Attest: Assignee for the Benefit of Creditors: By: Name: By: Title: Name: Title: Attest: New Assignee: BEA Architects, Inc. By: A Florida corporation Name: By: Title: Name: Title: Attest: Huff+Gooden Architects LLC By: A South Carolina limited liability company Name: By: Title: Name: Title: Revised Draft 11/25/08 9 RJJ 08-2065 Attest: By: Priscilla A. Thompson, City Clerk Date: Virginia Key Beach Park Trust, a limited agency and instrumentality of the City of Miami By: David Shorter, Executive Director Approved as to Insurance Requirements: By: LeeAnn Brehm, Risk Management Director CITY OF MIAMI, a Florida municipal corporation By: Pedro G. Hernandez, City Manager Department of Capital Improvements By: Ola Aluko, Director Approved as to Form and Correctness: By: Julie O. Brue, City Attorney Note: All Exhibits to be attached at time of document execution Revised Draft 11/25/08 10 RJJ 08-2065