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HomeMy WebLinkAboutExhibit 3-24-16ACCEPTANCE OF ASSIGNMENT This agreement ("Acceptance of Assignment") is entered into , 2016, but effective as of March 11, 2015, between the City of Miami, a municipal corporation of the State of Florida ("City") and American Towing of Miami, LLC. RECITALS WHEREAS, pursuant to Resolution No. 07-0335, adopted on June 14, 2007, Southwest Transport, Inc., d/b/a Westbrook Motors, Inc., ("Southwest") was awarded a contract under Request for Qualifications No. 04-05-054R ("RFQ"); and WHEREAS, Southwest Transport, Inc., d/b/a Westbrook Motors, Inc., and the City of Miami ("City") entered into a City of Miami Towing/Wrecker Agreement ("Agreement") on or about July 13, 2006 to provide such services; and WHEREAS, on October 22, 2008, Southwest Transport, Inc., d/b/a Westbrook Motors, Inc., changed its name to Southwest Transport, Inc., d/b/a Southland the Towing Company, Inc.; and WHEREAS, both the RFQ and the Agreement contained no assignment and no deligability provisions stating that the Agreement shall not be transferred, conveyed, disposed of, assigned or delegated without the City's prior written consent; and WHEREAS, on or about March 11, 2015, the trade name Southland the Towing Company of Miami, LLC was conveyed pursuant to an Agreement for Purchase and Sale of Assets without the prior written consent of the City; and WHEREAS, on or about August 3, 2015, said Agreement for Purchase and Sale of Assets, a copy of which is included in the agenda packet for this item, was assigned, transferred, and conveyed to American Towing of Miami, LLC.; NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: TERMS: 1. RECITALS: The recitals herein are true and correct and are hereby incorporated into and made a part of this Acceptance of Assignment. 2. CITY'S CONSENT: The City hereby acknowledges and consents to the assignment of the Agreement between the City and Southwest to American Towing of Miami, LLC. for the provision of towing services contingent upon: (1) American Towing of Miami, LLC's compliance with all requirements set forth in the Agreement; and (2) American Towing of Miami, LLC's compliance with Chapter 42, Article V, of the Code of the City of Miami, Florida, as amended; and (3) proof of execution of an assignment between Southland and American Towing of Miami, LLC, in a form acceptable to the City Attorney, which is attached hereto and incorporated by reference as Attachment A; and (4) execution of this Acceptance of Assignment. 3. AMERICAN TOWING OF MIAMI, LLC'S ACCEPTANCE: By execution of this Acceptance of Assignment, American Towing of Miami, LLC agrees to the terms, conditions and provisions contained in the Agreement and contained herein 4. NOTICES: All notices or other communications required under this 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 as herein provided. Notice shall be deemed given on the day on which personally delivered; or, if by mail, on the fifth day after being posted or the date of actual receipt, whichever is earlier. To American Towing of Miami, LLC Elizabeth Carvajal-Fleitez American Towing of Miami, LLC. 2246 NW 25t"Avenue Miami, Florida 33142 To the City Daniel Alfonso, City Manager City of Miami 3500 Pan American Drive Miami, FL 33133 With copies to: Victoria Mendez, City Attorney City of Miami 444 SW 2nd Avenue, Suite 945 Miami, Florida 33130 Annie Perez, CPPO, Director of Procurement 444 SW 2nd Avenue, 6th Floor Miami, FL 33130 5. GOVERNING CONDITIONS: All remaining terms of the Agreement, not specifically changed herein, and any amendment or addendum thereto, shall remain in full force and effect through the extended term. 2 IN WITNESS WHEREOF, the provider hereto have caused this instrument to be executed by their respective officials thereunto duly authorized, this the day and year above written. "City" CITY OF MIAMI, a municipal ATTEST: corporation By: Todd B. Hannon, City Clerk Daniel J. Alfonso, City Manager "Provider" ATTEST: American Towing of Miami, LLC. a Florida limited liability corporation Print Name: Title: By: Print Name: Elizabeth Carvajal-Fleitez Title: Owner APPROVED AS TO FORM AND APPROVED AS TO INSURANCE CORRECTNESS: REQUIREMENTS: Victoria Mendez City Attorney Resolution: Ann -Marie Sharpe, Director Risk Management 3 Attachment A Proof of assignment from Southwest Transport Inc. d/b/a Southland the Towing Company to American Towing of (Omni, LLC. 4 ASSIGNMENT OF AGREEMENT FOR PURCHASE AND SALE OF ASSETS ERNESTO SOCORRO, individually, hereby assign, transfer and convey the attached Agreement For Purchase .And Sale Of Assets, executed on March 11, 2015, to American Towing of Miami, LLC, a Florida limited liability corporation, STATE OF FLORIDA COUNTY OF MIAMI-DADE • ess: tri Witness: BEFORE ME, the undersigned authority, on this6 day of , 2015, personally appeared ERNESTO SOCORRO who are personally'known to me or [ J who produced the following as identification, and Who, after being duly morn, acknowledged and declared before Me, under oath and penalty ofperlary, that the facts contained in this document are true and correct, based Upon his personal knowledgeVQ NOTARY PT_IBIT STATE OP- - ,ORIDA lvly Commission Expires: MyCOMM8SIONOFFIbe.439 • E4IVES: OCT ga, :gal& 4Z:119.4te :Ron4throtigh 1st Clati.Wurnte Re: Southland The Towing Company The parties agree to enter into and execute an Asset Purchase Agreement containing the terms and conditions and substantially in the form of the Asset Purchase Agreement which is attached, In consideration of the foregoing, EmeStO Socorro :(Buyer) has tendered the sura of Ten Thousand Dollars ($10,000..00) and Roberto J. Ivliniedas (Seller) aclmowledged receipt of said such. DATED THIS DAY OF MARCH, 2015. SELLER: BUYER.: AGREEMENT FOR PURCHASE AND SALE OF ASSETS ' This Agreement entered into this day of Mara, 2015, by and between ROBERTO J. MURIEDAS (SELLER), and. EIMSTO SOCORRO or assigns (BUYER), WI1NESSETH: Wbereas, SELLEg, owns and operates a towing service under the name of "Southland The Towing Company" presently located at 2246 NW 25'11 Avenue, Miami, Florida 33142, (the BUSINESS), and desires to sell all rights, title, and interest in and to the BUSINESS and all tangible and intangible assets thereof; including all goodwill, lice/18es, permits, leasehold interest, leasehold itnprovetrients; eqUipment, furniture, 'fixtures, and inventory. Whereas, BUYER is willing tdpurohase all rights, title, and interest in and to the ROSINESS and all tangible and intangible assets thereof, on. the terns and conditions hereinafter provided. -NOW TREREFORE, in consideration of the mutual covenants and representations contained herein, the parties agree as follows: 1, SALE OF BUSINESS & .ASSETS:, SET LER shall sell and BUYER sha.11 purchase, free and clear fiQ111 any and all liabilities and eneumbrances, all :rights; title, and interest in and to the BUSINESS and all tangible and intangible assets thereof, including all goclawill, existing signs, licenses, permits, leasehold interest, leasehold improvements, equipment, furniture, fixture, and inventory, as more fully described on Exhibit "A," attached hereto and made a part of this agreement. 2. TRADE NAIYIE: SELLER is conveying and mining BUYER the absolute, cxclusive, and inevocabie right to the trade name 'Southland The Towing Company," andior any and all variations or combinations thereof in connection with the operation of a motor vehicle towing or transport business. SELLER shall not use the trade name "Southland. The Towing Company," and/or any variation or combination thereof in connection with any operation involving the towing or transportation of motor vehicles. SELLER Shall execute and deliver any and all documents which may be required or necessary for BUYER to transfer ownership and registration ofthe trade name to 131.WER's name, and any documents necessary or deemed necessary to prevent its use by anyone individual Or entity other than ilUYER. z-01 3. PURCHASE PRICE!. .BUYER shall pay to SELLER a total sum 1 ' for the transfer of all lights title and interest in and to all of the BUrSINEgS and all assets thereof. 4. TERMS OF PAYMENT: .BOYER. Shall 1)ay the purchase pi -ice Which is set hi -thin Section 3 of this Agr, cement as fellows:: --;— ..BUYER SELLER Page 1 of 12 Roberto .1. Muriedas / Ernesto Socorro 5, ADJUSTMENTS AT CLOSING: RENT, UTILITY, AND TAXES: Rent, telephone charges, utility charges, and taxes shall be prorated at time of Closing, SELLER shall be respendble for all rent, telephone charges, utility charges, and Municipal, County, State, and Federal taxes up to date of Closing. Any necessary adjustments and prorations will be prorated against the Gash to close: 6. TAXES:. SELLER shall pay all sales, transfer, ii100111; property and eimployment taxes due -up to the date of Closing, including all Municipal, County, State, or Federal taxes arising out of the sale and transfer of the BUSINESS and assets thereof. 7, T260( CERDFICATE(S): SELLER shall provide BUYER with proper certificates from all relevant taxing authorities evidencing that all taxes due for or as a consequence. of the operation and transfer of the BUSINESS have been paid. 8, -NOTICE TO DEPARTMENT OF 13,EVENUE: SELLER agrees to comply with all requirements of Florida Statutes, including providing notice to the Florida Department of Revenue of the proposed transfer of assets, and obtaining a Clearance certificate, ,so that BUYER shall in no way be liable for SELLER'S sales to liabilities, if any. 9, CLOSINO Unless. SELLER and BUYER mutually agree otherwise, the transaction contemplated by this Agreement shall be closed on or before thirty (30 working days afterthe date upon Which SELLER delivers all the required lists to BUYER, at the offices of SELL,ER's attorney. 10. ASSUMPTION OF LIABILITIES: BUYER does not assume and shall not be liable for any claim .against, or obligation or liability of SELLER or of the BUSINESS. II. LICENSES AND PERMITS: SELLER warrants and represents that: A. SELLER as currently the holder of die licenses and permits listed on and copies of which appear as composite Exhibit "B" to this Agreement. B. All of the licenses and permits appearing on Exhibit '`B" ate all hi good standing. C. SELLER is not on tice or alivare of any matter which will constitute a violation or sUbject the referenced licenses and permits to cancellation or penalties bf anykind., D., SELLER shall ;assign, transfer, and convey ,all licenses and peinalts pertaining to, or held by 'the BUSINESS, if pernaitted by applicable laws and regillatiOns. SELLER sb1l execute and deliver all forms and documents Which are deemed necessaiy to transfek all licenses and pennits to the BUYER, and shall unconditionally assist and „UYER. ,SELUR Page 2 of 12 Roberto J. Murieclas Ernesto Socorro cooperate 'vith BUYER in undertaldng and accomplishing the process of tansfeiring all existing licenses and pettanits. P. This Agreementis subject to end contingent upon SELLER having or BUYER obtaining the transfer of all necessary licenses and permits for thperation of the BUSINESS; including any and all Occupational, fire, end pollution. &environmental licenses, permits, or CertifeateS required lay any Department, l3oarcl, Commission, or Agency of the Municipal, County, State, and Federal Govermnents. It is specifically underStood that this Ageementis subjed to and contingent upon BUYER obtaining the transfer of all necessary licenses and permits for the operation of the BUSINESS. 12, EQUIPMENT, FUR.NITURE, AND FIXTURES.: All equiptnent, furniture, and fixture enumerated in Exhibit "C" shall:be in good repair and working condition et the time of Closing. C" \P 13. BUSINESS PREMISES AND IMPROVEMENTS; The BUSINESS premises and all leasehold improvements, including but riot limited to, all signs, all electrical and plumbing installations, appliances or fixtures, shall he in good repair and working condition, free of any and all violations of any Municipal, County, State, or Federal, Ordinance, Law, Code, Rule, orReplation at the time of CloSing, 14. RISK OF LOSS: SELLER. assumes any and all risk of destruction, loss, or damage which an ay result from fire or other casualty up to the time of Closing. ,/ 15. WARRANTIES AND REPRESENTATIONS: SELLER wan -ants and represents that: A. SELLER owns and has good and marketable title to 'all of the .ssets of the BUSINESS subject to this ageement, free of any security interests, liens, claims, judgments, encumbrances, and restriction on transfer or assignment. B, SELLER has not assigned, pledged, encunibered, or transferred .any legal, / equitable, or beneficial right or interest in the BUSINESS. C. SELLER is fully vested and possesses absolute and unreshictedxight,power, •and authority to sell, assign, ConVey, and transfer all of the tangible end intangible a8sots of the BUSINESS subject to this agreement, free, and clear of any and all Len g endior elairus of any naive. D. SELLER. has not entered into any other Agreement or granted or assigned any right or option to anyone who is not aparty to this Agreement (individual or entity) to acquire any tangible and intangible asset of the BUSINESS, or any right or interest -therein, E. Conveyance of the tangible and intangible assets of the BUSINESS to BUYER, fIVER„ MIER Page 3 of 1 Roberto j, Muriel:1as Lgrnesto SOcorro pursuant to this agreement, wili vest unencumbered title to the 'assets in the BUYER. F. To the best ofSELLER'S loiowledge, the conveyance of the tangible and intangible assets of th,e BUSINESS, as conteMplated by this agreement, will not violate any Federal Statute or Lobel Law, Ox'dinanee, RAO, orRegnlation, G. The BLIMESS has been operated in accordance with all applicable Municipal, County, State, and Federal, Code; Ordinances, Laws, Rules and Regulations. H. SELLER has continuously, in the management and operation of the I3USINESS, fully complied with all Law; Codes, Rules and Regulations Of all Federal, State, and Local governmental entitiesiagencies. L SBLLER has neither actual nor constructive knowledge that the BUSL\TESS, or „ any nierabm, manager, employee, agent, or representative of the BUSINESS has committed or engaged / in any violation of any Federal, State, oi Local Law, Code, Rule, Regulations or Standard Of Conduct. The financial books and records of the BUSINESS have beentnaintained in accordance with Generally Accepted Accounting Principals, accurately list, reflect, and account for all 1 sale, income, expenses, and liabilities of the BUSIESS, and otherwise fairly and accurately reflect the financial operation and condition of the BUSINESS. X. The SELLER and the BUSINESS: (1) have en plied with all requirements IA any Municipal, County, State, and Federal governmental entity with regard to reporting of all sales and, income; (2 have properly reported all sales and income to any Municipal, CoUnty, State, and Federal governmental entity; 0) have paid all assessments, taxes, contract or franchise fees to all Municipal, County, State, and Federal governmental entity, and (4) have fully complied, satisfied, paid, and I otherwise discharged any and all obligations arising Out of; or related to the operation and the sales and V income of the BUSINESS in connection with any requirement or obligation imposed by any Municipal, County, State, and Federal law, code, contract, franchise, rule, or regulation, and has paid all taxes. L. The B1...TSINESS premises are, in potnplia,nto with, adhere arena violations of any, building, zoning, flit, Sanitation, environmental, Or safety, 'Code; ordinances, la*s, rules, and regaladons. :M. The IRIS'llit8S has all liC011$0S and -permits requiredby any Depailment,Board, Commission, or Agency ofilie MuniciPal, County, State; and Federal Governments, and all said hcensesandpennits are current and in good:standing X, The only name used in conjunction with the BUSINESS during the past five „ Yfr5TER , Page 4 of 12 Roberto J Murieclas / Ernesto Socorro years is "Southland The Towin Company." O. SELLER has all rights and interests to the trade name "Southland the Towing / Company" and has not granted any individual or entity any right or interest in or to the trade name, v" P. There are no isting, pending or threatened claims, actions, liens, judgments, \ security interest, or administrative or judicial proceedings agaii-ist SELLER or the BUSINESS which may in any manner, now or hi the future; affect SELLER's right to convey the assets and BUYER' s tight to obtain absolute clear and marketable title to all tangible and intangible assets of the •BUSINESS, Q. SELLER .has neither actual nor constructive notice or knowledge of any existing, pending, threatened, or potential investigation, audit, litigation, suit, or legal claim (administrative, civil, criminal) against the BUSINESS, or any member, manager, employee, agent, or representative of the BUSINESS. R. Neither SELLER or the BUSE\TESS istare subject to any judgment, order, writ, / injunction, prohibition, restriction, Ot decree of any court or judicial authority, or ()fatty Federal, State, or Local agency. S. There are no unpaid taxes or franchise fees of eny kind or nature; all taxes and franchise fees imposed by, or due to any Municipal, County, State, and Federal authority or body are paid and current, and all reporting and filingrequirements imposed by any Municipal, County, State, and Federal authority br body have been properly complied with and 8ati'sfied. T. SELLER has fully complied with all obligations and standards imposed by any / provision of Local, County, State, and Federal law relevant to wage and hour, and employment • practices, including, but not litnited to, all obligations imposed by the Fairlabor Standard Act. U. The execution ofthis ,Agreementend the sale and transfer of the tangible and intangible assets of the BUSINESS have been duly authorized by the directors and shareholders of the SELLER. 1.5. SURVIVAL OF REPRaMTATiONS AND VI/ARRA-NIES AND COVENANTS; All representations„ warranties, and covenants contained in this Agreement shall survive the Closing and be fully enforceable and constitute an actionable right and claim of BUYER tintil the date that is thirty(3) days after the expiration of the applicable 6f.atufe of limitations untler Florida law. 17. BILL OF SALE: SELLER. shall prepare and deliver to BUYER, et Closing, a Bill of Sale, in the form attached as Exhibit "D," containing a warrarlt3r of title, conveying good and clear title to all of the assets roVeyed pursuant to this agreement. SELLER. shall alsoxectite any and all further Page 5 of 12 13YER SELLER . Roberto ..Z.Mziriedas lErnesto Socorro. necessary documents which may be required to 'carry out this agreement. lg. NO LIEN AFFIDAVIT: .SELLER shall execute and deliver an. affidavit attesting to the absence of Claims, judgments, atid liens or potential or threatened claim, judgments, and iiens at time •3/ of Closing, 19, INSPECTION: BUYER shall have a period ofthirty (30) days to inspect and evaluate , all aspects of the BUSNESS, and conduct all inquires to transfer all existing 16Anelaises or governmental contract held: by the BUSINESS, and all licenses and pennits. This includes, without limitation, the following: (1) the right to inspect and evaluate the BUSINESS premises, all leasehold improvements, fixtures, finniture, and equipment; (2) the right to examine and evaluate the existing lease for the BUSINESS premises; (3) 'the right to inspect and determine the status and transferability of all franchises or gOvenitnental contracts, licenses, and permits held by the BUSINESS, or necessaty for the operation of theBUSINESS, and (4) the right to examine all financial booko. and records oft& BUSINESS, and inquire as to all other matters which BUYER tonsiderS material to it purchase ofthe assets of the BUSLNESS. 20. The 1,,,venty (20) day inspection period, shall commence to run simultaneous with the date of this Ag,reement. 21. If after its inspection, BUYER, at its sole discretion, is unsatisfied with any aspect of the / BUSINESS, upon notification to SELLER by BUYER this Agreementshall be null and void, and the deposit shall be ramded to BUYER. 22. MEMNIFICATION OP BUYER: SELLER shall fully and. unconditionally efend, indemnify., and hold BUYER harmless from: A. Any suits, claims, liability and obligation of SELLER, not expressly assumedby BUYER in writing as part of' this Agreement. B. Any damages, loss, clain, action, suits, proceeding, jud&utent, cost, expense, deficiency, and professional fees connected with, or arising on any breach of this Agreement by SELLER, breach &vat -rarity contained herein, or any material misrepresentation, including any omission orl'ailure of fall and trathfal disclosure or any concealment, as to any aspect of this Agreement or matter contemplated by this Agreement, or in any document or list delivered to BUYER in connection with this agreement. C. From and after the (late of this Agreement, SELLER shill defend, indemni and hold hamiless BUYER, its agents, representatives, 'successors, and assigns from and agahist any and all claims, losses, .dinainution in value, liabilities, damages, assessments, judgments, QC)StS, and expenses, including reasonable attorneys' fees (both those incuiTed in connection with the defense :or prosecution Page 6 of 12 ' t Roberto J Mitrietitts ./ Brnesto .Socorro of any indetnnifiable claiin and those incurred in .comiection with the enforcement ofthis provision); 4'140ssee re4ulting ilorn, arising out of, in connection with, or related to: (6) anymisrepresentatiori breach by 'SELLER of any representation or warranty made by SELLER in this Ag,reernent; (b) any claim, suit, or loss pertaining to any matter within the,purview of any representation in this Agreement or made by SELLER; (c) any breach or failure by SELLER to perform timely any term, covenant, condition, or Obligation contained in this Agreement; (d),any claim or liability arising out of, in connection with, or in any Manner related to any financial, ma.nagerial, or operational matter of the BUSNESS prior to the Closing Date, (e) any suit, chum or Losses to the extent such Losses relate to or. arise from, SELLER in connection with any facts, circumstances, or events arising out of, existing or caused therefrom prior to the Closing Date; D. At the of Clo5ing, SELLER shall execute and delivertn indemnification agreement substantially in the form appealing on Exhibit -"E" to this agreement. 23, COSTS: Except for BUYER's attorneys fees, and cost associated with the transfer of all licensea and lease, SELLER shall be responsible for all taxes, fees, and costs relating to or connected with, the sale Oftb.e BUSMESS and assets thereof. BUYER shall be responsible for any fee Or cost for transferring all licenses, permits, and leases. 24. CORPORATE STANDING AND RESOLUTION: SELLER. shall furnish to BUYER's Attorney and BUYER shall furnish to SELtER's Attorney at least ,five (5) 'working days prior to Closing, mitten proof of its corporate existence from the Secretary of State, or an affidavit ;attesting to the fact that SELLER is an individual. At Closing,, an officer of the SELLER shall execute an Affidavit of corporate existence and certified corporate resolution whereby the stockholders of SELLER acknowledge the sale ofthe assets of the BUSINESS and agree to be bound by this agreement, and an officer of the BUYER shall execute an Affidavit of corporate existence and certified corporate resolution, whereby the stockholders of BUYER acknowledge the purchase of the asets of the BUSINESS and agree to be bound by this agreement, and all required notes and ,fgantees, 25. DEFAULT: If BUYER fails to perform this Agreement, SETJ ER may elect to deelate •a forfeiture and cancellation of this agreement, and retain the deposit paid by BUYER as liquidated damages and full settlement of any claim for &MR's non-performance or may proceed at law or in equity, and recover costs and attorney's fees. rt SELLER fails to perform this agreement, BUYER may elect to recover he deposit and declare this Agreementvoid, or sue for specific performance and damages, and recover costs and aftorney's fees. 26. COVENANTS CONCERNING CONIPETITION: As M. essential and material consideration and inducement for BUYER's obligations under this Agreenient and the Purchase and acquisition of all of SELLER's right and interest in the BUSINESS, SELLER expressly agrees to the covenants and restrictions on ids/its present and future activities as contained in this section. Page 7. of 1.2 Roberto J Mulledas Brnesto S'ocorro A. Ile BUSINESS is engaged in the business ofrnotor Vehicle towing, redevery, a.nd tr.ansportation. BUYER, is undertaking to acquire all of SELLER's interest in the BUSINESS. The value of the SELLER's interest derives from the value of the BUSINESS as a going concern, and in.cludespropaietary and confidential information pertaining to business model, client/customer information, employee and staffing infonnation. SELLER is privy to confidential infonnation and knOwlecige about the operation mad business affairs of the BUSINESS, includingbusinest policies, accounts, procedures, and Methods. The nature of the business is such that ib.e relation ofits chants/customers and the BUSINESS's staff must be maintained to preserve the value of BUYER's acquisition. 13. SELLER is familiar with and possesses the manner, inethods, and coiAdential information pertaining to the BUSINESS' operation and business, and with identity of, and relevant information or date about the BUSINESS' suppliers, providers, clients/custorners, staff, and business contacts. C. SELLER understands and acknoWledges that the covenants contained in this section am required for the fair and reasonable protection of the value of BUYER's acquisition of the 13USINESS, and that without the limited restrictions on SELLER'S activities imposed by the covenants, the BUSINESS and BUYER would suffer irreparable and immeasurable damage. D. The covenants on the part of SELLER Shall be constrted as an agreement independent of any other provision of this Agreement, and the existence of any oWra Or cause of action, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement BUYER of the covenants. E. eep) ears y SELLER does expressly covenant end agree thatior . inuttediately-following.the date of the C crSBLT- R--cffirivithin the tenitory comprised of Monroe, Miami -Dade, Bro•d7-irr—d-ral , ar-Bent - aeh-Cia41Ities, directly or indirectly, for himselftherself, on behalf cifser , as an individual on his/her own aceo-GT, 7iFfnettibe , areholder, partner, director7'6fficer, employee, agent, consultant, advisor, or representative for any piror business entity, ,whether a partnership, business, firm, corporation, or joint venture; \ . \,....,. i. Contact, solicit, or cause to be contacted or solicited any f met or present client/customer or a count of the BUSINESS. ii. Direct or cause to be directed any promotional •or marketing material, communication, or offer to any former or present 'client/customer tit account *Of the 13I.I$INIESS. Own, manage, control operate,-or-in-any-rnannerarticipate in the ownerShip, naanagemenLorcontrortire5gage .as rinar -ettirrepresentative, sales executive, or consultant drily 6siness which engages in any phase of'the business of the BUSINESS. Page .8 of 12 A t Poberto Muriedas / Ernesto Socorro iv. In -vest, have, or hold any financial interest in any business which engages iti anylihase of the business of the BUSINESS, including providing any:financial assistance, capital, or loan, any such business. -v. Disclose or divulge tb.e identity of anY client/customer, or any lists of clients/customers, prices, costs, or other infotmation or data in any manner or degree learned,acquixed , or coining to SELLER'S knowledge during or because of SELLER'S membership or participation in. the management of the BUSINESS to any third -party. In any manner or degee use, cause the use, or facilitate the use of: the identity of, or information about any client/enstomer, or any lists of clients/customers; any information pertaining to, or about prices or pricing and/or costs; the identity of or information about any supplier or source of supplies and materials; the identity of, or information about any employee, staff, provider, or contra.ctor, or other infoimation or data in any/Timmer or degree learned, acquired or coming to SELLER' & knowledge during or because of SELLER's membership en partieipation in the management of the r4u$,Luss. F. Each restrictive covenant set forth in this section is -separate and distinct :from any other restrictive covenant set forth in this section. in the event of the invalidity of any covenant the remaining obligations shall be deemed independent and divisible. The patties agree that the inclusion of all of the Counties comprising the tenitory is reasonable and necessary for the protection of BUSINESS. G. SELLER stipulates and agee that the remedy at law (monetary damages) alone for any actual or threatened breach of the restriction in this section by SELLER are, and would be :inadequate, and that BUYER and the BUSINESS shall be entitled to equitable remedy, in the form of specc perfolinance and/or injunctive relief, .or both, by temporary or permanent injunction or other appropriate judicial equitable remedy, writ, or order, in addition to any damages which BUYER and the BUSINESS may legally -be entitled to recover. SELLER specifically waives any arid all objeetions to the entry of an injunction in favor of the BUYER and the BUSINESS. BUYER and the BUSINESS shall also be entitled to recover reasonable costs and expenses, including professional fees (attorney's, accountants, or experts)., incuued in connection with any action to enforce the terms and condition of restriction in this section of this .Ageement. 1-1. In engaging in the permitted activities, SELLER shall reMaiti prohibited from any solicitatiliX-direetly-or--iudire.egy. of Anyloriner,or.present,-elientskustomViitiffe-Bt. SINESS, and front using any cbrifi ntial-iffdliikion of the suancss to either promote its service or solicit clientstcustomersr- 27. INDUCING EMPLOYEES OP BIJSINESS TO I SAVE BUSINESS; Any attempt on the Ilart of SELT FiZ. to induce any -officer, eniployee, agent, repre,sentati:ve, contractor, or other staff Page 9 of 12 • Roberto J. Muriedas Brnesto Socorro person laired, contracted, or retained by the BUSINESS, to leave BUSINESS'. eraPloy, or any effort by SELLER to interfere with the BUSINESSrelationship with others in the employ of the BUSINESS, / would be harmful and damaging to the BUSINESS and materially detrimental to BUYER'S interest, SELLER expressly agrees that for a period of three (3) years after the date Of Closing, SET ;TER•shall not 6reet1y or indirectly: A. Induce or attempt to induce anypenon in the employ of, or working for the BUSINESS to quit Or terminate his/her eroployment or relationship with the BUSINESS; B. Engage in any conduct which is likely to interfere with or disrupt the BUSINESS' relationship with those in its employ or with whom the BUSINESS contracts; and BUSINESS. C. Solicit, entice.„ take away or employanyperSOn Who is in the employ of the v SELLER stipulates and agree that the remedy at law (monetary damages) alone for any •actual or Threatened breach of the restriction in this section 'by SELLER are, and -would be inadequate, and that BUYER and the BUSINESS shall be entitled to equitable remedy, in the fonn ofspecific performance and/or injunctive relief, or both, by temporary or permanent injunction or other 117 appropriate judicial equitable remedy, writ, or order, in addition to any damages which BUYER and the BUSINESS may legallybe 'entitled to recover. SELLER. Specifically waives any and all objections to the entry ,of an injunction in favor of the BUYER and the BUSINESS. BUYER and the BUSINESS shall also be entitled to recover reasonable costs and expenses, including professional fees (attorney's, accountants, or experts), incurred in connection with any action to enforce the terms and conditions of restriction in this section of this Agreeinent. 28, INSURANCE; BUYER. shall maintain adequate insurance protecting the BUSINESS y/ and assets thereof, and naming SELLER as an additional and loss payee to. the extent of SELLER's interest, F.AITIIFUL PERFORMANCE OF LEASE: BUYER shall maintain the lease% the business premises bi fuJi force and effect, and shall not perinit any efault to occur thereunder. 30, GOVERNING LAWS AND CONSTR.UCTION: This Agreement and an legal relationship between the .parties shall be construed in accordance with, and governed byte laws of the STATE OF FLORIDA, and shall be construed as if drafted by both parties. Venues for any olispate shall belyll.AMI-DADE COUNTY, FLORIDA, 31. ,BINDING EFFECT; This Agreement shall be binding on and inure tothe benefit of the pathes, and their respective heirs, • successors and approved assigns Page 10 of 1.2 Roberto j. Murietlas 'Ernesto Socorro 32, INVALIDITY OF PROVISIONS: The un-enforceability, for any :reason, of any term, condition, covenant or provision of this A grreeznentshall neither limit nor impair the operation/ enforceability or validity of arty other tants, conditions, provisions or covenants of fhis agreenlent. ';')3. GOOD FAITH EFFORTS: SELLER and BUYER each covenant to act in good faith, use their best efforth, and act with due diligence, to comply with the provisions of this agreement. 34. SURVIVAL CLAUSE: All terms, covenants, warranticS, conditions contained in this Agreement shall survive the Closing, 3S, NOTICES: notice, communice.ctien, request, approval, or consent, that maybe given or is :required to be given under the terms of this agreement, sisall be in writing, and shall be sent certified nin14 return receipt requested, to the address for each party shown on the face of this agreement, Notice given by or to the attorney for 'either party Shall be as effective as if given by or to the party. 36, CAPTIONS: The captions in tbis.Agreementare for convenience and reference only, .ki,/ These ate not intended, in any Manner, to define, describe, extend, or 'limit the scope, intent of this agreement, or of any of its ptovisions. 37. MODIFICATION:' This Agreementmay only be altered, .amended or Modified by a written document, exemted by both parties with the same formalities as this agreement. 38. ENTIRE AGREEMENT: This Agreement, constitutes the full and complete :agreement si of the parties regarding the subject transaction, except for the note end guaranty securing this agreement. There are no representations promises or terms •which are not merged into or set forth in this agreement.. This terms and conditions of this .Agreement shall survive the Closing. 12.,T WITNESS Wfla.E2F, the parties hereto have set their hands and Seals on the date set forth beneath eaoh party 8ignatirre. Last date signed will be the effective date ,of this Agreement, WITNES SES BUYER: Dated; 0 Page 11 of 12 1 " WITNESSES: Poherto J. Muriecias / Eriiesto SOCOrr0 SELLER: ROBERTO J.. MTJEIEDAS Dated: Paige 12 Of 12 JOSE M. HERRERA, P.A. - ATTORNEY AT LAW - 2350 CORAL WAY TELEPHONE: (305) 445-1100 SUITE 201 FACSIMILE: (305) 221-8805 MIAMI, FLORIDA 33145 E-MAIL: JMH@HERRERALAWFIRM.COM March 10,.2016 VIA EMAIL: rsuarez-rivas®a miamigov.com Rafael Suarez -Rivas, Senior Assistant City Attorney City of Miami Office of the City Attorney 444 SW 2nd Avenue Suite 945 Miami, Florida 33130 Re.: American Towing, Inc. Dear Mr. Suarez -Rivas: I represent American Towing, Inc. Enclosed is the affidavit of Elizabeth Carvajal-Pleitez which explains how American Towing, Inc., acquired the assets of "Southland The Towing Company, Inc.," from "Roberto Muriedas." The affidavit clearly states that neither American Towing, Inc., nor any or its related entities, nor any of its officer, managers, or employees have any association, affiliation, relationship, or ties of any kind with "Southland The Towing Company, Inc.," "Roberto Muriedas," or "Manuel Marono." I understand that certain individuals have disparaged and maligned my clients. Thus, I can appreciate how the malicious falsehoods raise concerns for the City of Miami. Please let me assure you that there is no truth to any allegation/representation to the effect that my clients have any kind of association, affiliation, relationship, or other ties with "Southland The Towing Company, Inc.," "Roberto Muriedas," or "Manuel Marono." On or about March 11, 2015, my client entered into an "Asset Purchase Agreement" with "Robert Muriedas" to acquire the assets of "Southland The Towing Company, Inc." At the time, there were leases, contracts, and other matters which required time to transfer or transition. It was decided to create a `bridge" entity to accomplish the transition and avoid any default on any leases and contracts which required continuation performance during the transition period, This is routinely done in commercial transactions for a number of legitimate reasons. Accordingly, on March 16, 2015, "Southland The Towing Company of Miami, LLC," was created as a "transition" or "bridge" entity for the sole purpose of acquiring the assets of "Southland The Towing Company, Inc.," and undertaking the process of having all contracts which were part of Letter to Rafael Suarez -Rivas Re: American Towing, Inc. March 10, 2016 Page 2 of 2 the Asset Purchase Agreement, including the City of Miami towing contract, which was in the name of "Southland The Towing Company, Inc.," transferred/assigned to "American Towing, Inc." "Southland The Towing Company of Miami, LLC," is a limited liability company, of which the m:exnbers are Noel Vigil Benitez and Ernesto Socorro. "Southland The Towing Company of Miami, LLC," is totally unrelated to, distinct from, and has no association, affiliation, or ties of any kind with "Southland The Towing Company, Inc." or its owner/director "Roberto Muriedas." "Roberto Muriedas" who was the owner/director of "Southland The Towing Company, Inc," and indicted and sentenced in connection with the bribery of City of Miami Police officers, has never had and does not have any interest, relationship, association, or affiliation of any kind with any of my clients or their companies. On July 17, 2015, after completing some of the transition process, "American Towing of Miami, LLC," was created, as a subsidiary entity of "American Towing, Inc.," to acquire the assets and towing rotation contract for the City of Miami from "Southland The Towing Company of Miami, LLC," and finalize the process. Again, I am aware that certain individuals have disparaged my clients and made false statement and misrepresentations to mislead the City of Miami and interfere with my clients contracts. All statements and innuendos suggesting that my client, or any of its officer, directors, members, managers, or employees have any association, affiliation, or relationship with to "Southland The Towing Company, Inc.," and/or "Rob Muriedas" are totally false. Sincerel J se M. Herrera, Esq. AFFIDAVIT OF ELIZABETH CARVAJAL-FLEITEZ Before me, the undersigned authority, did personally appear, ELIZABETH CARVAJAL- FLEITEZ, who being first duly sworn, deposes and states: 1. My name is Elizabeth Carvajal-Fleitez. I am over 21 years of age. This affidavit is based upon my personal knowledge. 2. I am the President of "American Towing, Inc" which was incorporated in 1992 and established in 1967 by my father, Rodolfo Carvajal, Sr., in Hialeah Gardens, Florida. 3. "American Towing, Inc.," has operated continuously for the past forty-nine (49) years. 4. A'ttached, as Exhibit 1, is a short list of some of the present governmental and business entities with which "American Towing, Inc.," has contracts and to which it provides towing services. 5. None of our companies/entities ("American Towing, Inc.," "Southland The Towing Company of Miami, LLC', and "American Towing of Miami, LLC") have any association, ties, or relationship of any kind with either "Southland The Towing Company, Inc." or its owner/director, Robert Muriedas. 6. On or about March 11, 2015, we entered into an "Asset Purchase Agreement" with. Robert Muriedas to acquire all of the assets of "Southland The Towing Company, Inc.' 7. In March 2015, there were leases, contracts, and other matters which required time to transfer or transition. We created a "bridge" entity to accomplish the transition and avoid ' This is an "LLC" - NOT to be confused with "Southland The Towing Company, Inc." which is .a (1) an "Inc." or a corporation, and (2) does not have "of Miami" as part of its name. 2 At the time, "Southland The Towing Company, Inc.," and Roberto Muriedas, its principal, were indebted to the landlord of the property at 2246 NW 25 Ave., and were in default of the rent obligations. The Asset Purchase Agreement was the result of the satisfaction of the obligation of the payments of rents and the landlords rights. Page 1 of 3 Affidavit ofElizabeth Carvajal-Fleitez any default on any leases and contracts which required continuation performance during the transition period. 8. Thus, on March 16, 2015, we created "Southland The Towing Company of Miami, LLC," as a "transition" or "bridge" entity for the sole purpose of acquiring the assets of "Southland The Towing Company, Inc.," and undertaking the process of having all. contracts which were part of the Asset Purchase Agreement, including the City of Miami towing contract which was in the name of "Southland The Towing Company, Inc.," transferred/assigned to "American Towing, Inc." 9. "Southland The Towing Company of Miami, LLC," is a limited liability company, of which the members are Noel Vigil Benitez and Ernesto Socorro. 10. "Southland The Towing Company of Miami, LLC," is totally unrelated to, and has no association or affiliation of any kind with "Southland The Towing Company, Inc." or its owner/director Roberto Muriedas. 11. "Roberto Muriedas" was the owner/director of "Southland The Towing Company, Inc." 12. "Roberto Muriedas," who was indicted and sentenced in connection with the bribery of City of Miami Police officers, has never had and does not have any interest, relationship, association, or affiliation of any kind with any of our companies. 13. Neither myself, nor Noel Vigil Benitez, nor Ernesto Socorro have any relationship or association with "Southland The Towing Company, Inc.," or Roberto Mureidas. 14. "Manuel Marono" was a former business associate of "Roberto Muriedas" who, as I understand it, may have had an interest in "Southland The Towing Company, Inc.," in the past. However, we never dealt with "Manuel Marono" in reference to the acquisition of the assets "Southland The Towing Company, Inc.," from "Roberto Muriedas." Page 2 of 3 Affidavit of Elizabeth Carvajal-Fleitez 15. "Manuel Marono," has never had and does not have any interest, relationship, association, or affiliation of any kind with any of our companies. 16. Neither myself, nor Noel Vigil Benitez, nor Ernesto Socorro, nor any other manager, employee, or individual associated with any of our companies has, in the past, or is presently, the subject of any criminal investigation or prosecution. 17. On July 17, 2015, after completing some of the transition process, we created "American Towing of Miami, LLC," as a subsidiary entity of "American Towing, Inc.," to acquire the assets and towing rotation contract for the City of Miami from "Southland The Towing Company of Miami, LLC," and finalize the process. 18. We are aware that certain individuals have disparaged our companies and advanced misrepresentations to mislead the City of Miami and interfere with our contract. All of these statements to the effect that our companies have any relationship to "Southland The Towing Company, Inc.," and/or "Roberto Muriedas" are totally false. FURTHER AFFIANT SAYETH NAUGHT. STATE OF FLORIDA: } COUNTY OF MIAM -DADE } /: 2 LIZABVTII CARVAJAL f BEFORE ME, the undersigned authority, on this g clay of March, 2016, personally appeared ELZABET:D °A.RVAJAL, [ " who is personally known to me or [�] who produced .0 ./ cr_ _. as identification, and who, after being duly swo&, acknowledged andMeclared before me, under oath and penalty of perjury, that the facts contained in this affidavit are true and correct, based upon her personal knowledge, and this affidavit is given by her freely and voluntarily. • NOTARY PUBLIC, STATE OF FLORIDA Page 3 of 3 Exhibit 1 Florida Highway Patrol Hialeah Garden Police Department Town of Medley Police Department State of Florida Department of Transportation Hertz Equipment Kelly Tractor American Engineering AMR - Ambulance Ryder Truck Rental (All of Miami -Dade County) Penske Truck Rental Toyota of South Florida Auto Nation Bentley Truck Service Conway Fleet Enterprise Roadway Trucking Waste Management Esserman Acura • Freightliner of Miami Florida Detroit Diesel Gold Coast Beverages • Frito-Lay Gaby's Fleet H & R Paving Palmetto Ford • Truck Max • Planet Dodge • Pantropic