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HomeMy WebLinkAboutExhibitACCEPTANCE OF ASSIGNMENT This agreement ("Acceptance of Assignment") is entered into , 2019, but effective as of March 30, 2018, between the City of Miami, a municipal corporation of the State of Florida ("City") and Keith and Schnars, P.A., a Delaware corporation. RECITALS WHEREAS, pursuant to Section 18-87 of the City Code, the City Manager approved the recommendation of award of Request for Qualifications ("RFQ") No. 16-17-027 for the provision of Miscellaneous Surveying and Mapping Services to various providers, including Keith and Schnars, P.A. ("Keith") for an initial contract term of two (2) years with the option to extend for two (2) additional one (1) year periods; and WHEREAS, on March 30, 2018, a Professional Services Agreement ("Agreement") was executed between Keith and the City of Miami ("City"); and WHEREAS, pursuant to Article 10.03 of the Agreement, titled Successors and Assigns, said Agreement "shall not be transferred, pledged, sold, delegated, or assigned, in whole or in part, by the Consultant without the written consent of the City, acting by and through, its City Commission"; and WHEREAS, on or about January 1, 2019, Keith entered into a Confirmatory Bill of Sale and Assignment of Assets, a copy of which is included in the agenda packet for this item, was assigned, transferred, and conveyed to KCI Technologies, Inc. ("KCI") without the prior written consent of the City; and WHEREAS, KCI is now the parent company and sole shareholder and accepts any and all obligations of said Agreement. 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 KCI for the provision of Miscellaneous Surveying and Mapping Services contingent upon: (1) KCI's compliance with all requirements set forth in the Agreement; and (2) KCI'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 Keith and KCI, 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. KCI TECHNOLOGIES, INC.'S ACCEPTANCE: By execution of this Acceptance of Assignment, KCI Technologies, Inc. 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. KCI Technologies, Inc. Nathan J. Beil CEO KCI Technologies, Inc. 936 Ridgebrook Roads Sparks, MD 21152 To the Citv Emilio T. Gonzalez, Ph.D. 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 City of Miami 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. 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. ATTEST: Todd B. Hannon, City Clerk ATTEST: Print Name: Title: APPROVED AS TO FORM AND CORRECTNESS: Victoria Mendez City Attorney Resolution: "City" CITY OF MIAMI, a municipal corporation in Emilio T. Gonzalez, Ph.D. "Consultant" KCI Technologies, Inc. a foreign profit corporation By: Print Name: Nathan J. Beil Title: CEO APPROVED AS TO INSURANCE REQUIREMENTS: Ann -Marie Sharpe, Director Risk Management Attachment A Proof of assignment from Keith and Schnars, P.A. to KCI Technologies, Inc. CONFIRMATORY BILL OF SALE AND ASSIGNMENT OF ASSETS THIS CONFIRMATORY BILL OF SALE AND ASSIGNMENT OF ASSETS is executed and delivered effective as of the lst day of January. 2019, by and between Keith and Schnars, P.A., a Florida professional association (the "Seller''), and KCI Technologies, Inc.. a Delaware corporation (the "Buyer'). All capitalized terms used but not otherwise defined in this Bill of Sale and Assignment of Assets shall have the meanings given to them in the Purchase Agreement (as defined below). WHEREAS, the Buyer and the Seller have entered into an Asset Purchase Agreement, of even date herewith (the "Purchase Atreement-'), providing for the purchase by the Buyer of substantial assets of the Seller related to Seller's Business (as defined in the Purchase Aareement). The Closing under the Purchase Agreement occurred on Januan 1, 2019, and the Parties herehv confirm the sale and assivnment of all of the Purchased Assets under the Purchase A-reencent effective as of such date. NOW, THEREFORE, pursuant to the Purchase Agreement, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Seller hereby grants, bargains, sells, delivers, transfers, sets over, assigns, and conveys to the Buyer and its successors and assigns, free and clear of any and all Encumbrances of any kind, other than Permitted Encumbrances, all of the Purchased Assets (as defined in the Purchase Agreement); provided, however, that the Purchased Assets shall not include any liability or obligation other than the Assumed Liabilities (as defined in the Purchase Agreement). TO HAVE AND TO HOLD the Purchased Assets unto the Buyer and its successors and assigns, to its and their own use and benefit forever, and the Seller, for itself and its successors and assigns, covenants to and agrees with the Buyer to warrant and defend the sale, transfer, assignment, conveyance, and delivery of the Purchased Assets unto the Buyer and its successors and assigns, against all lawful claims and demands. The Seller covenants and agrees with the Buyer that the Seller will, whenever and as often as reasonably required to do so by the Buyer, do, execute, acknowledge, and deliver any and all other and further acts, titles, deeds, assignments, transfers. conveyances, confirmations, powers of attorney and any instrument of further assurance, approvals, and consents as the Buyer may reasonably require in order to complete, ensure, and perfect the transfer, conveyance, and assignment to the Buyer of all the right, title, and interest of the Seller in and to each of the Purchased Assets. Nothing in this instrument, expressed or implied, is intended or shall be construed to confer upon or give to any person, firm or corporation other than the parties hereto and their respective successors and assigns any remedy or claim under or by reason of this instrument or any term, covenant, or condition hereof; and all the terms. covenants, conditions and agreements in this instrument shall be for the sole and exclusive benefit of the parties hereto and their respective successors and assigns. All of the terms and provisions of this Bill of Sale and Assignment of Assets shall be bindin, upon the Seller and its respective successors and assigns, and shall inure to the benefit of the Buyer and its successors and assigns. This Bill of Sale and Assignment of Assets shall be governed by the laws of the State of Florida, without reference to any conflicts of laws principles. This Bill of Sale and Assignment of Assets may be executed in counterparts and deliver by electronic transmission, all of which counterparts shall be deemed to be one and the same original agreement. - V,natzires appear on 1he follolving pages - 2 IN WITNESS WHEREOF, the parties have caused the due execution of this Confirmatory Bill of Sale and Assignment of Assets, under seal. as of the day and year first above written. KEITH AND SCHNARS, P.A. By: ! 'i �r (SEAL) Name: Errol Kalayc6l / 1 Title: President On this I�Aday of in the year 2019 before rne, the undersigned, personally appeared Enol Kalayci, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument, and that such individual made such appearance before the undersigned in �fgre� County, State of Florida. . Z,4 COT AR •� i �� • PIJBL\G • c 0/ - County ;�N\. /!/1111 1110\ OTAR-Y PUBLIC My Commission Expires: 074- % 1! h.0 2 Z- - - Signatures continue on the• following page - Signature page to Confirmatory Bill oJSale and.tssignment of Assets KCI TECHNOLOGIES, INC. ► By: (SEAL) Name: `; „�a,� • 8�`� Title: PM-- Oil £ On this 7A day of re 6rc f�l in the year 2019 before me, the undersigned. personally appeared (&4kayl 3 li � personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, that by his signature on the instrument, the individual. or the person upon behalf of which the individual acted, executed the instrument, and that such individual made such appearance before the undersigned in 60J�.e ore- County, State of Marviand. A.G._ 1Lr1tk P. j J --Z— TARY PUBLIC 4y Commission Expires: 6q1 J► /To ZZ Signature page to ConfirtnatOIT Bill of Sale and Assignment of . tssets FINAL I DECEMBER 31, 2018 ASSIGNMENT AND ASSUMPTION AGREEMENT This ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement") is made and delivered as of January 1, 2019, by and between Keith and Schnars, P.A., a Florida professional association ("Assignor"), and KCI Technologies, Inc., a Delaware corporation ("Assignee"), pursuant to that certain Asset Purchase Agreement, of even date herewith (the "Purchase Agreement"). All capitalized terms used but not otherwise defined in this Agreement shall have the meanings given to them in the Purchase Agreement. 1. Assignment and Assumption. Assignor hereby sells, transfers, assigns and delivers to Assignee, and its successors and assigns, to have and hold forever, all of Assignor's right, title, and interest in and to all of the Assumed Agreements, free and clear of all Encumbrances other than Permitted Encumbrances. Assignee hereby accepts the foregoing transfer, assignment, and delivery of the Assumed Agreements and assumes all obligations under the Assumed Agreements; provided, that Assignee is not assuming any liability under the Assumed Agreements arising out of a breach or default thereunder by Assignor occurring prior to the Closing Date. 2. Relation to the Purchase Agreement. This Agreement is made subject to and with the benefit of the representations and warranties, covenants, indemnities, terms, conditions and other provisions of the Purchase Agreement, all of which shall survive the execution and delivery of this Agreement in accordance with the terms and conditions of the Purchase Agreement. This Agreement shall not in any way supersede the Purchase Agreement, which remains in full force and effect, and the parties thereto shall have the rights, duties and obligations provided thereunder. Nothing in this Agreement shall be deemed to limit, modify or expand any obligations, liabilities or any representations, warranties, covenants, indemnities, terms, conditions, or other provisions set forth in the Purchase Agreement. In the event of any conflict or other inconsistency between this Agreement and the Purchase Agreement, the Purchase Agreement shall be the controlling agreement. 3. Governing Law. This Agreement shall be construed and enforced in accordance with and shall be governed by the laws of the State of Florida. 4. Amendments. This Agreement may be amended, modified, supplemented or changed in whole or in part only by an agreement in writing making specific reference to this Agreement and executed by each of the parties hereto. 5. Countemarts. This Agreement may be executed in several counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument when taken together. Any signature on a copy of this Agreement or any document necessary or convenient thereto sent by facsimile or other electronic means (i.e., via PDF, email, etc.) shall be binding upon transmission by facsimile or other electronic means, and the facsimile or other electronic copy may be utilized for the purposes of this Agreement. - Signatures appear on the following page - 4820-665445131v.2 IN WITNESS WHEREOF, each of the parties hereto has caused this Assignment and Assumption Agreement to be executed and delivered by its duly authorized representative as of the date first set forth above. ASSIGNOR: KEITH AND SC By: i Name: Errola}�c/ i Title: Presidl ASSIGNEE: KCI Technologies, Inc. By: Name: Nathan J. Beil Title: CEO 4820-663445131Y.2 IN WITNESS WHEREOF, each of the parties hereto has caused this Assignment and Assumption Agreement to be executed and delivered by its duly authorized representative as of the date first set forth above. ASSIGNOR: KEITH AND SCHNARS, P.A. By: Name: Errol Kalayci Title: President ASSIGNEE: KCI Technologies, Inc. By: Name: ZZ", . Beil ` Title: CFO 4820-6654-45131v.2