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HomeMy WebLinkAboutR-2021-192 Westrec Marina Management, Inc. Assignment and Assumption of Marina and Pier Management Agreements to Westrec SMI OpCo, LLCRESOLUTION NO.2021-192 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DANIA BEACH, FLORIDA, RELATING TO THE ASSIGNMENT AND ASSUMPTION OF (1) THE MARINA MANAGEMENT AGREEMENT DATED OCTOBER 1, 2016 BETWEEN THE CITY OF DANIA BEACH AND WESTREC MARINA MANAGEMENT, INC., AS MANAGER AND OPERATOR OF THE MARINA LOCATED AT 151 NORTH BEACH ROAD, DANIA BEACH ("MARINA"), AND (2) THE FISHING PIER MANAGEMENT AND BAIT SHOP OPERATIONS AGREEMENT, DATED AUGUST 1, 2014 (THE PIER MANAGEMENT AGREEMENT), WHICH AGREEMENTS COLLECTIVELY SHALL BE KNOWN AS THE "MANAGEMENT AGREEMENTS", TO BE ASSIGNED TO WESTREC SMI OPCO, LLC, A DELAWARE LIMITED LIABILITY COMPANY ("ASSIGNEE"), WHICH IS A SUBSIDIARY OF SUNTEX MARINA INVESTORS, LLC, A DELAWARE LIMITED LIABILITY COMPANY.; AUTHORIZING THE PROPER CITY OFFICIALS TO EXECUTE THE ASSIGNMENT AND ASSUMPTION OF THE MANAGEMENT AGREEMENTS; PROVIDING FOR CONFLICTS; FURTHER, PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, on October 1, 2016, the City of Dania Beach ("City"), and Westrec Marina Management, Inc. ("Westrec"), a California Corporation, entered a Marina Management Agreement ("Marina Management Agreement"), with Westrec as manager and operator of the Dania Beach Marina, located at 151 North Beach Road, Dania Beach, Florida; and WHEREAS, on August 1, 2014, the City and Westrec entered into the Fishing Pier Management and Bait Shop Operations Agreement for Westrec to maintain and operate the City's fishing pier and bait shop; and WHEREAS, on December 6, 2021, pursuant to Section 2(k) of the Marina Management Agreement, and Section 8 of the Pier Management Agreement, Westrec provided the City notice of Westrec's intent to assign the two Management Agreements; and WHEREAS, the Assignee is Westrec SMI OpCo, LLC, a Delaware limited liability company ("Assignee"), a subsidiary of Suntex Marina Investors, LLC, a Delaware limited liability company ("Suntex"); and WHEREAS, pursuant to the Agreements the City cannot unreasonably withhold consent to the assignments; and WHEREAS, the City has completed its due diligence and confirms that Westrec is not in default under the Management Agreements; and WHEREAS, the proposed assignee ("Assignee") has provided to the City all relevant corporate information, a copy of the company's latest audit information, and corporate structure information which has been reviewed by the Finance Department; and WHEREAS, the existing management company is being absorbed into the new company, and the officers of Westrec shall become officers within the new company seeking the Assignment; and WHEREAS, the administration has no objection to the Assignment request for the Management Agreements to be assigned to Westrec SMI OpCo, LLC, a Delaware limited liability company ("Assignee"), a wholly owned subsidiary of Suntex Marina Investors LLC.; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF DANIA BEACH, FLORIDA: Section 1. That the above "Whereas" clauses are ratified and confirmed as being true and correct, and they are made a part of and incorporated into this Resolution by this reference. Section 2. That the City Commission approves the request to assign the Management Agreements as stated above and City officials are authorized to execute the necessary Consent documents. Section 3. That the City Manager and City Attorney are authorized to make minor revisions to the Assignment of the Management Agreements as are deemed necessary and proper for the best interests of the City. Section 4. That all resolutions or parts of resolutions in conflict with this Resolution are repealed to the extent of such conflict. Section 5. That this Resolution shall be in force and take effect immediately upon its passage and adoption. 2 RESOLUTION #2021-192 PASSED AND ADOPTED on December 14, 2021. ATTEST: THOMAS SCHNEIDER, CMC CITY CLERK APPROVED AS TO F AND CORRECTNESS: r THOMAS J. A iSBR CITY ATTORNVY TAMARA JAMES MAYOR RESOLUTION #2021-192 ASSIGNMENT AND ASSUMPTION OF MARINA MANAGEMENT AGREEMENT AND CONSENT [Dania Beach Marina] This Assignment and Assumption of Marina Management Agreement (this "Assignment") is made and entered into as of , 202_ (the "Effective Date"), by and between WESTREC MARINA MANAGEMENT, INC., a California corporation ("Assignor") and WESTREC SMI OPCO, LLC, a Delaware limited liability company ("Assignee"), a subsidiary of Suntex Marina Investors LLC, a Delaware limited liability company ("SMI"), and is acknowledged and consented to by the City of Dania Beach, Florida, a Florida municipal corporation ("Owner"). Capitalized terms used without definition shall have the meanings ascribed to them in the Purchase Agreement (defined below). RECITALS A. Assignor, together with other parties identified individually as a Seller and collectively as Sellers, and SMI, as Purchaser, are parties to that certain Purchase and Sale Agreement made as of October 27, 2021 (the "Purchase Agreement"). B. Pursuant to that certain Marina Management Agreement dated as of October 1, 2016 (as amended, the "Agreement"), between Assignor and Owner, Assignor is the manager under the Agreement and operates, manages, maintains and provides security for the marina located at 151 North Beach Road, Dania Beach, Florida 33004 (the "Marina") for, and on behalf of, Owner. C. Pursuant to the Purchase Agreement, Assignor agreed to sell, convey and assign to Assignee, and Assignee agreed to accept from Assignor, all of Assignor's right, title and interest in the Agreement. D. The Agreement is a Management Agreement, as that term is defined in the Purchase Agreement. E. The Marina is a Managed Property, as that term is defined in the Purchase Agreement. F. Assignor desires to sell, convey and assign to Assignee all of Assignor's right, title and interest in, and duties and obligations under, the Agreement. G. Assignee desires to assume all of Assignor's right, title and interest in, and duties and obligations under, the Agreement. H. Pursuant to Section 2(m) of the Agreement, no assignment or subcontract is permitted without the prior written consent of the Owner, including an assignment made pursuant MIAMI 8997972.3 100255/300762 to a corporate acquisition or merger. NOW, THEREFORE, for and in consideration of the premises and the mutual covenants contained in this Assignment, and for other good and valuable consideration, the receipt, adequacy and legal sufficiency of which are acknowledged, the parties agree as follows: 1. Recitals. The foregoing recitals are hereby incorporated by reference as an integral part of this Assignment. 2. Assigning . Assignor hereby sells, conveys and assigns to Assignee, without representation, warranty or recourse (except as expressly set forth in the Purchase Agreement), all of Assignor's right, title and interest in, and duties and obligations under, the Agreement. 3. Assumption. Assignee hereby assumes all of Assignor's right, title and interest in, and duties and obligations under, the Agreement, and Assignee agrees to perform, fulfill and observe all of the duties, obligations, responsibilities and liabilities of Assignor arising from and after the Effective Date. 4. Consent. Owner hereby acknowledges and consents to this Assignment. 5. Miscellaneous. This Assignment is binding upon and shall inure to the benefit of the parties and their successors, heirs, assigns. This Assignment may be executed in counterparts, each of which shall be deemed an original, but all of which when taken together shall constitute one and the same instrument. Electronically transmitted signatures shall be deemed effective as originals. [SIGNATURE PAGES FOLL0WJ MIAMI 8997972.3 100255/300762 IN WITNESS WHEREOF, the undersigned have executed this Assignment effective as of the Effective Date. ASSIGNOR: WESTREC MARINA MANAGEMENT, INC., a California corporation By: Name: Jeffrey K. Ellis Title: Chief Financial Officer ASSIGNEE: WESTREC SMI OPCO, LLC, a Delaware limited liability company By: Name: William W. Anderson Title: President Signature Page to Assignment and Assumption of Marina Management Agreement and Consent (Dania Beach Marina) IN WITNESS WHEREOF, the undersigned has acknowledged and consented to this Assignment effective as of the Effective Date. OWNER: City of Dania Beach, a Florida municipal corporation By: _ Name: Title: Signature Page to Assignment and Assumption of Marina Management Agreement and Consent (Dania Beach Marina) ASSIGNMENT AND ASSUMPTION OF MANAGEMENT AGREEMENT AND CONSENT [Dania Beach Pier] This Assignment and Assumption of Management Agreement (this "Assignment") is made and entered into as of , 202_ (the "Effective Date"), by and between WESTREC MARINA MANAGEMENT, INC., a California corporation ("Assignor") and WESTREC SMI OPCO, LLC, a Delaware limited liability company ("Assignee"), a subsidiary of Suntex Marina Investors LLC, a Delaware limited liability company ("SMI"), and is acknowledged and consented to by the City of Dania Beach, Florida, a Florida municipal corporation ("Owner"). Capitalized terms used without definition shall have the meanings ascribed to them in the Purchase Agreement (defined below). RECITALS A. Assignor, together with other parties identified individually as a Seller and collectively as Sellers, and SMI, as Purchaser, are parties to that certain Purchase and Sale Agreement made as of October 27, 2021 (the "Purchase Agreement"). B. Pursuant to that certain Management Agreement dated as of August 1, 2014 (as amended, the "Agreement"), between Assignor and Owner, Assignor is the manager under the Agreement and operates, manages and maintains the fishing pier and bait shop located at 100 North Beach Road, Dania Beach, Florida 33004 (the "Pier") for, and on behalf of, Owner. C. Pursuant to the Purchase Agreement, Assignor agreed to sell, convey and assign to Assignee, and Assignee agreed to accept from Assignor, all of Assignor's right, title and interest in the Agreement. D. The Agreement is a Management Agreement, as that term is defined in the Purchase Agreement. E. The Pier is a Managed Property, as that term is defined in the Purchase Agreement. F. Assignor desires to sell, convey and assign to Assignee all of Assignor's right, title and interest in, and duties and obligations under, the Agreement. G. Assignee desires to assume all of Assignor's right, title and interest in, and duties and obligations under, the Agreement. H. Pursuant to Section 10 of the Agreement, no assignment or subcontract is permitted without the prior written consent of the Owner, including an assignment made pursuant to a corporate acquisition or merger. MIAMI 8998000.3 100255/300762 NOW, THEREFORE, for and in consideration of the premises and the mutual covenants contained in this Assignment, and for other good and valuable consideration, the receipt, adequacy and legal sufficiency of which are acknowledged, the parties agree as follows: 1. Recitals. The foregoing recitals are hereby incorporated by reference as an integral part of this Assignment. 2. Assignment. Assignor hereby sells, conveys and assigns to Assignee, without representation, warranty or recourse (except as expressly set forth in the Purchase Agreement), all of Assignor's right, title and interest in, and duties and obligations under, the Agreement. 3. Assumption. Assignee hereby assumes all of Assignor's right, title and interest in, and duties and obligations under, the Agreement, and Assignee agrees to perform, fulfill and observe all of the duties, obligations, responsibilities and liabilities of Assignor arising from and after the Effective Date. 4. Consent. Owner hereby acknowledges and consents to this Assignment. 5. Miscellaneous. This Assignment is binding upon and shall inure to the benefit of the parties and their successors, heirs, assigns. This Assignment may be executed in counterparts, each of which shall be deemed an original, but all of which when taken together shall constitute one and the same instrument. Electronically transmitted signatures shall be deemed effective as originals. [SIGNATURE PAGES FOLL0WJ MIAMI 8998000.3 100255/300762 IN WITNESS WHEREOF, the undersigned have executed this Assignment effective as of the Effective Date. ASSIGNOR: WESTREC MARINA MANAGEMENT, INC., a California corporation By: Name: Jeffrey K. Ellis Title: Chief Financial Officer ASSIGNEE: WESTREC SMI OPCO, LLC, a Delaware limited liability company By: Name: William W. Anderson Title: President Signature Page to Assignment and Assumption of Management Agreement and Consent (Dania Beach Pier) IN WITNESS WHEREOF, the undersigned has acknowledged and consented to this Assignment effective as of the Effective Date. OWNER: City of Dania Beach, a Florida municipal corporation By: _ Name: Title: Signature Page to Assignment and Assumption of Management Agreement and Consent (Dania Beach Pier)