JOINT VENTURE AGREEMENT FOR _________________,
A ________________ (state) JOINT VENTURE
THIS JOINT VENTURE AGREEMENT (herein after referred to as the
"Agreement" ) is entered into this _____ day of __________, 1995,
by and among ____________________________, a _______ corporation,
and __________________________, a _________ corporation, (herein
after collectively referred to as the "Joint Venturers") for the
purpose of performing: ____________________________.
W I T N E S S E T H:
WHEREAS, the parties are desirous of forming a joint venture (the
"Venture"), under the laws of the State of _______ by execution of
this Agreement for the purposes set forth herein and are desirous
of fixing and defining between themselves their respective
responsibilities, interests, and liabilities in connection with
the performance of the before mentioned construction project; and
NOW, THEREFORE, in consideration of the mutual covenants and
promises herein contained, the Parties herein agree to constitute
themselves as joint venturers, henceforth, "Venturers" for the
purposes before mentioned, and intending to be legally bound
hereby, the parties hereto, after first being duly sworn, do
covenant, agree and certify as follows:
ARTICLE I.
DEFINITIONS:
1.1 "Affiliate" shall refer to (i) any person directly or
indirectly controlling, controlled by or under common control with
another person, (ii) any person owning or controlling 10% or more
of the outstanding voting securities of such other person, (iii)
any officer, director or other partner of such person and (iv) if
such other person is an officer, director, joint venturer or
partner, any business or entity for which such person acts in any
such capacity.
1.2 "Venturers" shall refer to ___________________ Inc., and
_________________________, and any successor(s) as may be
designated and admitted to the Venture.
1.3 "Internal Revenue Code", "Code" or "I.R.C." shall refer to the
current and applicable Internal Revenue Code.
1.4 "Net Profits and Net Losses" means the taxable income and loss
of the Venture, except as follows:
1.5 The "book" value of an asset shall be substituted for its
adjusted tax basis if the two differ, but otherwise Net Profits
and Net Losses shall be determined in accordance with federal
income tax principles.
1.6 "Project" shall refer to that certain City of Atlanta, Georgia
construction project known as
1.7 "Treasury Regulations" shall refer to those regulations
promulgated by the Department of the Treasury with respect to
certain provision of hate Internal Revenue Code.
1.16 "Percentage of Participation" shall refer to that figure set
forth in Article at section .
ARTICLE II
FORMATION, NAME, AND PRINCIPLE PLACE OF BUSINESS
2.1 FORMATION
(a) The Venturers do hereby form a joint venture pursuant to the
laws of the State of _______ in order for the Venture to carry on
the purposes for which provision is made herein.
(b) The Ventures shall execute such certificates as may be
required by the laws of the State of _______ or of any other state
in order for the Venture to operate its business and shall do all
other acts and things requisite for the continuation of the
Venture as a joint venture pursuant to applicable law.
2.2 NAME. The Name and style under which the Venture shall be
conducted is:
2.3 PRINCIPAL PLACE OF BUSINESS. The Venture shall maintain its
principal place of business at: __________________________. The
Venture may re-locate its office from time to time or have
additional offices as the Venturers may determine.
ARTICLE III
PURPOSE OF THE JOINT VENTURE
The business of the Venture shall be to perform: _______________
project having the Contract # , being entitled , and being in a
dollar amount of $_________., in accordance with the contract
documents for the Project and all such other business incidental
to the general purposes herein set forth.
ARTICLE IV
TERM
The term of the Venture shall commence as of the date hereof and
shall be terminated and dissolved upon the earliest to occur of:
(i) completion of the Project and receipt of all sums due the
Venture by the Owner, _______________________ pursuant thereto and
payment of all laborers and materialmen employed by the Venture in
connection with the project; (ii) December 31, 2000; (iii) the
unanimous agreement of the Ventures; or (iv) the order of a court
of competent jurisdiction.
ARTICLE V
PERCENTAGE OF PARTICIPATION
5.1 Except as otherwise provided in sections 6.0 and 9.0 hereof,
the interest of the Parties in any gross profits and their
respective shares in any losses and/or liabilities that may result
from the filing of a joint bid and/or the performance of the
Construction Contract, and their interests in all property and
equipment acquired and all money received in connection with the
performance of the Construction Contract shall be as follows:
Name Joint Venture Partner Percentage
5.2 The Parties agree that in the event any losses arises out of
or results from the performance of the Project, each Venturer
shall assume and pay the share of the losses that is equal to the
percentage of participation.
5.3 If for any reason, a Venturer sustains any liabilities or is
required to pay any losses arising out of or directly connected
with the construction of the Project, or the execution of any
surety bonds or indemnity agreements in connection therewith,
which are in excess of its Percentage of Participation, in the
Joint Venture, the other Venturer shall promptly reimburse such
Venturer this excess, so that each and every member of the Joint
Venturer will then have paid its proportionate share of such
losses to the full extent of its Percentage of Participation.
5.4 The Venturers agree to indemnify each other and to hold the
other harmless from, any and all losses of the Joint Venture that
are in excess of such other Venturer's Percentage of
Participation. Provided that the provisions of this subsection
shall be limited to losses that are directly connected with or
arise out of the performance of the Project and/or the execution
of any bonds or indemnity agreements in connection therewith and
shall not be relate to or include any incidental, indirect or
consequential losses that may be sustained or suffered by a Party.
5.5 The Parties shall from time to time execute such bonds and
indemnity agreements, including applications there and other
documents that may be necessary in connection with the performance
of the Project. Provided however, that the liability of each of
the Parties under any agreements to indemnify a surety company or
surety companies shall be limited to the percentage of the total
liability assumed by all the Parties under such indemnity
agreements that is equal to the Party's Percentage of
Participation.
5.6 INITIAL CONTRIBUTION OF THE VENTURE.
(a) The Venturers shall contribute the Property to the Venture and
their Capital Account shall each be credited with the appropriate
value of such contribution in accordance with their Venture
interests.
(b) Except as otherwise required by law or this Agreement, the
Venturers shall not be required to make any further capital
contributions to the Venture.
5.7 VENTURE INTERESTS
Upon execution of this Agreement, the Venturers shall each own the
following interests in the Venture:
Joint Venture Partner: Percentage
(a) ________________________________
(b) _________________________________
5.8 RETURN OF CAPITAL CONTRIBUTIONS.
(a) No Venturer shall have the right to withdraw his capital
contributions or demand or receive the return of his capital
contributions or any part thereof, except as otherwise provided in
this Agreement.
(b) The Venturers shall not be personally liable for the return of
capital contributions or any part thereof, except as otherwise
provided in this Agreement.
(c) The Venture shall not pay interest on capital contributions of
any Venturer.
5.9 ALLOCATIONS OF NET PROFITS AND LOSSES
Subject to the provisions of this Article, the Net Profits and
losses of the Venture (including any net "book" gains of the
Venture resulting from a Capital Event) shall be allocated to the
Venturers in the following priority:
A. NET PROFITS:
(1) First, to those Venturers with negative Capital Accounts,
between them in proportion to the ratio of their negative Capital
Account balances, until no Venturer has a negative Capital
Account.
(2) Thereafter, to the Venturers, pro-rata, based on their
respective Venture interests as set forth in Section 5.2 hereof.
B. NET LOSSES:
(1) Subject to the provisions of this Article VI, Net Losses of
the Venture (including any net "book" loss of the Venture
resulting from a Capital Event) shall be allocated to the
Venturers, pro rata, based upon their respective Venture interests
as set forth herein.
(2) For purposes of this, Capital Accounts shall be adjusted
hypothetically as provided for in Sections 1.704-1(b)(2)(ii)(d)
and 1.704- 1(b)(4)(iv)(f) of the Treasury Regulations. These
adjustments shall include the qualified income offset as set forth
in this Agreement.
C DISTRIBUTIONS. Distributable Cash of the Venture shall be
distributed to the Venturers, pro rata, based on their respective
Venture interests as set forth herein.
ARTICLE VI:
POLICY COMMITTEE
6.1 The management of the Joint Venture shall be conducted
pursuant to policy established by the Parties acting through a
"Policy Committee" which is hereby established.
6.2 Except as provided in sections 6.0 and 9.0, each Party shall
have a voice in the Policy Committee equal to its Percentage of
Participation. For such purpose each Party is assigned the
following number of votes and hereby designates the following
representatives to exercise such votes:
PARTY VOTES REPRESENTATIVES
6.2 Each Venturer may, at any time, substitute an alternative in
place of any of its above-named representatives by serving written
notice to all the other Parties. Each Venturer's representative or
alternative representative on the Policy Committee is hereby
granted and shall hereafter possess authority to act for such
Venturer on all matters of interest to it with respect to its
participation in the joint venture.
6.3 The Policy Committee shall determine the policy for the
management of the joint venturer by majority vote and, as used in
this Agreement, a "majority vote" is defined to be any figure
greater than one-half of the authorized votes.
6.4 The Policy Committee shall have the following powers:
(a) To determine the time and place of holding its meetings and
the procedures for conducting Committee Affairs.
(b) To determine and act upon the various matters, expressly or
impliedly contained in other section of this Agreement, which
require decision by the Policy
Committee.
(c) To determine and act upon any other matters of joint interest
to, or requiring prompt action by the Joint Venture.
(d) To determine rental rates not specifically set out in the
Additional Provisions of this Agreement for equipment owned by the
Venturers and made available for use on this project. Any
equipment owned by third parties will be invoiced to the joint
venture at actual rental costs.
(e) To determine insurance reserves and reserves for other
potential liabilities that may result from or arise out of the
Project work.
(f) To consider all claims and disputes of any kind between the
joint venture and the Owner, subcontractors and/or third Parties
and to authorize negotiation, arbitration, litigation, and/or any
other process for their resolution and to authorize the settlement
thereof.
6.5 Notwithstanding any other provisions to the contrary herein,
insurance coverages and limits shall be subject to approval of all
the parties.
6.6 The Policy Committee shall generally perform its duties at a
meeting at which all designated representatives of the Parties are
present, but where circumstances warrant, telephone communication
between all party representatives or their alternatives is
authorized.
6.7 Except as otherwise provided in the Additional Provisions
herein, the salaries and expenses of each of the representatives
on the Committee shall be borne by the Party whom the
representative has been designated to represent and shall not be
an expense to the joint venture.
ARTICLE VII
DELEGATION OF AUTHORITY
7.1 The Venturers agree to a split of authority betweens
themselves as follows:
a. ________________________ shall be the Administrative Managing
Partner responsible for all bookkeeping and payroll of the Joint
Venture.
b. ________________________ shall be the Project Managing Partner
in charge of the Project Work.
7.2 The Project Managing Partner shall appoint the General Manager
through whom it shall direct charge and supervision of all matters
necessary and connected with the performance of the Construction
Contract, with the exception of that performed by the
Administrative Managing Partner.
7.3 Authority to act for and bind the Venturers in connection with
any and all of the performance of the Project may be delegated in
writing by unanimous vote of the Venturers to any designated
individual(s).
ARTICLE VIII
JOINT VENTURE BANK ACCOUNTS
8.1 All Working Capital or other funds received by the Joint
Venture in connection with the performance of the project shall be
deposited in a Checking Account, set up especially for the Joint
Venture, and requiring the joint signatures of the parties for any
withdrawals. Said accounts shall be kept separate and apart from
any other accounts of the Venturers.
8.2 Withdrawal of funds from the Joint Venture's Joint Checking
Account may be made in such amount and by such persons as
authorized by the Policy Committee.
ARTICLE IX
ACCOUNTING AND AUDITING
9.1 Separate books of accounts shall be kept by the Administrative
Managing Partner of the transactions of the Joint Venture. Any
Venturer may inspect such books upon reasonable notice and at any
reasonable time.
9.2 Periodic audits may be made upon said books at such time as
authorized by the Policy Committee by persons designated by the
same and copies of said audit shall be furnished to all Venturers.
9.3 Upon completion of the Project, a final audit shall be made
and copies of such audit shall be furnished to each of the
parties.
9.4 It is understood and agreed that the method of accounting used
by the Administrative Managing Partner and for state and federal
income tax purposes shall be the cash based method and that the
accounting year shall be the calendar year.
9.5 The Administrative Managing Partner shall receive additional
compensation in the amount of 3% of the total Project amount for
the use of its data processing system and accounting, payroll and
tabulating work. Work performed by the Administrative Managing
Partner's in-house counsel or executive secretary on behalf of the
Joint Venture shall be charged separately to the Joint Venture's
account at a rate agreed upon by the Venturers.
ARTICLE X
RESOLUTION OF DISPUTES
10.1 All disputes arising out of this Joint Venture Agreement
between the Venturers that is not resolvable by good faith
negotiations by the same, shall be filed in the Atlanta division
of the GAMA, Inc., and shall be settled by arbitration under the
rules of the GAMA, Inc. In so agreeing the parties expressly waive
their right, if any, to a trial by jury of these claims and
further agree that the award of the arbitrator shall be final and
binding upon them as though rendered by a court of law and
enforceable in any court having jurisdiction over the same.
ARTICLE XII
OTHER PROVISIONS
11.1 This agreement constitutes the entire agreement of the
parties and may not be altered, unless the same is agreed upon in
writing signed and acknowledged by the parties.
11.2 This agreement is binding upon the heirs, court appointed
representatives, assigns, and successors of the parties.
11.3 This agreement shall be governed by the laws of the state
of________________.
So agreed and executed this ____, day of ____________, 1995.
__________________________
JOINT VENTURE PARTNER #1
__________________________
JOINT VENTURE PARTNER #2
At Munley,
Munley & Cartwright, our goal is to provide exceptional legal services to our
clients. We strive to achieve the highest standard of excellence for the
protection of individual rights through team work and the use of our
considerable resources and experience. For a free consultation regarding
your legal concerns, please submit the below, or call us at:
1-800-318-LAW1
|
