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HomeMy WebLinkAboutTower Theatre Producations - Assumption Agreement - 07.21.2022,,,.D , ,··,...,j,,>-. -~ .-t•-":' ... 7 ~ ..2 / -.;}::L GENERAL CONTRACT ASSIGNMENT AND ASSUMPTION AGREEMENT THIS GENERAL CONTRACT ASSIGNMENT AND ASSUMPTION AGREEMENT ("Assignment Agreement") is dated as of July 21, 2022 ("Assignment Date"), by and between TOWER THEATRE PRODUCTIONS, a California general partnersh ip, or its agent ("Assignor"), and the CITY OF FRESNO, a charter city ("Assignee"). RECITALS A. Assignor is the owner of that certain real property located in the City of Fresno, County of Fresno, State of California, located at 1247 North Wishon (APN 451-265-02) and 777 East Olive Avenue (APN 451-265-03) in the City of Fresno, CA together with all improvements thereon (collectively, "Property"). 8. On April 28, 2022, Assignor and Assignee entered into an Agreement for Purchase and Sale of Real Property under Threat of Condemnation and Joint Escrow Instructions pursuant to which Assignee agreed to purchase the Property from Assignor ("Purchase Agreement"). C. The Property is subject to certain service, maintenance and other contracts identified on Exhibit A attached hereto and incorporated herein by reference ("Contracts"). D. Assignee wishes to acquire , and Ass ignor is willing to transfer, Assignor's interest in the Contracts concurrent with the Assignee 's acqu isition of the Property from Ass ignor. Accordingly, th is Assignment Agreement shall only be effective upon the close of escrow convey ing the Property from Assignor to Assignee pursuant to the Purchase Agreement which date is set forth above as the Assignment Date. NOW, THEREFORE, in consideration of the mutual promises of the parties, and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the parties agree as follows: 1. Recitals. All of the foregoing recitals are true and correct and are incorporated herein by reference . 2. Assignment. Assignor hereby assigns , sells, conveys , and otherwise transfers to Assignee all of Assignor's interests, rights, and obligations under the Contracts. This ass ignment shall be effective as of the Assignment Date. Assignee's execution hereof confirms that Assignor shall no longer remain liable for the performance of any obligations , terms , covenants , or conditions under the Contracts arising after the Assignment Date and that Ass ignee hereby agrees to forever release Assignor from the performance of any such obligations, terms, covenants, and conditions under the Contracts. 3. Assumption of Obligations and Rights. Assignee hereby accepts all of Assignor's interests, rights , and obligations under the Contracts arising after the Assignment Date and assumes and agrees to perform all of Assignor's corresponding obligations, terms, covenants, and conditions under the Contracts accruing from, and after the Closing Date. 4. Representations, Warranties and Covenants. All Assignor 's and Assignee 's representations, warranties and covenants set forth in the Purchase Agreement shall survive the Closing and are incorporated into th is Assignment Agreement. --------- 5. Due Execution. The person(s) executing this Assignment Agreement on behalf of the parties hereto warrant that: (i) such party is duly organized and existing; (ii) they are duly authorized to execute and deliver this Assignment Agreement on behalf of said party; (iii) by so executing this Assignment Agreement, such party is formally bound to the provisions of this Assignment Agreement; and (iv) the entering into of this Assignment Agreement does not violate any provision of any other agreement to which said party is bound. 6. Effect on Ass igned Contract. Except for the assignment of Assignor's interests to Assignee in accordance with the provisions of this Assignment Agreement, the parties further agree that nothing in this Assignment Agreement shall be deemed as modifying or otherwise affecting any of the provisions of the Contracts . 7. Indemnification. Subject to that certain Joint Litigation, Defense and Indemnification Agreement, Assignor agrees to indemnify, defend, and hold harmless Assignee and all persons and entities affiliated with Assignee including their respective officers, agents and employees from and against any and all claims, liabilities, and losses (collectively, "Claims ") arising out of the Contracts arising before the Assignment Date, including any Claims arising as a result of any inaccuracies in Assignor's representations and warranties set forth in the Purchase Agreement and in this Assignment Agreement. Assignee shall indemnify, defend, and hold harmless Assignor and all persons and entities affiliated with Assignor including their respective officers, agents and employees from and against any and all Claims arising out of the Contracts arising after the Assignment Date, including any Claims arising as a result of any inaccuracies in Assignee's representations and warranties set forth in the Purchase Agreement and in this Assignment Agreement. IN WITNESS WHEREOF, the parties have executed this Assignment Agreement as of the Assignment Date. ASSIGNOR: ASSIGNEE: TOWER THEATRE PRODUCTIONS, a California general partnership By: Tower Theater Properties, a California corporation General Partner By: ---------- Its: By: Pacific Produce Distributors, Inc., APPROVED AS TO FORM a California corporation General Partner CITY ATTORNEY'S OFFICE By: ___ ____ _ Its: --------- 2 5. Due Execution. The person(s) executing this Assignment Agreement on behalf of the parties hereto warrant that: (i ) such party is duly organized and existing; (ii) they are duly authorized to execute and deliver this Assignment Agreement on beha lf of sa id party; (iii) by so executi ng thi s Ass ig nm e nt A greement, s uc h pa rty is formally bou nd to the provisions of this Ass ign m en t Agree me nt; and (i v ) 1h e en t e ring i nt o of thi s Assignment Ag reement does not violate any p rov is io n of any other agreement to w hich sa id party is bound . 6. Effect on Assigned Contract. Except for the assignment of Assignor's interests to Assignee in accordance with the provisions of this Assignment Agreement, the parties further agree that nothing in this Assignment Agreement shall be deemed as modifying or otherwise affecting any of the provisions of the Contracts . 7. Indemnification. Subject to that certain Joint Litigation, Defense and Indemnification Agreement, Assignor agrees to indemnify , defend, and hold harmless Assignee and all persons and entities affiliated with Assignee including their respective officers, agents and employees from and against any and all claims, liabilities , and losses (colle ct ivel y, "Claims") arising out of the Contracts arising before the Assignment Date, including any Claims arising as a result of any inaccuracies in Assignor's representations and warranties set forth in the Purchase Agreement and in this Assignment Ag re ement. Assignee shall indemnify, defend, and hold harmless Assignor and all persons and entiti es affiliated with Assignor including their respective officers, agents and employees from and against any and all Claims arising out of the Contracts arising after the Assignment Date, including any Claims arising as a result of any inaccuracies in Assignee's representations and warranties set forth in the Purchase Agreement and in this Assignment Agreement. IN WITNESS WHEREOF, the parties have executed this Assignment Agreement as of the Assignment Date . ASSIGNOR: ASSIGNEE: TOWER THEATRE PRODUCTIONS , a CITY OF FRESNO , a charter city California general partnership By : By : Tower Theater Properties, Georgeanne White, City Manager a California corporation General Partner Todd Stermer, City Clerk By: Pacific Produce Distri to rs, Inc., APPROVED AS TO FORM a California cor porati n General Partner CITY ATTORNEY'S OFFICE By ~ lts : cj,.o By : ----------- Rina Gonzales , Interim City Attorney 2 EXHIBIT A IDENTIFICATION OF CONTRACTS 1. Contemporary Services Corporation (Agreement for Crowd Management Services} dated February 17, 2022. 2. Comcast Business Service Contract dated February 23, 2022 The City does not accept the assignment of any tow contracts.