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HomeMy WebLinkAboutReso 196-2022 (22-945)276862265 v3 1 ASSIGNMENT, ASSUMPTION AND CONSENT AGREEMENT ____________, 2022 This ASSIGNMENT, ASSUMPTION AND CONSENT AGREEMENT (this “Agreement”) is dated as of the date first set forth above (the “Effective Date”), among the City of South San Francisco (“City”), a municipal corporation, Boys & Girls Clubs North San Mateo County (“Assignor”) and Boys & Girls Clubs of the Peninsula (“Assignee”) (individually, (“party”) and collectively, “parties”). RECITALS A. On July 2, 2013, City and Assignor entered into that certain Loan Agreement (the “Loan Agreement”), under which City provided a loan in the principal amount of $100,000 consisting of federal Community Development Block Grant (“CDBG”) funds (the “Loan”) to Assignor, to construct and install the community facility rehabilitation project, as described in Exhibit C to the Loan Agreement, for the purpose of providing rehabilitation of the Boys and Girls Club located at 201 West Orange Avenue, South San Francisco, CA 94080 (the “Property”). B. The obligation to repay the Loan is evidenced by the Loan Agreement and that certain Promissory Note, dated as of July 2, 2013 (the “Note”, together with the Loan Agreement, the “Loan Documents”), issued by Assignor to City. C. Assignee operates the Boys and Girls Club located on the Property in substantially the same way as Assignor has operated it as a community membership club for youth, offering programs in character and leadership development, education and career development, health and life skills, the arts, sports, recreation and fitness. D. Assignor desires to transfer and assign all of its rights and obligations under the Loan Documents to Assignee, and Assignee desires to assume all of the rights and obligations of Assignor under the Loan Documents from Assignor (“Assumption”). E. The Loan Documents and applicable federal regulations require City’s prior written consent to the Assumption. NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and in order to induce City to consent to the Assumption the parties agree as follows: 1. Incorporation. The foregoing recitals are true and correct and are incorporated herein by this reference. 2. Assignment and Assumption. Assignor hereby assigns to Assignee, and Assignee hereby assumes, all rights, interest and obligations of Assignor and agrees to be bound by the terms and provisions of the Loan Documents as though such documents had originally been made, executed and delivered by Assignee. From and after the Effective Date, the Assignee shall be a party to and shall be bound by the provisions of the Loan Documents. 3. Representations. (a) Assignor represents and warrants that (a) it is the legal and beneficial owner of the interest being assigned by it hereunder; and (b) to Assignor’s knowledge, no event, fact or 276862265 v3 2 circumstance has occurred or failed to occur which constitutes, or with the passage of time, the giving of notice or both, would constitute an Event of Default, as such term is defined in the Loan Documents that would prevent forgiveness or assignment of the Loan. (b) Assignee (a) confirms that it has received a copy of the Loan Documents; and (b) agrees that it will perform in accordance with their terms all of the obligations that by the terms of the Loan Documents are required to be performed by it as a Participant (as defined in the Loan Agreement); and (c) represents and warrants that, to Assignee’s knowledge, no event, fact or circumstance has occurred or failed to occur which constitutes, or with the passage of time, the giving of notice or both, would constitute an Event of Default, as such term is defined in the Loan Documents that would prevent forgiveness or assignment of the Loan; and (d) Assignee has no present intent to: (i) file any voluntary petition under any Chapter of the Bankruptcy Code, Title II, U.S.C.A. (“Bankruptcy Code”), or to in any manner seek any proceeding for relief, protection, reorganization, liquidation, dissolution or similar relief for debtors (“Debtor Proceeding”) under any local, state, federal or other insolvency law or laws providing relief for debtors; (ii) directly or indirectly cause any involuntary petition under any Chapter of the Bankruptcy Code to be filed against Assignee; or (iii) directly or indirectly to cause the Loan or interest therein to become the property of any bankruptcy estate or the subject of any Debtor Proceeding. 4. City Consent. Subject to the terms of this Agreement and to the Assignee's execution of the Agreement in a form satisfactory to the City, City hereby consents to Assignee’s Assumption as if Assignee was the original signatory thereto. The parties agree that this Agreement shall not be deemed an agreement by City to consent to any other assignment of the Loan. The execution of this Agreement by Assignee shall be deemed to be execution of the Loan Agreement and Note, and Assignee agrees to be bound by all terms and conditions of the Loan Documents, and to City’s exercise of all rights and remedies pursuant thereto. 5. Disbursements. City shall have no obligation to disburse any funds to any person or party under this Agreement 6. Indemnification. Assignee shall indemnify and hold City, and its officers, agents, officials and employees free and harmless against any losses, damages, liability, claims, demands, judgments, actions, court costs, and legal or other expense (including attorneys’ fees) which arise out of or in connection with this Agreement or Assignee’s Assumption. The indemnity obligation shall not extend to any claim arising solely from the negligence or willful misconduct of City, or its officials, agents, officers and employees. This indemnification provision shall survive the expiration of this Agreement. 7. Amendments. This Agreement, including any exhibits hereto, shall not be amended or changed except in writing, signed by the parties. Any amendment or addendum to this Agreement shall expressly refer to the document being amended. 8. Non-Liability of City Officials, Employee and Agents. No member, official, employee or agent of City shall be personally liable to Transferee, its assignee or transferee in the event of any default or breach by City. 9. Conflict of Interest. No member, official or employee of City shall have any personal interest, direct or indirect, in this Agreement, nor shall any such member, official or employee participate in any decision relating to this Agreement which affect his/her personal interests or the interest of any corporation, partnership or association in which he/she is directly or indirectly interested. 276862265 v3 3 10. Successors and Assigns. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, legal representatives, successors, transferees, and permitted assigns with the prior written consent of the City. 11. Attorneys’ Fees; Enforcement. If any attorney is engaged by any party hereto to enforce or defend any provision of this Agreement, the prevailing party shall be entitled to costs and reasonable attorneys' fees. Miscellaneous. 12. Notices. All notices to be sent pursuant to this Agreement shall be made in writing, and sent to the parties at their respective addresses specified below or to such other address as a party may designate by written notice delivered to the other parties in accordance with this Section. All such notices shall be sent by: (i) personal delivery, in which case notice is effective upon delivery; (ii) certified or registered mail, return receipt requested, in which case notice shall be deemed delivered on receipt if delivery is confirmed by a return receipt; or (iii) nationally recognized overnight courier, with charges prepaid or charged to the sender’s account, in which case notice is effective on delivery if delivery is confirmed by the delivery service. City: Economic and Community Development City of South San Francisco 400 Grand Avenue South San Francisco, CA 94080 Assignee: Boys & Girls Clubs of the Peninsula 401 Pierce Road Menlo Park, CA 94025 Attn: Mitchell Bailey Assignor: Boys & Girls Clubs of North San Mateo County 955 Yosemite Drive Pacifica, CA 94044 Attn: Mandy Lipp 13. Waivers; Modification. No waiver of any breach of any covenant or provision of this Agreement shall be deemed a waiver of any other covenant or provision hereof, and no waiver shall be valid unless in writing and executed by the waiving party. 14. Construction. The headings and captions used herein are solely for convenience and shall not be used to interpret this Agreement. 15. Entire Agreement. This Agreement contains the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior written or oral agreements, understandings, representations or statements between the parties with respect to the subject matter hereof. 276862265 v3 4 16. Severability. If any term, provision, or condition of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall continue in full force and effect unless an essential purpose of this Agreement is defeated by such invalidity or unenforceability. 17. No Third Party Beneficiaries. Nothing contained in this Agreement is intended to or shall be deemed to confer upon any person, other than the parties and their respective successors and assigns, any rights or remedies hereunder. 18. Parties Not Co-Venturers. Nothing in this Agreement is intended to or shall establish the parties as partners, co-venturers, or principal and agent with one another. 19. Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to principles of conflicts of laws. Any action to enforce or interpret this Agreement shall be filed in the Superior Court of San Mateo County, California or in the Federal District Court for the Northern District of California. 20. Further Assurances. The parties each agree to execute such other instruments and to take such other actions as necessary to effectuate the intent of this Agreement. 21. Counterparts. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of this Agreement by facsimile or email (with a PDF copy attached) shall be effective as delivery of a manually executed counterpart of this Agreement. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 276862265 v3 IN WITNESS WHEREOF, Assignor, Assignee and City have caused this Agreement to be executed by their officers thereunto duly authorized as of the date specified thereon. ASSIGNOR: BOYS & GIRLS CLUBS NORTH SAN MATEO COUNTY By: Name: Title: ASSIGNEE: BOYS & GIRLS CLUBS OF THE PENINSULA By: Name: Title: CITY OF SOUTH SAN FRANCISCO By: Name: Title: