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HomeMy WebLinkAboutRES 15-286RESOLUTION NO. 15-286 WHEREAS, on January 25, 2000, City Council of the City of Beaumont, Texas approved Resolution No. 00-031 authorizing the City Manger to execute a Fixed Base Operator's (FBO) lease contract approving the sale of Beaumont Wings, Inc. to Gary Giarraputo; and, WHEREAS, Gary Giarraputo, as owner of Beaumont Wings, Inc., has requested the assignment of the FBO lease contract to BMT Wings, LLC; and, WHEREAS, BMT Wings, LLC will assume and fulfill all obligations, responsibilities, terms and conditions under the FBO lease contract between the City of Beaumont and Beaumont Wings, Inc. dated August 14, 2006, which primary term will expire on March 31, 2017; and, WHEREAS, Beaumont Wings, Inc. will be released from its obligation to the City and the City will be released of its obligations to Beaumont Wings, Inc. upon execution of the Assignment and Assumption Agreement of the current FBO lease contract to BMT Wings, LLC; and, WHEREAS, City Council is of the opinion that the FBO lease contract with Beaumont Wings, Inc. should be assigned to BMT Wings, LLC, as shown on Exhibit "A," attached hereto; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the statements and findings set out in the preamble to this resolution are hereby, in all things, approved and adopted; and; THAT the City Manager be and he is hereby authorized to execute an Assignment and Assumption Agreement with Beaumont Wings, Inc. and BMT Wings, LLC, for the purposes described herein. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 15th day of December, 2015. AW �`�,�1� ASSIGNMENT AND ASSUMPTION AGREEMENT This ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement"), dated December , 2015, is entered into by and between Beaumont Wings, Inc. ("Assignor"), BMT Wings, LLC, ("Assignee"), and the City of Beaumont, a municipal corporation of the State of Texas ("City"). RECITALS: A. Assignor and City are parties to that certain Lease Agreement, dated August 14, 2006 (the "Contract"), pursuant to which Assignor agreed to provide certain Fixed Base Operator management services at the Beaumont Municipal Airport. B. Assignor, Assignee and City have agreed to enter into this Agreement to provide for Assignor's assignment to Assignee of all of Assignor's right, title and interest in and to the Contract, and Assignee's assumption and performance of all Assignor's obligations, duties and responsibilities under the Contract arising after the Effective Date (as herein defined). C. This Agreement will become effective upon approval by City ("Effective Date"). NOW, THEREFORE, in consideration of the foregoing premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: AGREEMENT: 1. Assignment and Assumption. (a) Assignor hereby assigns, grants, conveys, transfers and delivers to Assignee and its successors and assigns, all of Assignor's right, title, benefit, privilege and interest in, to and under the Contract and Assignee hereby accepts such assignment, grant, conveyance, transfer and delivery. (b) Assignor covenants and agrees to indemnify and hold Assignee harmless from any and all claims, causes of action, liabilities, costs and expenses including, without limitation, reasonable attorney's fees, hereafter incurred by Assignee as a result of, or in connection with, the failure by Assignor to perform, or to have performed when due, any of the obligations of the landlord or lessor under the Lease that first accrued on or prior to the Effective Date. (c) Assignee hereby assumes and accepts all of Assignor's right, title, and interest in and to the lease, and agrees to fulfill, perform EXHIBIT "A" and discharge, all obligations, duties and responsibilities of Assignor to be performed under the Lease Contract after the Effective Date in accordance with its terms. Assignee hereby is made a party to the Contract in replacement of, and substitution for, Assignor, and Assignee hereby agrees to be bound by the terms and conditions thereof. (d) Assignor hereby is relieved of and released from any further obligations, duties and responsibilities to be performed under the Contract after the Effective Date. (e) Assignor shall be and remain liable and responsible for and shall make timely payment of all sums owed to vendors, suppliers, City and others directly or indirectly incurred or owed by Assignor in connection with its performance of the Contract prior to the Effective Date. In connection therewith, Assignor agrees to indemnify, hold harmless and defend Assignee and City from and against any and all claims arising from Assignor's operations under the Contract prior to the Effective Date. (f) Assignor hereby sells, assigns, transfers and conveys to Assignee, free and clear of all liens, security interests, encumbrances, claims and restrictions of any nature, all of Assignor's rights to collect rents or other payments due after the Effective Date under the Lease. 2. Consent and Certification. (a) Assignor herby certifies and confirms to Assignee that: (a) true, complete and accurate copies of the Lease have been delivered to Assignee; (b) all rents and other amounts due to Assignor pursuant to the Lease have been paid for all periods through and including the Effective Date; (c) Assignor is not in default under or otherwise in breach of any of the terms and provisions set forth in the Lease; and, (d) no action, suit or proceeding is pending or threatened before or by any judicial body, or any governmental agency or authority against or affecting the Lease. (b) City hereby consents to the assignment, assumption and other matters set forth in Section 1 above, and hereby agrees that (i) Assignee shall be entitled, in the place and stead of Assignor, to exercise any and all rights of Assignor under the Contract in accordance with its terms, (ii) City shall accept performance by Assignee under the Contract, and (iii) City will look solely to Assignee for the fulfillment, performance and discharge of all obligations, duties and responsibilities which Assignor had originally agreed to fulfill, perform and discharge under the Contract from and after the Effective Date. (c) City hereby certifies as follows with respect to the Contract: (i) a true, correct and complete copy of the Contract as currently in effect is attached hereto; (ii) the Contract is in full force and effect, has not been modified or amended, and remains subject to terms and conditions contained herein. 3. Miscellaneous. (a) Authority. Each of Assignor, Assignee and City, and the individuals executing this Agreement on behalf of each such party, represents and warrants to the other parties that (i) such party has the right and power to enter into this Agreement, (ii) such party has taken all necessary action to duly authorize the execution and delivery of this Agreement, and (iii) such party has duly executed and delivered this Agreement. (b) Binding Effect. This Agreement shall be binding upon and inure to the benefit of Assignor, Assignee and City and their respective successors and permitted assigns. (c) Applicable Law. This Agreement shall be governed by and construed and enforced in accordance with the internal laws of the State of Texas without giving effect to the principles of conflicts of law thereof (d) Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Signed counterparts of this Agreement may be delivered by facsimile and by scanned .pdf image. If so delivered by facsimile or scanned .pdf image, at the request of any party hereto, the other parties shall re -execute an original form hereof and deliver it to the requesting party. IN WITNESS WHEREOF, Assignor, Assignee and City have caused this Agreement to be duly executed by their respective officers thereunto duly authorized, all as of the date first above written. ASSIGNOR, BEAUMONT WINGS, INC. A Texas Corporation Name: Gary Giarraputo Title: ASSIGNEE, BMT WINGS, LLC A Texas Limited Liability Company By: Name: Joseph P. Arena Title: ASSIGNEE, BMT WINGS, LLC A Texas Limited Liability Company Name: Joseph A. Arena, Jr. Title: OWNER, CITY OF BEAUMONT Name: Kyle Hayes Title: City Manager