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HomeMy WebLinkAboutEDAW; 2006-06-30;ASSIGNMENT AND ASSUMPTION AGREEMENT (Cotton Bridges Associates/EDAW) THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ("Assignment Agreement") is made and entered into this v^U^day of JLi (\\ o ^ 200O., by and between the CITY OF CARLSBAD, a municipal corporation and EDAW, (Assignee"), and is made with reference to the following facts: RECITALS A. On (October 7, 2004), the City and Cotton Bridges Associates ("Assignor") entered into a Professional Services Agreement for the preparation of the updates to the Housing Element and Consolidated Plan, (the "Agreement"). B. The Agreement allows the Assignor to assign rights and obligations under the Agreement upon written approval of the City. C. Assignor desires to assign its interest in the Agreement to Assignee. Further, Assignee desires to accept assignment of Assignor's interest in the Agreement and City consents to the assignment of the interest in the Agreement from Assignor to Assignee. NOW THEREFORE, incorporating the above recitals and in consideration of the covenants and obligations set forth herein, the parties hereto agree as follows: 1. Assignment. Assignor hereby assigns to Assignee all of Assignor's rights and obligations as set forth in the Agreement. 2. Assumption. Assignee hereby assumes all of Assignor's rights and obligations as set forth in the Agreement. 3. City Consent. City hereby agrees and consents to the assignment of all rev. 1/28/00 -1- of Assignor's rights and obligations as set forth in the Agreement to Assignee. 4. General Terms and Conditions. The following general terms and conditions shall apply to this Assignment Agreement. 4.1 Hold Harmless. In addition to the hold harmless provisions contained within the Agreement and except as to.the sole negligence, or willful misconduct of City, Assignee shall defend, indemnify and hold the City, its officers and employees, harmless from any and all loss, damage, claim for damage, liability, expense or cost, including attorney's fees, which arises out of or is in any way connected with this Assignment Agreement, notwithstanding that City may have benefited from this Assignment Agreement. This hold harmless provision shall apply to any acts or omissions, willful misconduct or negligent conduct, whether active or passive, on the part of Assignee. The parties expressly agree that this section shall survive the expiration or early termination of this Agreement. 4.2. Counterparts. This Assignment Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which, together, shall constitute one and the same instrument. 4.3. Successors and Assigns. It is mutually understood and agreed that this Assignment Agreement shall be binding upon City, Assignor and Assignee and their respective successors. Neither this Assignment Agreement or any part hereof nor any monies due or to become due hereunder may be assigned by Assignee without the prior consent of City. 4.4. Governing Law. This Assignment Agreement shall be governed by, rev. 1/28/00 -2- interpreted under, and construed and enforced in accordance with, the laws of the State of California. 4.5. Venue. Any action at law or in equity brought by either of the parties hereto for the purpose of enforcing a right or rights provided for by this Assignment Agreement shall be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties hereby waive all provisions of law providing for a change of venue in such proceedings to any other county. 4.6. Notices. Service of any notices, bills, invoices or other documents required or permitted under this Assignment Agreement shall be sufficient if sent by one party to the other by United States mail, postage prepaid and addressed as follows: City: City of Carlsbad - Planning Department 1635 Faraday Avenue Carlsbad, CA 92008 Att: Michele Masterson, Management Analyst Assignee: EDAW, a Delaware Corporation 800 E. Colorado Blvd., Ste. 270 Pasadena, CA 91102 4.7. Nondiscrimination. During the term of this Assignment Agreement, the parties shall comply with the state and federal laws regarding non-discrimination. 4.8 Authority. The parties executing this Assignment Agreement on behalf of City, Assignor and Assignee each represent and warrant that they have the legal power, right and actual authority to bind the City, Assignor and Assignee, respectively, to the terms and conditions hereof. 4.9 Severabilitv. Each provision, term, condition, covenant, and/or restriction, rev. 1/28/00 -3- in whole and in part, in this Assignment Agreement shall be considered severable. In the event any provision, term, condition, covenant, and /or restriction, in whole and in part, in this Assignment Agreement is declared invalid, unconstitutional, or void for any reason, such provision or part thereof shall be severed from this Assignment Agreement and shall not affect any other provision, term, condition, covenant, and/or restriction, of this Assignment Agreement and the remainder of this Assignment Agreement shall continue in full force and effect. 4.10 Effective Date. This Assignment Agreement shall be effective upon the date and year first above written. rev. 1/28/00 -4- ASSIGNOR: , a Delaware Corporation CITY OF CARLSBAD, a municipal corporation of the State of California (name of Assignor) w. _ ' <\ - \ iin- u L 4f— t ^ ^ » ^^ (name of Assignee) (print name/title) '/,.-*^ .0^'<£>* (Proper notarial acknowledgment of execution by Contractor must be attached. Chairman, president or vice-president and secretary, assistant secretary, CFO or assistant treasurer must sign for corporations. Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation.) APPROVED AS TO FORM: RONALD R. BALL, City Attorney BV: Ml City Attorney rev. 1/28/00 -5- CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California xTCounty of (J^ ss. On ^ personally appeared before me, Name and Title gf Officer (e^., "Jane Doe,y Public') Name(s) of Signer(s) •S^BTfeonally known to me D proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) te/are. subscribed to the within instrument and acknowledged to me that taetehe/they executed the same in jiic/hoc/thejr authorized capacity(ies), and that ~b"y" JiisAcr/their signature(s) on the instrument the person(sJ7or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: _ Document Date:Number of Pages: Signer(s) Other Than Named Above:. Capacity(ies) Claimed by Signer Signer's Name: D Individual D Corporate Officer — Title(s): D Partner — D Limited D General D Attorney-in-Fact D Trustee D Guardian or Conservator D Other: RIGHT THUMBPRINT OF SIGNER Top of thumb here Signer Is Representing:. © 1999 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, OA 91313-2402 • www.nationalnotary.org Reorder: Call Toll-Free 1-800-876-6827 ALL-PURPOSE ACKNOWLEDGMENT State of California County of 5 On 0 ss. (DATE) personally appeared _ R. J. MOORE Comm. 11471277 NOWWHIIUC-CMIfOKNIA Son Diwo County My Comm. ExpTwFtl.21,2001 before me,1- [•f personally known to me - OR - (I) (NOTARY) A. SIGNER(S) proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. NOTARY'S SIGNATURE OPTIONAL INFORMATION The information below is not required by law. However, it could prevent fraudulent attachment of this acknowl- edgment to an unauthorized document. CAPACITY CLAIMED BY SIGNER (PRINCIPAL) DESCRIPTION OF ATTACHED DOCUMENT [[] INDIVIDUAL CORPORATE OFFICER TITLE OR TYPE OF DOCUMENT TITLE(S) PARTNER(S) ATTORNEY-IN-FACT TRUSTEE(S) GUARDIAN/CONSERVATOR OTHER: NUMBER OF PAGES DATE OF DOCUMENT OTHER SIGNER IS REPRESENTING: NAME OF PERSON(S) OR ENTITY(IES) RIGHT THUMBPRINT OF SIGNER APA5/99 VALLEY-SIERRA, 800-362-3369 ACTION BY UNANIMOUS WRITTEN CONSENT OF DIRECTORS OF EDAW, INC., a Delaware corporation December 2, 2005 The undersigned, being the directors of EDAW, Inc., a Delaware corporation (this "Corporation"), acting pursuant to the provisions of Section 108(c) of the General Corporation Law of the State of Delaware, do, in lieu of a meeting, hereby consent to the adoption of the following recitals and resolutions and to the actions set forth herein as of the above date. DIRECTORS WHEREAS, the Bylaws of this Corporation provide that the number of members of the Board of Directors of this Corporation be determined from time to time by resolution duly adopted by the Board of Directors of this Corporation; and WHEREAS, it is deemed to be in the best interests of this Corporation that the authorized number of directors of this Corporation is four (4); NOW, THEREFORE, BE IT RESOLVED, that the authorized number of directors of this Corporation shall be four (4) until changed by amendment of the Certificate of Incorporation or the Bylaws of this Corporation or by resolution duly adopted by the directors or stockholders of this Corporation ELECTION OF OFFICERS WHEREAS, the Board of Directors of this Corporation has received notice of resignation effective December 2, 2005 from each of its duly elected officers; and WHEREAS, it is deemed to be in the best interest of this Corporation and its sole shareholder to elect new officers of this Corporation; NOW, THEREFORE, BE IT RESOLVED, that each of the following persons is elected to the office indicated opposite his or her name: LA.1:1095290.1 Name Title Joseph E. Brown President, CEO Barbara Faga Sr. Vice President David H. Blau Sr. Vice President, Sr. Regional Director Sean Chiao Regional Director Dana Waymire Chief Financial Officer, Treasurer Robert Pell Chief Operating Officer, Sr. Vice President and Assistant Secretary Jason Prior Sr. Vice President Donald Smith Sr. Vice President, Regional Director William Vitek Sr. Vice President, Regional Director Curtis E. Ailing Vice President Leonard Alvarez Vice President Marius Brits Regional Director Russell Butler Vice President Dennis Carmichael Vice President James Cleland Vice President Sydney Coatsworth Vice President Roger G. Courtenay Vice President William D'Elia... Executive Vice President, Director of Development Tim Delorm Vice President Richard Dorrier Vice President Michael A.D6%n3L..l;....^. .„.;......„ 'Vice President Allen Folks Vice President Mark Fuller Vice President H. Cales Givens Vice President Patrick Gulliver Vice President Mark Gundacker Director of Human Resources Bill Hanway Vice President, Regional Director Graeme Harvison Vice President, Regional Director Alan Harwood Vice President Ellen Heath Vice President Jay Hicks Vice President Todd Hill Vice President Gregory Hurst Vice President James Hyatt Vice President Gary Jakobs Vice President Andrew Jones Vice President Thomas M. Keith Vice President Steve Kellenberg, Vice President William Kuhl Vice President Thomas Larkin Vice President LAI: 1095290.1 Charles Ledward Vice President Jacinta McCann Vice President Paul Moyer Vice President, Regional Director Herbert R. Schaal Vice President Steven Scott Vice President Brodie Stephens Vice President, General Counsel and Secretary Jill Sterrett Vice President Ray Strychalski Vice President Jason Uyeda Vice President James Welch Vice President Bradley Wellington Vice President GENERAL RESOLVED FURTHER, that each of the officers of this Corporation is authorized and empowered on behalf of this Corporation and in its name to execute any applications, certificates, agreements, or any other instruments or documents or amendments or supplements thereto, or to do and to cause to be done any and all other acts and things as such officers may in their discretion deem necessary or appropriate to carry out the purposes of each of the foregoing resolutions, the execution and delivery of such documents and the taking of such actions to be conclusive evidence of the necessity or appropriateness thereof. [Remainder of page intentionally left blank.] LAI: 1095290.1 IN WITNESS WHEREOF, the undersigned have executed this Written Consent of Directors as of the above date, thereby agreeing that the foregoing recitals and resolutions shall be of the same force and effect as if regularly adopted at a meeting of the Board of Directors of this Corporation held upon due notice. This Action by Unanimous Written Consent of the Board of Directors of this Corporation may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute but one and the same Action by Unanimous Written Consent. ERIC CHEN RON OSBORNE WESLEY SHlMODA