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HomeMy WebLinkAbout2001-03-13; City Council; 16107; Assignment Of Agreements40# 16, I@ RTG. 311312001 IEPT. ENG CITY OF CARLSBAD -AGENDA BILL TITLE- -- ASSIGNMENT OF AGREEMENTS WITH JOHN POWELL 8, ASSOCIATES, INC. TO POST, BUCKLEY, SCHUH 8. JERNIGAN, INC. AND AGREEMENTS WITH O’ROURKE ENGINEERING TO RBF CONSULTING, INC. CITY MGR. +t RECOMMENDED ACTION: Adopt Resolution No. &o/- 77 approving the assignment of agreements with John Powell & Associates, Inc. to Post, Buckley, Schuh & Jernigan, Inc. and agreements with O’Rourke Engineering to RBF Consulting, Inc. ITEM EXPLANATION: The City of Carlsbad Public Works - Engineering Department has, in the past, contracted with John Powell & Associates, Inc. and O’Rourke Engineering for various professional engineering services, including, but not limited to, plan checking, general engineering, project management, construction inspection and traffic engineering. A number of agreements are currently in place between the City and these two consultants. On January 1, 2001 John Powell & Associates, Inc. (Powell) entered into an agreement with Post, Buckley, Schuh & Jernigan, Inc. (PBS&J) under which PBS&J acquired all of Powell’s assets and obligations. Also on January 1, 2001, O’Rourke Engineering (O’Rourke) entered into an agreement with RBF Consulting, Inc. (RBF) under which RBF acquired all of O’Rourke’s assets and obligations. Existing agreements between the City and Powell and O’Rourke allow each consultant to assign their respective rights and obligations under the agreements to third parties upon written consent of the City. City staff is satisfied that PBS&J and RBF are able to complete all required work under the existing agreements and recommend approval of the attached assignment agreements. In addition, the attached assignment agreements provide for all remaining work to be completed by those members of PBS&J and RBF who were responsible for completing the work for Powell and O’Rourke. Action taken by the Council in this matter is administrative only and will have no material effect on the engineering consulting services provided by Powell/ PBS&J or O’Rourke/ RBF. FISCAL IMPACT: There is no fiscal impact as a result of this action. EXHIBITS: 1. City Council Resolution No. am - 77 approving the assignment of agreements with John Powell & Associates, Inc. to Post, Buckley, Shah & Jernigan, Inc. and with O’Rourke Engineering to RBF Consulting, Inc. 2. Document Titled “Assignment Agreement (John Powell & Associates, Inc./ Post, Buckley, Schuh and Jernigan, Inc.)” 3. Document Titled “Assignment Agreement (O’Rourke Engineering/ RBF Consulting, Inc.)” 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 200 l-77 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING THE ASSIGNMENT OF AGREEMENTS WITH JOHN POWELL 8, ASSOCIATES, INC. TO POST, BUCKLEY, SCHUH & JERNIGAN, INC. AND AGREEMENTS WITH O’ROURKE ENGINEERING TO RBF CONSULTING, INC. WHEREAS, The City of Carlsbad has contracted with John Powell & Associates, Inc. and O’Rourke Engineering for professional engineering services; and WHEREAS, John Powell & Associates, Inc. (Powell) has entered into an agreement with Post, Buckley, Schuh & Jemigan, Inc., a Florida Corporation, (PBS&J) under which PBS&J will acquire all assets and obligations of Powell; and WHEREAS, O’Rourke Engineering (O’Rourke) has entered into an agreement with RBF Consulting, Inc., a California Corporation (RBF) under which RBF will acquire all assets and obligations of O’Rourke; and WHEREAS, existing agreements between the City and Powell and O’Rourke allow each contractor to assign their respective rights and obligations to third parties upon written consent of the City; and WHEREAS, City staff is satisfied that PBS&J and RBF are able to complete all required work under existing agreements; and WHEREAS, agreements have been prepared between the City and PBS&J and the City and RBF in which the City consents to the assignment of Powell and O’Rourke rights and obligations (“Assignment Agreements”). NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as follows: 1. That the above recitations are true and correct. 2. The City hereby consents to the assignment of all John Powell & Associates, Inc. rights and obligations under existing City agreements to PBS&J and consents to the assignment of all O’Rourke Engineering rights and obligations under existing City agreements to RBF in accordance with the terms of the respective Assignment Agreements. 1 2 3 4 3. The City Manager is hereby authorized to sign the Assignment Agreements with PBS&J and RBF. 5 6 7 8 9 PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City Council held on the 13th day of March 9 2001 by the following vote, to wit: AYES: Council Members Lewis, Finnila, and Hall. 10 11 12 13 CLAUDE A. Lmwvr 14 15 ATTEST: 16 18 19 20 21 22 23 24 25 26 27 28 in and Nygaard. (SEAL) ASSIGNMENT AND ASSUMPTION AGREEMENT (John Powell & Associates/ Post, Buckley, Schuh, & Jernigan, Inc.) THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (“Assignment Agreement”) is made and entered into this 2&t day of March 1 2001, by and between the CITY OF CARLSBAD, a municipal corporation and Post, Buckley, Schuh & Jernigan, Inc., a Florida Corporation (“Assignee”), and is made with reference to the following facts: RECITALS A. The City and John Powell & Associates, Inc. (“Assignor”) have entered into the following Agreements and Project Task Descriptions and Fee Allotments (collectively the “Agreements”) on the following dates: 1. Master Agreement for Professional Engineering Services on March 3, 1999. a. Project Task Description & Fee Allotment No. 1 for Public Works Inventory & Facilities Maintenance Program on April 28, 1999. b. Project Task Description & Fee Allotment No. 2 for Downtown Sidewalk Repairs on August 19, 1999. c. Project Task Description & Fee Allotment No. 3 for Faraday/ Melrose Financial District Project on June 1, 1999. d. Project Task Description & Fee Allotment No. 4 for Traffic Impact Fee Projects on January 28,200O. e. Project Task Description & Fee Allotment No. 5 for GIS Data Input on February 11,200O. rev. l/28/00 -1 - f. h. i. i. k. Project Task Description & Fee Allotment No. 6 for PW Inventory and Facilities Maintenance Program on February 11,200O. Project Task Description & Fee Allotment No. 7 for Downtown Sidewalk Repairs on October 22, 2000. Project Task Description & Fee Allotment No. 8 for Traffic Impact Fee on November 14,200O. Project Task Description & Fee Allotment No. 9 for Federal Funding/ DBE Program Requirements on November 21,200O. Project Task Description & Fee Allotment No. 10 for 12-inch Water Main & Easement at PAR/ Reservoir on February 15,200l. Project Task Description & Fee Allotment No. 11 for Updating City Impact Fees on January 3,200l. 2. Master Agreement for Planchecking Services on June 22,1999. 3. Master Agreement for Inspection Services on April 9, 1998. 4. Professional Services Agreement for 36-inch Waterline on White Sands Drive on April 14.2000. 5. Professional Services Agreement for Constructability Review for Vista Carlsbad Interceptor Sewer on March 10, 2000. 6. Carlsbad Water Reclamation Facility on May 11,1999. 7. Construction Management & Inspection Services for Vista/ Carlsbad Interceptor Sewer & South Carlsbad Village Storm Drain. B. The Agreements allow Assignor to assign rights and obligations under the Agreements upon written approval of the City. -2 - rev. 1128100 C. On January I, 2001, Assignor was acquired by Assignee. D. Assignee desires to accept assignment of Assignor’s interest in the Agreements and City consents to the assignment of the interests in the Agreements 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. Assumption. Assignee hereby assumes all of Assignor’s rights and obligations as set forth in the Agreements described in Recital A above. 2 2 City Consent. City hereby agrees and consents to the assignment of all of Assignor’s rights and obligations as set forth in the Agreements described in Recital A above, to Assignee. Said consent would not otherwise have been granted unless Assignee agreed that all obligations required by the Agreements would be completed solely by John Powell & Associates, a Division of Assignee. ZL Completion of Work Assignee agrees that all obligations required by the Agreements shall be completed solely by John Powell & Associates, a Division of Assignee. 42 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 Agreements 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 rev. l/28/00 -3 - 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 Assignment 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, Assignee and their respective successors. Neither this Assignment Agreement nor 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. Governinq Law. This Assignment Agreement shall be governed by, 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, a,nd the parties hereby waive all provisions of law providing for a change of venue in such proceedings to any other county. rev. l/28/00 -4 - 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: Assignee: Citv of Carlsbad - Enqineerino Dept. 1635 Faraday Avenue Carlsbad CA 92008 Attn: Lloyd Hubbs, Public Works Director Post, Buckley, Schuh, & Jemigan, Inc. 175 Calle Magdalena, Suite 201 Encinitas CA 92024 Attn: John M. Powell, Senior Vice-President 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 and Assignee each represent and warrant that they have the legal power, right and actual authority to bind the City and Assignee, respectively, to the terms and conditions hereof. 4.9 Severabilitv. Each provision, term, condition, covenant, and/or restriction, 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 rev. l/28/00 -5 - 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. ASSIGNEE: POST, BUCKLEY, SCHUH CITY OF CARLSBAD, a municipal corporation of the State of California & JERRIGAN, INC., a Florida Corporation (name of Assignee) By: (sign here) (print name/title) (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 certifted by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation.) APPROVED AS TO FORM: ALL, City Attorney BY: . - Deputy City Attorney rev. l/28/00 -6 - State of California SC,, fiiaca County of 1 ss. personally appeared w 9ow. !I , Name(s) of Signer(s) . Y rsonally known to me proved to me on the basis of satisfactory evidence Place Notary Seal Above 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 signature(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. l Signature of Notary PuMic 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: Cl Individual 0 Corporate Officer - Title(s): Cl Partner - Cl Limited 0 General 0 Attorney in Fact 0 Trustee 0 Guardian or Conservator 0 Other: Signer Is Representing: Top of thumb here 0 1999 Nawnal Nolary As~~;afian - 9350 De Soto Ave., PO. Box 2402 - Chatsworth, CA 91313-2402 - www.natiMlalnotary.wg Prod. No. 5907 Rewdar: Call Toll-Free 1-800-876-6827 KEEP FOR YOUR RECORDS BUSINESS TAX RECEIPT Bus. No. 1204001 DATE PAID 032912000 08.160 EMP 50.00 TOTAL 0.00 TAXES PAID IN ACCORDANCE WTH CITY BUSINESS TAX ORDINANCE CITY OF CARLSBAD ~@gg@$&>*+- ’ y*:/c. ‘.:v, . i.‘. z .;i,: ; . . ‘.. . . . . :,>.+‘+c-.- ‘-..‘,rgL<< zc .c 7-t I. : - .i- c .-t,,~,.;:::,.:..i~~.’ .*‘.‘.;;:“?,“ . . . ..-. ‘.I: ,. _. ..a : -, ‘>.<. . ..4..j’~jf~,*:+J iz 2 f: ++,v+YJ; ;- . . . . A. -:-,.:,, . . ..;,‘::‘:,:..*<-,, -.;;j ‘,!-.;m‘ -‘.! ‘;fij’,:;,. X “‘.‘ ?ayjsb?i+ r 5 *>A,<, se ?f.>:’ .? - & ‘.i’**., , ~3 ,, >..JJj> a’...; ,.,. ~\‘-‘??,yy. >I I ~: .: .’ ,. _,, -h! ; i tr;:.+: (;.yy 1 r; ,*7,: L 3 .- ,: f L;j;-*;,T:;-~e,f; :. c-. . . . ,, *--Ye . :*‘a .‘C . ;; ;, ; ‘.h- ir ~.t;.V,~:-~,-Vji~ Is G’e&&’ .T .;A‘:r+..C,. ..4 ..*i.‘; .I-.C.:;r?.*,< be-y.. . &:. t..ev; ,A: y.,f, - .,.I -q.;:,Lp . <yfn-.> .peT :&z.- , _.I .;.; :.‘: ;c.y~Q.;‘:‘.,; 2. _\ ,!‘~.;..’ ‘,.. i.;.\,-. .::. , ~ ._. .- .-~ . . ASSIGNMENT AND ASSUMPTION AGREEMENT (O’Rourke Engineering/RBF Consulting, Inc.) THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (“Assignment Agreement”) is made and entered into this 21st day of March 1 2002, by and between the CITY OF CARLSBAD, a municipal corporation and RBF Consulting, Inc., a California Corporation (“Assignee”), and is made with reference to the following facts: RECITALS A. The City and O’Rourke Engineering (“Assignor”) have entered into the following Agreements and Project Task Descriptions and Fee Allotments (collectively the “Agreements”) on the following dates: 1. Master Agreement for Traffic Engineering Services on October 2,200O. a. Project Task Description & Fee Allotment No. I for Review of San Elijo Ranch & University Commons on October 22,200O. b. Project Task Description & Fee Allotment No. 2 for College Blvd. Opening Project on October 22,200O. c. Project Task Description & Fee Allotment No. 3 for Traffic Services - Calavera Hills on October 252000. d. Project Task Description & Fee Allotment No. 4 for Traffic Impact Fee for El Camino Real/ Camino Vida Robles on November 15,200O. e. Project Task Description & Fee Allotment No. 5 for College Blvd. Opening on November 1,200O. rev. l/28/00 -1 - f. Project Task Description & Fee Allotment No. 6 for La Costa/ El Camino Real on January I, 2000. 2. Professional Services Agreement for Bressi Ranch Traffic Engineering Reports on November 9,1999. 3. Professional Services Agreement for Byron White Property Traffic Engineering Reports on November 9.1999. 4. Professional Services Agreement for Carlsbad Oaks North Traffic Engineering Reports on November 9,1999. 5. Professional Services Agreement for Villages of La Costa Traffic Engineering Reports on November 9,1999. 6. Professional Services Agreement for Traffic Impact Fee Additional Services on June 29,200O. 8. The Agreements allow Assignor to assign rights and obligations under the Agreements upon written approval of the City. C. On January I,2001 Assignor was acquired by Assignee. D. Assignee desires to accept assignment of Assignor’s interest in the Agreements and City consents to the assignment of the interest in the Agreements 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. Assumption. Assignee hereby assumes all of Assignor’s rights and obligations as set forth in the Agreements described in Recital A above. -2 - rev. l/28/00 2 -I Citv Consent. City hereby agrees and consents to the assignment of all of Assignor’s rights and obligations as set forth in the Agreements described in Recital A above, to Assignee. Said consent would not otherwise have been granted unless Assignee agreed that all obligations required by the Agreements would be completed solely by O’Rourke Engineering, a Division of Assignee. 3- Comoletion of Work Assignee agrees that all obligations required by the Agreements shall be completed solely by O’Rourke Engineering, a Division of Assignee. 4 2 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 Agreements 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 negligent 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 Assignment Agreement. -3 - rev. l/28/00 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, Assignee and their respective successors. Neither this Assignment Agreement nor 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, 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: Citv of Carlsbad - Engineering Dept. 1635 Faraday Avenue Cartsbad CA 92008 Attn: Lloyd Hubbs, Public Works Director -4- rev. l/28/00 Assignee: RBF Consulting, Inc. 5050 Avenida Encinas, #260 Encinitas CA 92024 Attn: Gary Warkentin, Vice President 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 Author@. The parties executing this Assignment Agreement on behalf of City and Assignee each represent and warrant that they have the legal power, right and actual authority to bind the City and Assignee, respectively, to the terms and conditions hereof. 4.9 Severabilitv. Each provision, term, condition, covenant, and/or restriction, 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. rev. l/28/00 -5 - 4.10 Effective Date. This Assignment Agreement shall be effective upon the date and year first above written. ASSIGNEE: RBF CONSULTING, INC., a CITY OF CARLSBAD, a municipal California Corporation corporation of the State of California (name of Assignee) (sign here) S.Z&ert Llle&wtA .Pres;dm+ ATTEST: (print name/title) (print n&e/title) (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: rev. 1128100 -6 -