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HomeMy WebLinkAboutDames Rocket 1031 LLC; 2019-10-08;ASSIGNMENT AND ASSUMPTION AGREEMENT FOR GRADING AND EROSION CONTROL AGREEMENT BETWEEN THE CITY OF CARLSBAD AND DAME'S ROCKET 1031, LLC THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ("Assignment Agreement") is made and entered into this 8th day of October 2019, by and between the CITY OF CARLSBAD, a political subdivision of the State of California ("City"), Dame's Rocket 1031, LLC, ("Assignor") and SDH3 Whiptail, LLC, ("Assignee"}, and is made with reference to the following facts: RECITALS A. On September 26, 2017, the City and Assignor entered into that certain Grading and Erosion Control Agreement no. SAGT-17-294 concerning SOP 16-03, Carlsbad Oaks Lot 7 (the "Agreement"), attached hereto as Exhibit A. B. Paragraph 11 of the Agreement allows 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 Assi_gnee. 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 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 harmless the City of Carlsbad and its officers, officials, employees and volunteers 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 Agreer1ent, notwithstanding that City may have benefitted from this Assignment Agreement. This hold harmle:.i; 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 m0nies 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 shalt 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: Assignor: Assignee: City Engineer City of Carlsbad 16~ Faraday Avenue Carlsbad, CA 92008 Dame's Rocket 1031, LLC 60 E. Rio Salado Pkwy, Ste 1103 Tempe, AZ 85281 SDH3 Whiptail, LLC c/o San Diego Hat Company 2875 Whiptail Loop East Carlsbad, CA 92010 4.7 Authority. The parties executing this Assignment Agreement on behalf of City, Assignor and Assignee each represent and warrant that they h1;3ve the legal power, right and actual authority to bind the City, Assignor and Assignee, respectively, to the terms and conditions hereof. 4.8 Severability. 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. Ill Ill Ill Ill Ill 2 4.1 O Effective Date. This Assignment Agreement shall be effective upon the date and year first above written. ASSIGNOR: RLSBAD, a municipal f he State of California sign here) ~~r CS &~ L/:r: (print name/title) 1 **By: (sign here) (print name/title) ASSIGNEE: SDH3 WHIPTAIL, LLC *By: (sign here) (print name/title) **By: (sign here) (print name/title) BARBARA ENGLESON City Clerk If required by City, proper notarial acknowledgment of execution by contractor must be attached . .!f..E Corporation, Agreement must be signed by one corporate officer from each of the following two groups. *Group A. Chairman, President, or Vice-President **Group B. Secretary, Assistant Secretary, CFO or Assistant Treasurer 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. 3 Effective Date. This Assignment Agreement shall be effectiv upon the date nd year first ign here) CS &tA: J/if: (print name/title) .,.By: (sign here) (print name/title) ASSIGN SDH3 W IPTAIL, LLC (l ~ *By: (sign here) { c 0 < t \)Le i b c1 'Sh (print name/title) -sy: (sign here) (print name/title) CllY OF ARLSBAD, municipal corporation f the State of alifomia By: ---+-----+---- ATTEST: BA~BARA NGLESON City Clerk If required by City, proper notarial acknowledgment of execution by cont ctor must be ttached. If a Co atio , Agreement must be signed by one corporate officer from each f the following groups. *Group A. Chainnan President, or Vice-Pres ent ""Group B. Secretary, Assistant Secreta , CFO or Assistant reasurer Otherwis , the corporation must attach a resolution certified by the secreta or assistant s cretary under corporate eal empowering the officer(s) signing to bind the corporation. 3 APPROVED AS TO FORM: CELIA A. BREWER, City Attorney /1 p By: __ ~~.........,u..,.ty-1r,~-----t,,...~---/--- City Attorney Approved Version #04.01.02 4 STATE OF MISSOURI COUNTY OF ST. LOUIS On OCk I lo ,-'2-D--l-4 ___ J=t-before me, A,, co Le o Se..-ebei=r::___ , A N~lSublic in and for said State personally appeared ;) a iYl e. 5 G <3e,ck::_ who 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 signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENAL TY OF PERJURY under the laws of the State of Missouri that the foregoing paragraph is true and correct. WITNESS my hand and official seal. I NICOLE Notary Pubt·D BERNDT S IC, N tare of M· Otary Sea/ C St. Louis Cssour; ' M C omm1ss· ounry • -Y ornn,· . ion N 159 iss,on Expires 88555 03-29-2023 I -, I CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California } County of __ "S_A.~N~-~~\C_½~O ____ _ On ~ <? 0,5:t)~-'<..,../ LO e before me. _Lt-'--t'.'d--"'--""'c,__,"'------"'L"'--"e_,,e"'--=L£=,....,(l.,,'"'-'\,._iHM)ro;___,.""---'---"'=-~~-=+-----'(?ll-'l"'--}bl'-' -'-\ _,,_(,,,,...,"""--- Date Here Insert Name dnd Title of .tbl: Officer personally appeared __ (_~Oili~~'"~<"-~~~--,--~~LJ..__S,._1.,--_________________ _ __/._ Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person~ whose name ALJ.:>uaT...., to the within instrument and acknowledged to me that~ executed the same in is11--~l"m1rl" authorized capacity(~. and that bytl7isJtiertttreir signature~ on the instrument the person( , or the entity upon behalf of which the person(s) a'cte'd, executed the instrument. ,············~ o, •~ LINDA LEE LEAL : : _.,. ·' Notary Public· California z i _ · · San Diego C01.1nty ~ ~ . Commission If 2239711 - My Comm. Expires Mdy 23, 2022 Place Notary Seal and/or Stamp Above I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. OPTIONAL Completing this information can deter alteratio the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: ks1.c,1nUJ::}::: 4-' Ass~±l!X:\ Document Date: '6 Oc)~1v\/;)f.)J ?_,() \9, Aqr~ Number of Pages: _4__._ __ Signer(s) Other Than Named Above: _]c_~m~Y=K.A~_Cq-+-~B~-c___(X:..~------------- Capacity(ies) Claimed by Signer(s) . Signer's Name: Ccuv:::~ 2:>vs.. "-Pf Corporate Officer -Title(s): C.JE 0 □ Partner -□ Limited □ General □ Individual □ Attorney in Fact □ Trustee □ Guardian of Conservator □ Other: Signer is Representing: -SDB :S W~~fw ©2017 National Notary Association Signer's Name.,----,,.,<---------- □ Corporate Of I er - □ Partner -□ Li □ Individual □ Attorney in Fact □ Trustee □ Guardian of Conservator □ Other: Signer is Repr