HomeMy WebLinkAboutContracts & Agreements_176-2022ASSIGNMENT AND ASSUMPTION AGREEMENT OF NON-PROFESSIONAL SERVICES
AGREEMENT FOR EQUIPMENT AND SUPPLIES
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Assignment") is made
this 6th day of September 2022 ("Effective Date") among City of Redlands, a municipal
corporation ("City"), Otto Environmental Systems North America, Inc., a Delaware corporation
("Assignor") and Duramax Holdings LLC, an Ohio Limited Liability Company doing business as
Otto Environmental Systems ("Assignee").
WITNESETH:
WHEREAS, the City and Assignor entered into a non-professional services agreement for
equipment and supplies ("Agreement") dated September 7, 2021; and
WHEREAS, Assignor and Assignee entered into an agreement dated November 19, 2021
for Assignee to acquire all or substantially all of the assets of Assignor; and
WHEREAS, Section 8.2 of the Agreement describes the process for assignment of the
rights, duties, and obligations under the Agreement, and specifies that a transfer requires the City's
prior written consent of the City; and
WHEREAS, the Assignee requested City to consent to the Agreement transfer; and
WHEREAS, Assignee has demonstrated to the City's satisfaction that Assignee has the
operational and financial ability to perform the terms of this Agreement; and
WHEREAS, subject to City approval as provided in the Agreement, Assignor desires to
convey and assign to Assignee, and Assignee desires and agrees to accept and assume all of the
rights, duties, obligations, title and interest of Assignor with respect to the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth
in this Agreement and for other good and valuable consideration, the receipt and sufficiency of
which are hereby aelmowledged, the Parties, intending to be bound hereby, agree as follows:
1. ASSIGNMENT. Assignor does hereby irrevocably convey, transfer and assign to
Assignee, all of the rights, title, interest, duties and obligations of Assignor with respect to the
Agreement (the "Assigned Interest").
2. ASSUMPTION. Subject to the terms and conditions of this Assignment, Assignee
hereby irrevocably accepts and assumes the Assigned Interest and from the Effective Date agrees
to perform and be bound by all the terms, conditions and covenants of, and assumes the duties and
obligations of Assignor with respect to, the Assigned Interest.
3. CITY APPROVAL OF ASSIGNMENT. Subject to the terms and conditions of
this Assignment, the City hereby approves and consents to the assignment and assumption of the
Agreement.
L:\ca\Agreements\Dummax and Otto Environmental Assignment Agmement.doex.jn
4. REMEDIES OF ASSIGNOR. Assignor shall have the right to enforce the
provisions of this Assignment and Assignee's obligations by any appropriate legal or equitable
actions and remedies in the event of any delay, failure to perform or breach by Assignee under the
provisions of this Assignment assumed by Assignee.
5. REMEDIES OF CITY. City shall have the right under the Agreement to enforce
the provisions of this Assignment and the assumed obligations by any appropriate legal or equitable
actions and remedies in the event of any delay, failure to perform or breach by Assignee under the
provisions of this Assignment or the assumed obligations assumed by Assignee.
6. FURTHER ASSURANCES. Assignor and Assignee shall execute and deliver all
such other and further documents and perform all such further acts that may be necessary to
effectuate the terms and provisions of this Assignment.
7. SUCCESSORS AND ASSIGNS. This Assignment shall be binding on all
successors and permitted assigns of the Parties and inure to the benefit of the respective successors
and permitted assigns of the Parties.
8. NOTICES. Notices under this Assignment shall be sent in the manner as follows:
To Assignor: Duramax Holdings LLC dba Otto Environmental Systems
Attn: Robert Cheney
Chief Commercial Officer
Duramax Holdings dba: Otto Environmental
Systems
12700 General Drive, Charlotte, NC 28273
Robert.Cheney@otto-usa.com
Phone: 800-795-6886
Fax: 704-588-5250
To Assignee: Otto Environmental Systems North America, Inc.
Attn: Michael Costello„ President and CEO
12700 General Drive
Charlotte, North Carolina 28273
Michael.Costello@otto-usa.com
To City: City Clerk
City of Redlands
35 Cajon Street
P.O. ox 3005 (mailing)
Redlands, CA 92373
jdonaldson@cityofredlands.org
Phone: (909) 798-7531
Fax: (909) 798-7535
9. HEADINGS. Section headings in this Assignment are for convenience only and
are not intended to be used in interpreting or constraining the terms, covenants or conditions of
this Assignment.
10. GOVERNING LAW. This Agreement shall be deemed made and prepared and
shall be governed, construed and interpreted in accordance with the laws of the State of California,
without reference to conflicts of laws rules.
11. NO AMENDMENT TO ASSIGNED AGREEMENT. Nothing contained herein
shall change, alter or otherwise amend the terms of the Agreement, which shall remain in full force
and effect, subject to the assignment, assumption and amendment of the Agreement as set forth
herein.
12. SEVERABILITY. If any term or provision of this Agreement shall be held invalid
or unenforceable, the remainder of this Agreement shall not be affected.
13. COUNTERPARTS. The Parties may execute this Agreement in one or more
counterparts, which shall, in the aggregate, be signed by all the Parties; each counterpart shall be
deemed an original instrument as against any Party who has signed it. Signatures delivered by
facsimile or portable document format (.pdf) shall be deemed to be original signatures.
[Signature Page Follows]
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by a duly authorized representative of each of the Parties as of the date first above written.
DURAMAX HOLDINGS LLC
a Limited Liability Company
"ASSIGNOR"
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Title: Chief Commercial Officer
OTTO ENVIRONMENTAL SYSTEMS NORTH
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a Delaware corporation,
"ASSIGNEE"
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Name: Robert Cheney
Title: Chief Commercial Officer
THE UNDERSIGNED HEREBY ACKNOWLEDGES RECEIPT OF THE FOREGOING
ASSIGNMENT AND ASSUMPTION AGREEMENT AND CONSENTS TO THE
ASSIGNMENT CONTEMPLATED THEREUNDER:
CITY OF DRE LANDS
By:
Paul T. Barich
Mayor
ATTEST:
e e Donaldson, City Clerk