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HomeMy WebLinkAboutContract 40138 (2),. • +' . l IL • • TAKEOVER AGREEMENT This Takeover Agreement (the "Agreement") is made and entered into this day of April, 2010 by and between AMERICAN SAFETY CASUALTY INSURANCE COMPANY (the "Surety") and THE CITY OF FORT WORTH, TEXAS (the "Owner"). RECITALS WHEREAS, Dirtco, L.P. d/b/a Styles Contracting ("Former Contractor") and the Owner entered into contracts to furnish all labor and materials and perform all work for: Job Title: HMAC Surface Overlay (2008-08) Project #: C293-541200-202620119283 City Secretary #: 38510 Bonds #: ASB 509330 Job Title: HMAC Surface Overlay (2009-1) CDBG Project#9 C293-541200-208620122383 City Secretary #: 38349 Bonds #: ASB 509320 Job Title: HMAC Surface Overlay (2009-2) CDBG Project #: C293-541200-203620122483 City Secretary #: 38351 Bonds #: ASB 509321 (individually a "Project" and collectively the "Projects") further identified as City Secretary Contracts Nos. 38510, 38349 and 38351 (individually the "Original Contract" and collectively the "Original Contracts") in accordance with the terms and provisions of the Original Contracts, including all contract documents forming a part of the Original Contracts; WHEREAS, as required by law and under the terms of the Original Contracts, the Former Contractor as principal and the Surety made, executed and delivered to the Owner Performance Bonds Nos. ASB509330, ASB509320 and ASB509321 (the "Bonds"); WHEREAS, Former Contractor has abandoned the Original Contracts and the Owner has made demand upon the Surety under the Bonds and has called upon the Surety to fulfill its obligations as surety under the terms of the Bonds; WHEREAS, the Surety is willing to undertake the completion of the Original Contracts in accordance with the terms of the Bonds and this Agreement provided that in doing so it will receive the contract bal4nce in accordance with the terms of the Original Contracts. NOW, THEREFORE, in consideration of the agreements and undertakings hereinafter set forth, and for other good and valuable consideration, the receipt and adequacy therefore being hereby acknowledged, the Owner and the Surety agree as follows: j OFFICIAL HMAC 2008-08, 2009-1, 2009-2 Punchlist r--To WORTH, Tx AGREEMENT 1. Performance of the Work and Close-out. The Surety hereby undertakes to cause the performance and or correction of the work as set forth in the Punch lists attached hereto as exhibit "A" "B" & "C" that has been prepared by the Owner pursuant to the Original Contract and all associated change orders, if any., and in so doing agrees to be bound by the Original Contracts. Owner acknowledges that all other work in place not identified in Exhibit "A", "B" or "C" is acceptable and that substantial completion has been achieved with respect to all other aspects of the Projects. The Owner acknowledges that the Surety, by its execution of this Agreement, is acting in its capacity as the surety for the Former Contractor in making arrangements for the performance and completion of the Original Contracts, and not as a completing contractor, and that the Surety is not assuming any obligations or liabilities beyond those set forth in the Bonds. As to the performance and completion of the Original Contracts, except as otherwise provided in this Agreement, the Surety is entitled to all of the rights, obligations, title and interest of the Former Contractor in and to the Original Contracts in all respects as if the Surety were the original party to the Original Contracts. The term "Contractor" as used in the Original Contracts shall be deemed, after the effective date of this Agreement, to refer to the Surety rather than to the Former Contractor. 2. Completion Contractor. The Owner acknowledges that the Surety will subcontract the performance of the work contemplated by this agreement to a completion contractor. 3. Contract Balances. The remaining contracted amount (the "Contract Balance") for each Project is: Job Title: HMAC Surface Overlay (2008-OS) Project #: C293-541200-202620119283 City Secretary #: 38510 Bonds #: ASB 509330 Remaining Contracted Amount - $26,379.84 Job Title: HMAC Surface Overlay (20094) CDBG Project #: C293-541200-208620122383 City Secretary #: 38349 Bonds ASB 509320 Remaining Contracted Amount - $1,011.91 Job Title: HMAC Surface Overlay (20094) CDBG HMAC 2008-085 20094, 2009-2 Punchlist Takeover Agreement Principal: Dirtco d/b/a Styles Page 2 of 8 Project M. C293-541200-203620122483 City Secretary #: 38351 Bonds #: ASB 509321 Remaining Contracted Amount - , �a�� �i�`7•08 The Owner acknowledges that the Contract Balances set out above are available to complete the Projects and is not subject to back charges, set -offs, liquidated damages or other withholdings as of the date of this Agreement. The Owner agrees that the Contract Balances are dedicated to and will be applied to the completion of the Original Contracts. The Owner shall pay to the Surety the Contract Balances, plus or minus any additional amounts of money on account of any Change Orders requested and authorized by the Owner, as the work progresses. The payment of the Contract Balances, and approved Change Orders, shall be made to the Surety in accordance with the terms of the Original Contracts. The Surety agrees to spend its own funds as may be necessary from time to time to pay for the performance of the work contemplated by this agreement in the event that a Contract Balances are insufficient, with any such payments being credited against the penal sum of the Performance Bonds. In no event shall the Owner withhold any of the Contract Balances from the Surety by asserting a future offset or setoff or because of or on account of any claims, liens, suits or demands by any persons or entities furnishing or alleging to have furnished labor and/or materials to the project Owner will not offset against or otherwise withhold payment of any amount of the Contract Balances as a result of, or charge to Contractor/Surety, any alleged liquidated and/or actual delay damages caused by any action or inaction of the Former Contractor, completion contractor or Surety prior to the Completion Deadline set forth below. Owner further agrees that, except as provided by order of a court of competent jurisdiction or to the extent otherwise provided by law, it will not acknowledge or honor any claim or charges against the Contract Balances by any alleged assignee, successor, creditor, trustee, receiver, or transferee of Contractor or by any other party or governmental entity making claim to the Contract Balance or any portion thereof without the written consent of Surety. Payments from the Owner shall be made payable to American Safety Casualty Insurance Company and transmitted to the Surety at the following address, unless and until the Surety notifies the Owner in writing of a change of address: American Safety Casualty Insurance Company 100 Galleria Plcwy., Suite 700 Atlanta, GA 30339 Attn: Robert D' Olympio 4. Insurance. The Surety may satisfy the required insurance obligations under the Original Contracts by providing evidence of the required insurance coverage carried by the HMAC 2008-08, 2009-1, 2009-2 Punchlist Takeover Agreement Principal: Dirtco d/b/a Styles Page 3 of 8 Completion Contractor, with the Owner and the Surety being named as insureds under the policy or policies. 9. The Surety's Bonds Liability. The Bonds shall remain in full force and effect in accordance with their terms and provisions. Nothing in this agreement shall be deemed to enlarge or reduce the Surety's obligation under the Bonds or the Statutes under which they are written. The total liability of the Surety under this Agreement and Bonds for the performance of the work, after the expenditure of the Contracts Balance, is limited to and shall not exceed the penal sum of the Bonds (as may be modified by duly authorized and approved change orders). Surety agrees that it will be responsible for the payment of any perfected, legitimate payment bond claims made by persons and or entities that provide labor and or materials under the Original Contracts, for improvement of the real property upon which the project is located, provided that its liability for such payment will extend only to the penal sum of the payment bond. Any and all payments made by the Surety for performance and/or payment shall be credited dollar for dollar against the penal sum of the respective bond. Nothing in this Agreement constitutes a waiver of such penal sum or an increase in the liability of the Surety under the bonds. In the event Surety should expend funds equal to the Penal Sum (as may be amended by a duly authorized change order) in discharge of its performance bond obligation, Owner agrees that Surety shall have no further liability or obligation, if any, under the Performance Bonds,. this Agreement, the Original Contracts or otherwise to complete the work, if any. Nothing contained herein shall limit Surety's obligations under the Maintenance Bonds for the project. 10. Reservation of Surety's Rights. Surety expressly reserves all prior rights, equitable liens and rights to subrogation that would be the laborers', materialHUM 's, or the Former Contractor's under the Original Contracts (except as specifically modified by this Agreement) as well as its own rights dating back to the execution of the Bonds, including but not -limited to those rights and remedies that may accrue during the completion of the Original Contracts. No waiver of such rights is agreed to or intended regardless of any provisions of this Agreement. 11. Time for Completion, Cooperation and Best Efforts. Owner and Surety agree that the Completion Deadline and the time to complete the work for each Project will be ten (10) working days from a written notice to proceed for the respective Project to be issued by Owner to the completion contractor. Any request for extension of time will be governed by the terms of the Original Contract. The Owner and the Surety agree to use their best efforts to cooperate under the terms of this Agreement for the prompt completion of the performance of the work. Owner further agrees that, in the event it believes that an event of default has occurred under the HMAC 2008-085 2009-1, 2009-2 Punchlist Takeover Agreement Principal: Dirtco d/b/a Styles Page 4 of 8 terms of the Original Contract as a result of completion contractor's actions or inactions on the Project, Owner will provide written notice of such suspected default to Surety five (5) days in advance of issuing any cure or default notice accordance with the terms of the Original Contract so that Surety can investigate. Owner will also furnish a copy of said written notice to the project manager and to completion contractor. 12. No Third Party Rights. This Agreement is solely for the benefit of the Owner and the Surety. The Owner and the Surety do not intend by any provision of this Agreement to create any third -party beneficiaries of this Agreement, nor to confer any benefit upon or enforceable rights under this Agreement or otherwise upon anyone other than the Owner and the Surety. Specifically, the Owner and the Surety acknowledge that nothing in this Agreement shall extend or increase the rights of any third -party claimants or the liabilities or obligations of the Surety under the Bonds. 13. Whole Agreement. This Agreement along with the Original Contract constitutes the whole of the understanding, discussions, and agreements by and between the Owner and the Surety. The terms and provisions of this Agreement are contractual and not mere recitals. The Owner and the Surety acknowledge that there have been no oral, written or other agreements of any kind as a condition precedent to or to induce the execution and delivery of this Agreement. Any written or oral discussions conducted prior to the effective date of this Agreement shall not in any way vary or alter the terms of this Agreement. This Agreement shall not be changed, amended or altered in any way except in writing and executed by both the Owner and the Surety. 15. Execution. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument. Facsimile copies will have the same force and effect as originals. 16. Recitals. The Recitals contained in this Agreement are incorporated herein by reference and made a part hereof. 17. Governing Law and Jurisdiction. HMAC 2008-081 2009-1, 2009-2 Punchlist Takeover Agreement Principal: Dirtco d/b/a Styles Page 5 of 8 This Agreement shall be governed by and controlled by the laws of the State of Texas and the parties to this Agreement, in the event of any dispute involving this Agreement, agree that venue shall lie exclusively in Tarrant County, Texas. 18. Notices. Any notices, which are required to be given by the terms of this Agreement or the Bonds, shall be made as follows: As to the Owner: Department of Transportation &Public Worlcs Attn: William A. Verkest, P.E., Director 1000 Throckmorton Street Fort Worth, Texas 76102 City Attorneys Office Attno Amy J. Ramsey, Assistant City Attorney 1 )00 Throckmorton Street Fort Worth, Texas 76102 As to the Surety: American Safety Casualty Insurance Company Attn: Robert D'Olympio 100 Galleria Pkwy., Suite 700 Atlanta, GA 30339 With a copy to: James D. Cupples Cupples &Associates, PLLC 1331 Gemini, Suite, 201 Houston, TX 7705 8-2729 19. Effective Date. This Agreement is effective as of the date first written above. 20. Successors and Assigns. This Agreement shall be binding upon the parties and their respective successors and assigns. 21. Invalidity, Illegality or Unenforceability. In the event that one or more provisions of this Agreement shall be declared to be invalid, illegal or unenforceable in any respect, unless such invalidity, illegality or unenforceability shall be tantamount to a failure of consideration, the validity, legality and enforceability of the remaining provisions contained in this Agreement shall not in any way be affected or impaired thereby. HMAC 2008-08, 2009-1, 2009-2 Punchlist Takeover Agreement Principal: Dirtco d/b/a Styles Page 6 of 8 22. Construction of Agreement. The Parties agree that each Party and each Party's counsel have reviewed and approved this Agreement, and that each Party has fully understood and voluntarily accepted each and every provision contained in this Agreement. As such, it is understood and agreed by the Owner and the Surety that this Agreement shall be construed without regard to any presumption or other rule requiring construction against the party causing this Agreement to be drafted. (Remainder of Page Intentionally Left Blank) F-IMAC 2008-08, 2009-1, 2009-2 Punchlist Takeover Agreement Principal: Dirtco d/b/a Styles Page 7 of 8 04-15=10 10;56am From-DANIELSON INDEM ITY CO 5825897560 T-507 P.01/01 F"M IN WITNESS WIURZEOIE, the parties have executed thus Agreement on the date indicated above, and each of the undersigned personally represent and warrant that they lave the fall right, power and aoltoriry to execute this Agreement on behalf of the respective parties. CITY OF FORT WORTdI Fernando Costa Assistant City Manager Recommended: AMIMRICAN SAFlEr'li'Y CASUAx.'CY INSURANCE CO. RoH�D'Olympio Surety & Property Clatim MamagaIr William A. Verkest, F. , irector Transportation & Public Works Department Approved as to Form and Legality: Amy J Attorney ATTEST: a►o Marty endrib Offtwo City Secretary 0 oAv. gcij ;. Mop a Z UI �a� 0o,40oa000°000Uis a No M&C Required — Authorized by contract executed per M&C C-233819 C=23361 & C-233l52 HMAC 2008-08, 20u9-1, ZU09.2 Punchlist Takeover Agrecmcnt Principal_ Dirtco d/b/a Srytes Pave 8 of 8 OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX 1 • • TRANSPORTATION AND PUBLIC WQRKS FINAL INSPECTION PUNCH LIST L'ROJEC"1' NAME:: Hlv1AC Surface Gverlav 2WS-Ot D.O.E. Ns: 62321 DATE January 25, 2010 I. Crack seal by 5928, 6009, & 6fl57 Sidewinder Trail 2. Crack seal by 2401 & 2406 Sweetwood Drive 3. Crack seal by 2409 & 2421 Chadwick Drive 1. Crack seal by 2325 Tallowood Court Contractor 1of1 RLV 03/21/01 Exhibit B (20094) TRANSPORTATION AND PUBLIC WORKS FINAL INSPECTION PUNCH LIST PROJECT 1AME: I�1r�C Surface Overly (2009-1) CDBG D.O.E. \�o: 6207 DATE: January 25, 2010 i. Greenlee Ave�Unraveling thou out street �,.._ __ ____.____�..__._ 2. Cass Ave�Asphalt Lover then Concrete Tie -In at Rainey Ave 3. Virgil Dr- Asphalt cracks 4. Virgil Dr -Asphalt failure north side of valley Rutter at Lois Intersection 5. Garrison -Remove and re lace chipped concrete panel.at Tie on Ave N 6. Fastline - Major asphalt cracks tbrouZh out street J 7. Cromwell - Hairline crack in sidewalk by water meter S. Crawford St- Asphalt cracks 9. Crawford St- Asphalt cracks 10. Bideker Dr- Remove cover from handicap 11. Calhoun Rd Asphalt cracks 12. Refuaio Rd -Asphalt is unraveling 13. Diamond Rd -Asphalt cracks_ 14. Lcnvng St- Asphalt unravehpy and cracking __ _ 15. E 13th St- Asphalt cracks 16. I M Terrell Cir N- Asphalts cracks 17. I. M. Terrell Cir SWalley gutter cracked, holding water 18. I. M. Terrell Cir S -:1s 1p salt cracks Contractor In$pector Exhibit C (2009�2) m TRANSPORTATION AND PUBLIC WORKS PUNCH LIST YRO)ECT NAME: IiI4111C OVERLAY (2009-2; D.O.E. N2: 6208 DATE: January 08, 2010 1. MANHOLE COLLAR AT FARON AND LOVELL NEEDS TO BE REDONE AND CENTERED. 2. MARTIN LYDON NFEDS TO BE CRACK SEALED. GREEN PAINT ON LOCATIONS. 3.-STANLEY NEEDS TO BE CRACK SEALED. GREEN PAINT ON LOCATIONS. t. MALTA AVE. NEEDS TO BE CRACK SEALED . GREEN PAINT ON LOCATIONS. 5. MOBERLY NEEDS TO BE CRACK SEALED. GREEN PAINT ON LOCATIONS. Contractor c -`.�. Inspector