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HomeMy WebLinkAboutContract 33800 CM' SECRETARY&3AF CONTRACT NO. TAKEOVER AGREEMENT CITY OF FORT WORTH TEXAS This Takeover Agreement (the "Agreement") is made and entered into thisday of July 2006, by and between CAPITOL INDEMNITY CORPORATION (the "Surety") and THE CITY OF FORT WORTH, TEXAS (the "Owner"). RECITALS WHEREAS, on May 11, 2004, TMD & Associates, Inc. (`Former Contractor") and the Owner entered into a contract to furnish all labor and material and perform all work for the project known as the HMAC Surface Overlay 2004-15, Project No. GS93- 020930522610, City of Fort Worth, City Secretary Contract No. 30051 (the "Original Contract") in accordance with the terms and provisions of the Original Contract, including all contract documents forming a part of the Original Contract; WHEREAS, as required by law and under the terms of the Original Contract, the Former Contractor and the Surety made, executed and delivered to the Owner Performance and Payment Bonds, Bond No. C 0010006615 (the "Bond") in the penal sum of$908,685.00; WHEREAS, on January 27, 2006, the Owner made a demand on the Surety under the terms of the Performance Bond and has called upon the Surety to fulfill its obligations as surety under the terms of the Performance Bond; WHEREAS, the Surety is willing to undertake the completion of the Original Contract in accordance with the terms of the Performance Bond and this Agreement provided that in doing so it will receive the entire Contract Balance hereinafter defined as set forth below in accordance with the terms of the Original Contract. 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: AGREE.MI ENT 1. Performance of the Work and Close-out. The Surety hereby undertakes to cause the performance of each and every one of the terms, covenants and conditions of the Original Contract, subject to the agreement between the parties that the City will accept applicable warranties from the Surety in place of certain manufacturer warranties that may be unavailable due to the length of time the project has been ongoing, including all Change Orders thereto, and agrees to Takeover Agreement TMD Associates HMAC 2004-15 July 11,2006 Page 1 of 9 l %zo 0 be bound by the Original Contract. The scope of work is set forth in Exhibit "A" and "B" attached hereto and incorporated herein. 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 Contract, 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 Contract, except as otherwise provided in this Agreement, the Surety is entitled to all of the rights, title and interest of the Former Contractor in and to the Original Contract in all respects as if the Surety were the original party to the Original Contract. The City further agrees that the following is an all inclusive list of Close-Out documents due to the City upon completion of the Project: (1) Verification that maintenance bond for work performed by the Former Contractor is effective until July 30, 2007; (2) Two-year maintenance bond or warranty for work done under this Agreement; (3) Signed final estimate and final estimate affidavit. The term "Contractor" as used in the Original Contract 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 under the Original Contract to a completion contractor, Westhill Construction, Inc. (the "Completion Contractor"). 3. Contract Balance. The Owner and the Surety agree that as of the date of this Agreement: (a) The authorized and amended amount of the Original Contract is the sum of $908,685.00; (b) The Former Contractor having been paid the sum of $751,335.16; (c) The "Contract Balance" shall be hereinafter defined as the sum of $157,349.84, of which $39,543.96 is earned retainage to date. The Contract Balance shall be increased or decreased, as appropriate, as a result of any Change Orders for extra work (work that is different from, in excess of, or beyond the scope of the work required by the Original Contract) requested or required by the Owner after the date of the execution of this Agreement or as a result of any Change Orders for underruns or overruns in quantities. It is anticipated that the final quantities will underrun significantly from plan quantities. All remaining pay quantities shall be tracked by the Completion Contractor and the Owner. As of the date of the execution of this Agreement, the Owner represents and warrants that, according to the records available to it, the Contract Balance, as defined in this Agreement is accurate. The Surety reserves the right to verify the accuracy of the Contract Balance. The Surety's sole remedy against the Owner for breach of this representation and warranty is reformation of the Contract Balance to the proper amount. Takeover Agreement TMD Associates HMAC 2004-15 July 11,2006 Page 2 of 9 vN a uG'.a 4. Payment of the Contract Balance and Costs to Complete. The Owner agrees that the Contract Balance is dedicated to and will be applied to the completion of the Original Contract pursuant to this Agreement. The Owner shall pay to the Surety the Contract Balance, 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 Balance, and approved Change Orders, shall be made to the Surety in accordance with the terms of the Original Contract. No payment shall be delayed by reason of any slow down or cessation of work in connection with the takeover of the Original Contract by the Surety. All payments shall be made through the Surety's consultant Bierhalter & Associates, at the address set out below. The Surety agrees to spend its own funds as may be necessary from time to time to pay for the performance of the Original Contract by the Completion Contractor in the event that the Contract Balance is insufficient, with any such payments being credited against the penal sum of the Performance Bond. In no event shall the Owner withhold any of the Contract Balance from the Surety 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. 5. Time for the Performance of the Work. The Surety shall complete the work required under the Original Contract pursuant to this Agreement on or before 90 (ninety) days from the Notice to Proceed (the "Completion Time"). The Surety is hereby granted a non-compensatory time extension from the original completion date in the Original Contract until the Completion Time. As consideration for the non-compensatory time extension, the Surety hereby waives any right to any claim for any additional time extensions and/or damages as a result of any delays, which may have been caused by the Owner up to, and including the date of this Agreement. Owner agrees that it will waive and release its claim to liquidated damages for delays in the completion of the Project if any delay arises out of work done on the Project prior to the date of this Agreement. However, this Agreement does not waive or release the Owner's right to claim liquidated damages for delays in completion of the work beyond the Completion Time, except to such extent that extensions of contract time are provided for or excused under the Original Contract and this Agreement. 6. Use of Equipment and Materials. Insofar as the Owner has any right, title or interest therein, the Owner agrees that the Surety and its Completion Contractor shall have the right to use, without charge, any of the equipment, materials and appurtenances furnished or supplied by the Former Contractor which may be stored on or about the premises of the Project site Takeover Agreement TMD Associates HMAC 2004-15 V fai ,L�.��1 : ' `i�.J..y�. V �.D July 11,2006 , Page 3 of 9 v0�f v l �k L �`d '•t� LAI or materials which may have been fabricated for use in connection with the Original Contract, whether or not presently upon the Project site. 7. Insurance. The Surety may satisfy the required insurance obligations under the Original Contract by providing evidence of the required insurance coverage carried by the Completion Contractor, with the Owner, the Surety and Surety's consultant Bierhalter & Associates being named as insureds under the policy or policies, with said coverage being primary, non contributory as to the Owner, Bierhalter & Associates and Surety. 8. The Surety's Representative on the Project. The Completion Contractor and or Bierhalter & Associates shall represent the Surety at the Project. Surety shall specifically authorize its consultant to be its representative (the "Authorized Individual") solely for the purposes set forth in this paragraph. The Authorized Individual will represent the Surety in dealing with the Owner on day-to-day construction issues with respect to the Project. The Surety hereby designates the Authorized Individual to prepare and process pay requisitions on the Original Contract. However, the Surety will sign all pay requisitions submitted to the Owner. Payments from the Owner shall be made payable to the Surety and transmitted to the Surety at the following address, unless and until the Owner is notified in writing of any different address: Gary Bierhalter Bierhalter & Associates P. O. Box 2826 Conroe, Texas 77305-2826 The Authorized Individual shall have, on behalf of the Surety, the authority to negotiate and sign change orders for extra work (work that is different from, in excess of, or beyond the scope of the work required by the Original Contract and existing change orders) requested or required by the Owner (hereinafter "Change Order") without the Surety's prior written approval, provided the Change Order does not exceed $10,000 and the Completion Contractor is given additional time to perform the Change Order. If the Change Order does exceed $10,000, or no additional time is given to the Completion Contractor to perform the Change Order, then the Surety's prior written approval is required to negotiate the Change Order and the final Change Order must be signed by the Surety and not the Authorized Individual. If the total of all of the approved Change Orders exceeds the sum of $50,000, then the Surety, not the Authorized Individual, must approve in writing all additional or subsequent Change Orders regardless of the amount of each such Change Order. The Authorized Individual has no authority to negotiate deductive Change Orders, credits, backcharges or net deductions from the Original Contract Takeover Agreement TMD Associates HMAC 2004-15 N July 11,2006 Page 4of 9 v9Ul� c�i� �IL,�fU or the Contract Balance of any nature whatsoever without the Surety's prior written approval. Any agreements with respect to the warranty work of the Former Contractor or corrective work as a result of latent defects in the work performed by the Former Contractor shall require the written approval of the Surety. 9. The Surety's Bond 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 Bond for the performance of the work, after the expenditure of the Contract Balance, is limited to and shall not exceed the penal sum of the Bond. 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 contract, 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 Bond, less any payment(s) made to Owner for performance under this Agreement. 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 Bonds. Nothing in this Agreement constitutes a waiver of such penal sum or an increase in the liability of the Surety under the Bonds. 10. Reservation of Surety's Rights. Surety expressly reserves all prior rights, equitable liens and rights to subrogation that would be the laborers', materialmen's, or the Former Contractor's under the Original Contract (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 contract. No waiver of such rights is agreed to or intended regardless of any provisions of this Agreement. 11. Cooperation and Best Efforts. 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. 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 Takeover Agreement TMD Associates HMAC 2004-15 July 11,2006 Page Pa e 5 of 9 7 Uo ti"V 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 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. 14. Changes. 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. 16. Recitals. The Recitals contained in this Agreement are incorporated herein by reference and made a part hereof. 17. Governing Law and Jurisdiction. 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: Engineering Department City of Fort Worth, Texas 1000 Throckmorton Street Fort Worth, Texas 76102 Attention: A. Douglas Rademaker,P.E., Director Takeover Agreement TMD Associates HMAC 200415 v. �'?'. r f July 11,2006 Page 6 of 9 i Yi ��N�I��Yi11'i� Y�L1�0 1 Copy to: Engineering Department City of Fort Worth, Texas 1000 Throckmorton Street Fort Worth, Texas 76102 Attention: Susan L. Schwinger,P.E., Project Engineer City Attorney's Office 1000 Throckmorton Street Fort Worth,Texas 76102 Attention: Amy J. Ramsey, Assistant City Attorney As to the Surety: Capitol Indemnity Corporation 1600 Aspen Commons Middleton, Wisconsin 53562 Attention: Scott Horn, Claims Examiner 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. 22. Construction of Agreement. 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. Takeover Agreement TMD Associates HMAC 2004-15 �� _ r COM U Jul 11 2006 G^lu J�� `, Page 7 of 9 CITY �NvNVk'v'�l� [Remainder of Page Intentionally Left Blank] Takeover Agreement TMD Associates HMAC 2004-15 July 11,2006 Page 8 of 9 IN WITNESS WHEREOF, the parties have executed this Agreement on the date indicated above, and each of the undersigned personally represent and warrant that they have the full right, power and authority to execute this Agreement on behalf of the respective parties. ATTEST: OWNER CITY OF FO WORTH B Marty Hendri Marc A. Ott City Secretary Assistant City Manager 1V0 N[�i; 10-`,Q- (RED Approv to Formality: / Approval Recommended: 42 Amy J. sed A. Douglas Rademaker, P.E. 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