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HomeMy WebLinkAboutContract 40120cirr SECRETARY CONTRACT NO, 4a TAKEOVER AGREEMENT This Takeover Agreement (the "Agreement") is made and entered into this 6((.OT 1 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 a contract to furnish all labor and materials and perform all work for the project known as Paving Improvements for S. Adams St. DOE 5238 further identified as City Secretary Contract No. 39379 (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 as principal and the Surety made, executed and delivered to the Owner Performance Bond No. ASB512580 (the "Bond"),a WHEREAS, Former Contractor has abandoned the Original Contract and the Owner has made demand upon the Surety under the Bond and has called upon the Surety to fulfill its obligations as surety under the terms of the Bond; WHEREAS, the Surety is willing to undertake the completion of the Original Contract in accordance with the terms of the Bond and this Agreement provided that in doing so it will receive the contract balance 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: AGREEMENT l . Performance of the Work and Close-out. The Surety hereby undertakes to cause the performance of the work specified in the Original Contract, including all Change Orders thereto, and agrees to be bound by the Original Contract. 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 Bond. 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, obligations, 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 term "Contractor" as used in the Original Contract shall be So. Adams DOE 5238 Takeover Agreement Principal: Dirtco d/b/a Styles Page 1 of 7 deemed, after the effective date of this Agreement, to refer to the Surety rather than to the Former Contractor. 2. Comnletion Contractor. The Owner acknowledges that the Surety will subcontract the performance of the work under the Original Contract to a completion contractor. 3. Payment of the Contract Balance and Costs to Complete. Owner represents that the Original Contract amount was $125,697.00 and agrees that the Contract Balance in the amount of $125,697.00 is available to complete the project 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 Balance is dedicated to and will be applied to the completion of the Original Contract. 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. 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 a 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 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 Balance 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. After the Completion Deadline set forth below, Owner shall be entitled to assert liquidated damages pursuant to the terms of the Original Contract. 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 Balance 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: So. Adams DOE 5238 Takeover Agreement Principal: Dirtco d/b/a Styles Page 2 of 7 American Safety Casualty Insurance Company 100 Galleria Pkwy., Suite 700 Atlanta, GA 30339 Attn: Robert D' Olympio 4. 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 and the Surety being named as insureds under the policy or policies. 9. The Surety's Bond Liability. The Bond 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 Bond 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 (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 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 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 Bond, this Agreement, the Original Contract or otherwise to complete the work, if any. Nothing contained herein shall limit Surety's obligations under the Maintenance Bond 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', 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 Bond, including but not -limited to those rights and remedies that may accrue during the completion of the Original Contract. No waiver of such rights is agreed to or intended regardless of any provisions of this Agreement. 1 1. Time for Completion, Cooperation and Best Efforts. So. Adams DOE 5238 Takeover Agreement Principal: Dirtco d/b/a Styles Page 3 of 7 Owner and Surety agree that the Completion Deadline and the time to complete the Work will be one hundred and twelve (112) calendar days from a written notice to proceed to be issued by Owner to 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 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 Bond. 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. 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 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. So. Adams DOE 5238 Takeover Agreement Principal: Dirtco d/b/a Styles Page 4 of 7 The Recitals contained in this Agreement are incorporated herein by reference and made a part hereof. 17. Governinr 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 Bond, shall be made as follows: As to the Owner: Department of Transportation &Public Works Attn: William A. Verkest, P.E., Director 1000 Throckmorton Street Fort Worth, Texas 76102 Department of Housing &Economic Development Attn: Jay Chapa, Director 908 Monroe Street, 5`h Floor Fort Worth, Texas 76102 City Attorney s Office Attn: Amy J. Ramsey, Assistant City Attorney 1000 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 77058-2729 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. So. Adams DOE 5238 Takeover Agreement Principal: Dirtco d/b/a Styles Page 5 of 7 21. Invalidity, Illeeality or Unenforceability. In the event that one or more provisions %J 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. 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. 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. CITY OF FORT WORTH Tom Higgins Assistant City Manager Recommended: Jay Chapa, Direc$or Housing &Economic Development Approved as to Form and Legality: So. Adams DOE 5238 Takeover Agreement Principal; Dirtco d/b/a Styles Page 6 of 7 AMERICAN SAFETY CASUALTY INSURANCE CO. & Property Claim Manager Assistant City Attorney ATTEST: Marty Hendri; City Secretary CSC No. No M&C Required — ` Authorized by contract executed p M&C C-23835 So. Adams DOE 5238 Takeover Agreement Principal: Dirtco d/b/a Styles Page 7 of 7 OFFIGI�L RECORD CITY SECRE'��RY T. WORTH, TX