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HomeMy WebLinkAboutContract 40584CIT! SECRETARY CON1RpCT No TAKEOVER AGREEMEN I This akeover Agreement (the "Agreement") is made and entered into this day of - 2010 by and between AMERICAN SAFETY CASUALTY INSURAN6t CO ANY (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 ("Original Contract") to furnish all labor and materials and perform all work for: Job Title: HMAC SurFace ®verlay (2009-08) Project #6 C293-541200-207620132783 City Secretary #: 39119 Bond #: ASB512264 (The "Project") 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 Contracts, the Former Contractor as principal and the Surety made, executed and delivered to the Owner Performance Bond No. ASB512264 (the "Bond"); WHEREAS, Former Contractor has abandoned the Original Contract 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 those portions of the Original Contract started but not completed by the Former Contractor in accordance with the terms of the Bonds and this Agreement provided that in doing so it will receive the Retainage Balance in accordance with the terms of this Agreement. 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 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 list attached hereto as Exhibit "A" 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 terms of the Takeover Agreement 2009-8 Punchlist Principal: Dirtco d/b/a Styles Page 1 of 7 -- �a-�y��KL irtECCJ C�T� SECRETARY 07-20-1 0 AO :1--47-40RTH, TX Original Contract. Owner acknowledges that ail other work in place undertaken by the Former Contractor and not identified in Exhibit 'A" is acceptable and that substantial completion has been achieved with respect to that portion and only that portion of the Project that the Former Contractor performed work on. Surety here acknowledges that not all work required by the Original Contract has been undertaken by the Former Contractor and that the balance of the work required by the Original Contract is subject to a separate agreement. 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, 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 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 arrange for the performance of the work contemplated by this agreement through a completion contractor. 3. Contract Balances. The accumulated Retainage presently associated with the Project is: $21,181.61. The Owner acknowledges that the amount set out above ("Retainage Balance") 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 Retainage Balance is dedicated to and will be applied to the completion of work contemplated by this Agreement. Upon satisfactory completion of the work contemplated by this Agreement, Owner will pay the Retainage Balance to the Surety in accordance with the terms of this Agreement. 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 no event shall the Owner withhold any of the Retainage 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 Retainage Balance as a result of, or charge to Former Contractor, any alleged liquidated and/or actual delay damages caused by any action or inaction of the Former Contractor, completion contractor or Surety. Takeover Agreement 2009-8 Punchlist Principal: Dirtco d/b/a Styles Page 2 of 7 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 Retainage Balance by any alleged assignee, successor, creditor, trustee, receiver, or transferee of the Former Contractor or by any other party or governmental entity making claim to the Retainage 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 C/O Cupples & Associates, PLLC 1331 Gemini, Suite, 201 Houston, TX 77058-2729 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. 5. The Surety's B®nds Liability. The Performance and Payment Bonds furnished for the Original Contract 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 Contract or otherwise to complete the work, if any. Nothing contained herein shall limit Surety's obligations under the Maintenance Bonds for the project. Takeover Agreement 2009-8 Punchlist Principal: Dirtco d/b/a Styles Page 3 of 7 6. 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 Original Contracts. No waiver of such rights is agreed to or intended regardless of any provisions of this Agreement. 7. Time for Completion, Cooperation and Best Efforts. Owner and Surety agree that the Completion Deadline and the time to complete the work contemplated by this Agreement be thirty (30) calendar days calculated from a written notice to proceed 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 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. 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. 9. 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 Takeover Agreement 2009-8 Punchlist Principal: Dirtco d/b/a Styles Page 4 of 7 conducted prior to the effective date of this Agreement shall not in any way vary or alter the terms of this Agreement. 10. 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. 11. 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. 12. Recitals. The Recitals contained in this Agreement are incorporated herein by reference and made a part hereof. 13. 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. 14. 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 Works Attn: William A. Verkest, P.E., Director 1000 Throckmorton Street Fort Worth, Texas 76102 City Attorneys 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 Takeover Agreement 2009-8 Punchlist Principal: Dirtco d/b!a Styles Page 5 of 7 With a copy to: James D. Cupples Cupples & Associates, PLLC 1331 Gemini, Suite, 201 Houston, TX 77058�2729 15. Effective Date. This Agreement is effective as of the date first written above. 16. Successors and Assigns. This Agreement shall be binding upon the parties and their respective successors and assigns. 17. 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. 18. 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 Fernando Costa Assistant City Manager Takeover Agreement 2009-8 Punchlist Principal: Dirtco d/b/a Styles Page 6 of 7 AMERICAN SAFETY CASUALTY INSURANC�CO. o e ympio Surety &Property Claim Manager OFFI0A�. CITE �t:'c;i�tTARY TX Recommended: William A. Verkest, P.E., Director Transportation & Public Works Department Approved as to Form and Legality: Amy J. Ramsey Assistant City Attorney ATTEST: Marty Hendrix City Secretary Date: No M&C Required - Authorized by contract executed per Takeover Agreement 2009-8 Punchlist Principal: Dirtco d/b/a Styles Page 7 of 7 �71®*06000 OOOoo0pp y� �GPO O VOO� 0O � O0 � AA 0��0000000 OFI✓I�e� � � � CORD I�T,�:. FORNIbRTH z, ]f?�TA� gNSP>ECTIOttd il'lUi`iCH itdST PRC)JE(.`i' ;VA14fP.: F•It�fAC Surface C3veriap (2d1(19-Q8) t1t Various Locations D.O.E. lfq: 6277 DATE: April 2$, 2010 1. Wellesley Ave. 2. ��cllr4ltp Ave. 3. Vficl�Fcy :lvc. 4. Sanguinet St. 5. Sanguiftet St G. Sxnguinet St. 7. Chaparral Ln. 8. ChaparralI.n. �). Maparml La 10. f.:hnparml Ln. fi' Asphalt uaravelinp atH0 be. St tie. .6 ' ° :1 sphalC unravbeling at Sanguinet SL tie-in • �' Asphalt unraveling at �nlve box - ,.•.,. .. " Asphalt unweling.at Houghton Ave. tie-in 1.' Spced Bump too j*h (tieeds to be removed and replactd) Needs Copsod and sad llsphaltunraveling at Hadanwood Dr. tie-in *' Curb and guttrs holding water ONceds to he removed anti ceplamd) rdin DPipe at ru;t:ds tet be ahoricn ui ` Need curb addrx at 3211i asv oy2r /m 11. Overton %grace lviced to be ntilkd and a-pavrd 12. Overton Terrace Cr. a Needs to ''i and sod 13. Candlalite Ln. a * Asphalt untuvelirtS atArbadawn 13r. de.bin 14. (: mdlelite Ct. "• Needs topsoil and sod 15. Rokv Ct. ro bleeds topsoil and sod beeves .. 17. Pac6saddle'I'd, a'y Needs topsoil and Had It belot iB. Packsaddle. Tdw t r `loads curb addresses 19, Pack addlr'Cc). "` Curb and gtertcr craclaed, tJtipped and damaged (leads to be removed and replacedl 20. Broadleaf DL. x Asphalt unr4vtling at Lon* Eagle Dr. tie in Z . Broadlc Mil "' Asphalt unravc"g at Packsaddle T'rl. tie-in 22. Broadleaf Dr. '' Needs_enpsoil and sod VS A 24. N 0. Buffalo Grove Rd. " Curb and gutter cracked, chipped and damaged (Needs to be =novud and replaced) 20. 3..Nonnandakr St. '* Curb and gutter rxacked, chipped and damaged (41rzxl9 to be =moved. and replaced) St *" iVerdF topsoil and sod EXHIBIT nAn laf2 CITY SECRF i) � CUPPLES & ASSOCIATES, PLLC Ms. Amy J. Ramsey, Asst. City Attorney's Office 1000 Throckmorton Street Fort Worth, Texas 76102 Attorneys At Law 1331 Gemini, Suite 201 Houston, Texas 77058-2729 Telephone: (281) 218-8888 Facsimile: (281) 218-8788 July 14, 2010 City Attorney VIA LONE STAR OVERNIGHT A/RB/LL No. ZK176213 Re: Job Title: Project: City Secretary #: Bond No.: Dear Ms. Ramsey: HMAC Surface Overlay (2009-8) C293-541200-207620132783 39119 ASB512264 Enclosed please find two (2) duplicate original Takeover Agreements which have been executed by American Safety Casualty Insurance Company. Please favor us with one signed by The City as soon as possible. If you have any questions, please give me a call. JDC:jmp encls. Sincerely, CUPPLES &ASSOCIATES, PLLC 07-20-10 A09�.24 IN E:\Williams-cupples\dala\ACTIVEWmerican Safety\Dirtco, L.P\City of Fort Worth - 2009-8\RAMS.071410.LTR.wpd