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HomeMy WebLinkAboutContract 39119-TA1CITY SECRETARY CONTRACT NO, R I 1 TAKEOVER AGREEMENT This akeover Agreement (the "Agreement") is made and entered into this K) ' day of ) erm^A �q, , 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 ("Original Contract") to furnish all labor and materials and perform all work for: Job Title: HMAC Surface Overlay (2009-08) Project #: 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 consideration agreed to 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 Performance of the Work and Close-out. The Surety hereby undertakes to cause the performance of the uncompleted work as set forth in the Original Contract 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 Original Contract. Ow Takeover Agreement 2009-8 New Work Page 1 of 7 OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX that other work in place undertaken by the Former Contractor and completed by the Surety pursuant to a separate agreement is acceptable and that final completion has been achieved with respect to that portion and only that portion of the Project that the Former Contractor and Surety performed work on. Owner and Surety here acknowledge 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 the subject of this agreement. Owner has identified generally the scope of remaining work item and estimated unit quantities on exhibit "A' attached hereto. 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 and will enter into a completion contract that will subsequently be assigned to Owner. 3. Contract Balances. The remaining Contract Balance associated with the Project is: $838,974.18 and the retainage balance is $0.00. The Owner acknowledges that the amount set out above ("Contract 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 Contract Balance is dedicated to and will be applied to the completion of work contemplated by this Agreement. Owner will pay the Contract Balance to the Surety or its assignee, in accordance with the terms of this Agreement and the Original Contract. The Surety agrees to spend its own funds as may be necessary from time to time to supplement payments for the performance of the work contemplated by this Agreement. In no event shall the Owner withhold any of the Contract Balance from the Surety or its assignee 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 Former Takeover Agreement 2009-8 New Work Page 2 of 7 Contractor, any alleged liquidated and/or actual delay damages caused by any action or inaction of the Former Contractor, completion contractor or Surety. 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 the Former 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 or of an assignment: American Safety Casualty Insurance Company c/o Cupples & Associates, PLLC 1331 Gemini, Suite, 201 Houston, TX 77058-2729 4. Assignment. It is anticipated by the parties that after Surety procures the services of a completion contractor to perform the remaining work under the contract; that the Surety/Completion Contractor contract will be assigned by Surety to Owner. Upon notice of assignment, Owner will coordinate and collaborate with Completion Contractor in routine fashion to complete the work, all without further involvement of Surety. Surety agrees that it will have Completion Contractor furnish payment, performance and maintenance bonds for the value of the remaining work under the contract and that Owner will be named as an obligee on said bonds. Completion Contractor will also furnish all insurance required by the Original Contract. Providing Owner has received the bonds mentioned above, Owner agrees that upon the expiration of five days after its receipt of the Notice of Assignment from Surety, Surety and its original performance bond are released and discharged. Owner further agrees thereafter to make payment for all work performed directly to the Completion Contractor. Owner agrees to look to the Completion Contractor and its surety for completion of the work and all warranties associated with the work undertaken by the Completion Contractor after receipt of the assignment. 5. 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. Takeover Agreement 2009-8 New Work Page 3 of 7 6. The Suretv's Bonds Liabilitv. Nothing in this Agreement constitutes a waiver of such penal sums or an increase in the liability of the Surety under the bonds previously furnished. 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. 7. Reservation of Suretv's Riqhts. 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. 8. 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 one hundred sixty (160) calendar days calculated from the date of a written notice to proceed to be issued by Owner. 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. 9. No Third Partv 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. 10. 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, Takeover Agreement 2009-8 New Work Page 4 of 7 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. 11. 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. 12. 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. 13. Recitals. The Recitals contained in this Agreement are incorporated herein by reference and made a part hereof. 14. Governinq 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. 15. 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 Attorney's Office 4 ,,,4, It,, Attn: , As'sistant 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 New Work Page 5 of 7 With a copy to: James D. Cupples Cupples & Associates, PLLC 1331 Gemini, Suite, 201 Houston, TX 77058-2729 16. Effective Date. This Agreement is effective as of the date first written above. 17. Successors and Assiqns. This Agreement shall be binding upon the parties and their respective successors and assigns. 18. 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. 19. 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 New Work Page 6 of 7 AMERICAN SAFETY CASUALTY INSURANCE CO. Robe=Olympio Surety & Property Claim Manager OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Recommended: William A. Verkest, P.E., Director Transportation & Public Works Department Approved as to Form and Legality: 1 Assistant City Attorney ATTEST: Marty Hendrix City Secretary Date: \\\ w\\o No M&C Required - Authorized by contract executed per dot'L � c -- Z36q / gpva T -zy-o f Ell 5 OFFICIAL RECORD CITY SECRETARY Takeover Agreement FT. WORTH, TX 2009-8 New Work t . Page 7 of 7 PROJECT: City of Fort Worth, Texas City Project No. 01327, TPW Project No. C293-541200-207620132783, City Secretary No. 39119, DOE No. 6277, M&C No. C-23691 Remaining Work Items and Units HMAC Surface Overlay (2009-8) at Various Locations in the City of Fort Worth, Texas ITEM # DESCRIPTION ORIGINAL REMAINING QUANTITY QUANTITY 1 Project Designation Sign 2 Ea. -0- 2 Utility Adjustment Lumpsum .864884 3 Remove and Replace 5000 LF 959.94 LF Concrete Curb & Gutter 4 New Concrete Curb & Gutter 550 LF 550 LF 5 Remove and Replace 6-Inch 3000 SF 754.39 SF Concrete Driveway 6 Remove and Replace 6-Inch 100 SF 100 SF Exposed Aggregate Concrete Driveway 7 New 6-Inch Concrete 100 SF 100 SF Driveway 8 Remove and Replace 4-Inch 100 SF -17.7 SF Concrete Sidewalk 9 Remove and Replace 4-Inch 100 SF 79.80 SF Exposed Aggregate Sidewalk 10 New 4-Inch Concrete 100 SF 100 SF Sidewalk 11 Remove Existing Wheelchair 150 SF 150 SF Ramp and Install Standard 4- Inch ADA Wheelchair Ramp (with detectable warning Dome -Tile surface) 12 New 4-Inch ADA Wheelchair 175 SF 175 SF Ramp (with detectable warning Dome -tile surface) 13 Remove and Replace 200 SY 53.71 SY Existing Concrete Valley Gutter 14 New Concrete Valley Gutter 330 SY 260.25 SY 15 Remove and Replace 5-Ft 1 Ea. 0.00 Ea. Storm Drainage Inlet Top 16 Remove and Replace 10-Ft 1 Ea. 1 Ea. Storm Drainage Inlet Top 17 6-Inch Perforated Subdrain 100 LF 100 LF Pipe 18 8- I n c h P a v e m e n t 66000 SY 42547.06 SY Pulverization EXHIBIT "A" PAGE 1 OF 2 ITEM # DESCRIPTION ORIGINAL REMAINING QUANTITY QUANTITY 19 Cement Modification 860 Ton 599.98 Ton 6 Ibs/sy) �nclassified 20 Street 50 CY 50 CY Excavation 21 Crushed Limestone 50 CY 50 CY 22 Asphalt Pavement and Base 300 CY 94.67 CY Repair 23 HMAC Pavement Level -Up 500 Ton 500 Ton 24 Pavement Wedge Milling 2- 10500 LF 2303.08 LF Inch to 0-Inch Depth, 5.0 Ft Wide 25 Butt Joint Milling 15 Ea. 6 Ea. 26 2-Inch Surface Milling 5300 SY 5300 SY 27 Crack Sealing of Existing 12500 LF 4009 LF Pavement 28 HMAC Surface 89000 SY 65181.12 SY 12-Inch Course Type "D" Mix 29 Removal and Replacement 1 Ea. 1 Ea. of 30-Ft HMAC Speed Cushion with Stripping 30 Removal and Replacement 1 Ea. 1 Ea. of 40-Ft HMAC Speed Cushion with Stripping 31 Water Valve Box Adjustment 50 Ea. 50 Ea. I with Steel Riser 32 Water Valve Box Adjustment 2 Ea. 2 Ea. with Concrete Collar 33 Water Meter Box Adjustment 2 Ea. 2 Ea. 34 Manhole Adjustment with 54 Ea. 54 Ea. Steel Riser 35 Manhole Adjustment with 1 Ea. -2 Ea. Concrete Collar 36 Painting House Addresses 45 Ea. 22 Ea. 37 St. Augustine Grass Sod 600 SY 600 SY 38 Bermuda Grass Sod 600 SY 600 SY 39 Re -Mobilization 3 Ea. 2 Ea. PAACTNEAmerican SafetylDirtco, L.RCity of Fort Worth - 2009-8\ExAfina1.wpd EXHIBIT "A" PAGE 2 OF 2