HomeMy WebLinkAboutAgreement for Tender of Replacement Contractor and Payment and For Release
Augusta Richmond GA
DOCUMENT NAME: MVee.J"Ylen-r mr lemey
of ~i Vbcernent- Con-t-rClCtov- D-rd
. ~:Jmcn+ p.-i',d ~y1Ze.\-e:::tse
DOCUMENT TYPE:
A 3Yc:e..~n+
YEAR: 2J,)c)o
BOX NUMBER:. q
F~E NUMBER: I t-flJ 2.l.J
NUMBER OF PAGES: / I
'i
.....
.. ::
~.
.,
~
AGREEMENT FOR TENDER OF REPLACEMENT CONTRACTOR.AND
PA YMEN:T, AND FOR RELEASE
. . ~
THIS AGREEMENT is made this L day of Febmary, 2000 by and between the
. city of Augusta, Georgia, a political subdivision of the State of Georgia -("Obligee"),
Continental Casualty Company ("Surety") and Team 4 Contracting, Incorporated
("Replacement Contractor").
~
v
IlliCIT ALS
WHEREAS, on or about November 4, 1998, the city of Augusta, Georgia
("Obligee") entered into a certain constmction contract ("Contract") with Excel
Management Group, Inc. ("Original Contractor") for the constmction of it project known as
Blythe Community Center ("Project");
WI-IEREAS, in c011junction with Original Contractor's peifomlance of the Contract,
Continental Casualty Company ("Surety") issued a Perfonnance Bond No. c190550602
("Bond"), obligating itself to Obligee in the event Original Contractor did not well and tmly
perform all of the conditions of the Contract; and
WHEREAS, Original contrac.tor has ceased its performance of the Contract and has
been defaulted and terminated, and the Obligee has called.upon the Surety to fulfill its
obligations as surety under the 'terms of the Bond; and
WHEREAS, Obligee desires to effect the completion of the work covered by the
Contract in order to expedite completion and avoid delay: and
WBEREAS, as a measure of cooperation with Obligee' and to mmmllze costs,
Surety is willing and desires to procure the completion of the Contract in accordance with
the temlS of this Agreement and to pay Obligee a sum of money to otherwise compensate
Obligee for the alleged default by Original Contractor, all in return for a release of Surety
from any executory obligation or liability lmder the Bond, except as provided for herein;
WHEREAS Teanl 4 Contracting, Incorporated ("Replacement Contractor") is a
constmction contractor that Surety has identified as a candidate for performing the balance
of the work under the Contract as a replacement contractor; -
COVENANTS
NOW THEREFORE, the parties hereto have agreed as follows:
1.
Surety hereby proffers to Obligee, pursuant to the terms of the Bond, Team 4
Contracting, Incorporated ("Replacement Contractor"), as a contractor to complete the work
on the Project described in the contrac~,
!'....
. ,:
.t'
,
2.
Obligee and Surety agree and stipulate that the proffer of Replacement Contractor is
a reasonable form of perfom1ance under the Bond by Surety, and that contracting with
Replacemerit Contractor is a reasonable way for Obligee to proceed so as to mitigate any
damages it may claim to have incurred as a result of the failure of Original Contractor to
complete performance of the Contract.
3.
Replacement Contractor agrees to complete the Contract, and provide a Performance
Bond and a Payment Bond ("Replacement Bonds"), according to the tem1S outlined in
Attachment "A" hereto ("Replacement Contract"). Replacement Contractor will warrant all
work previously performed under the Contract as well as all of the work to be perfom1ed
under the Replacement Contract. Replacement Contractor's promise to complete the
Contract is made to Obligee only. Replacement Contractor shall be the sole principal
obligor and Obligee will be the sole obligee named in the required Bonds. Surety is not a
promisor or co-promisor in any sense of Replacement Contractor's promise to complete the
Contract or the Replacement Contract.
4.
Except to any extent otherwise agreed in writing, Surety does not undertake to pay
Replacement Contractor any amounts for perfom1al1ce by Replacement Contractor of the
Replacement Contract or for providing a Payment Bond or Performance Bond, and Surety
s~all have no liability, whether original or derivative, for making payments to Replacement
Contractor pursuant to this Agreement, but rather Obligee shall pay to Replacement
Contractor the price stipulated in Attachment "A" for performance of the Replacement
Contract, such payment to be made generally according to the terms of the Replacement
Contract.
5.
Replacement Contractor recognizes and agrees that Surety has relied upon and is
relying upon Replacement Contractor's commitment to adopt as some of Replacement
Contractor's subcontractors and material suppliers on the Project certain parties who were
subcontractors and suppliers to Original Contractor, and Replacement Contractor agrees to
contract with the entities identified on Attachment "B" hereto and to pay each of them the
amount shown, respectively, for the completion of the appropriate remaining work by each
subcontractor and the delivery of the appropriate remaining materials by'each supplier,
subject to any legitimate disputes, claims or modifications in the scope of work or delivery
of materials arising or occurring after the date of tIns Agreement. This foregoing provision
is intended to be by and between Surety and Replacement Contractor, and Obligee shall
have no obligation, liability, right or interest with respect thereto.
...'
"
6.
Within thirty (30) days of the execution of this Agreement, but only after delivery by
Replacement Contractor to Obligee of the Replacement Bond; Surety shall pay to Obligee
the sum of$184,533.04 (i.e., the difference between the Replacement Contractor's price of
$335,428.00 plus $9,573.05 for owner's increased costs, which includes but is not limited to
architectural fees, engineer fees and any other costs or fees, less the unpaid contract ba~ance
of $160,468.01) as a cash settlement of any claims which have been or could otherwise be
asserted against the Performance Bon:dfurnished by Original Contractor and Surety, except
as provided for otherwise herein.
7.
Obligee does hereby r~lease, acquit and forever discharge Surety and its successors
and assigns of and from any' and all claims, rights; demands, and/or causes of action of
whatsoever kind or nature which Obligee has or may ever claim to have, now or in the
future, against Surety under and/or by reason of its Perfonnance Bond previously furnished
to Obligee. This release specifically excepts, and surety shall remain liable as provided for
in the Bond, for any latent defects in the existing work performed by the Original Contractor
as of the date of this Agreement that are not otherwise covered in the obligations of the
Replacement Contractor.
8.
Obligee hereby agrees toretuID the original of said Performance Bond to Surety
upon execution of tIns Agreement. This'Release is contingent upon the execution by the
Replacement Contractor of the Replacement Contract.
9.
Obligee does hereby assign lU1to Surety, its successors and assigns, to the extent of
payment made by Surety to Obligee; any and all rights, demands, claims, and/or causes of
action which Obligee has against Original Contractor arising out of, as a result of, and/or on
the basis of the default and breach by the Original Contractor of the original contract for the
Project, and Obligee gives Surety; its. successors and assigns, full power and authority for
Sur~ty's own use and benefit, blJtat Surety's own cost, to ask, demand, collect, receive,
compound and/or release, and in its name or otherwise, to prosecute and withdraw any
claims, suits or proceedings at law,or in "equity as against Original Contractor in its efforts to
obtain recovery upon its rights under said assignment. Nothing contained herein, however,
shall prevent or estop Obligee from defending itself or asserting any defense at law or in
equity in. any proceeding, suit or action initiated against Obligee by Original Contractor.
( ~".
.t4_'
'f'l f
~
10.
,
Surety acknowledges and agrees that its Payment Bond previously furnished for said
Project shall continue to remain in full force and effect in accordance with its Oliginal tenor,
except that it is expressly agreed by and between Surety and Obligee that the scope and
coverage of said Payment Bond shall be limited to and shall apply only to statutory claims
for payment of subcontractors and suppliers of Original Contractor for work perfonned
and/or materials delivered prior to the commencement of Replacement Contractor's
perfomlance under the Contract, and that said Payment Bond shall not apply to or cover the
Replacement Contractor or any of its subcontractors and suppliers for any work performed
and/or materials delivered after said date.
11.
This Release Agreement shall extend to and be binding upon the parties hereto and
their respective successors, assigns, and privies.
12.
This Agreement shall be construed and enforced according to the laws of the State of
Georgia.
CfM
(signatures conti~ued on next page)
~
By:
Its: .
By: rent Beaty
Its Authorized Representative
\
4 .. ~
,;: -0
Agreement for Tender of Replacement Con/ractrJr and PaymenJ, O1Id for Re~ease between Clry of Augusta,
GeorgIa. Continental Casua/1y Company. and Team 4 COn/roc/lng. IncorptiNoted
Replacement Ca:>>ntractor:
TEAM 4 CONnRACTlNG,
INCORPORAlTED
~.
5
'j
'i
...
......
~.;
';:."
ATTACHMENT "A"
REPLACEMENT CONTRACT
PURSUANT TO TENDER AGREEMENT
This Replacement Contract Pursuant to Tender Agreement ("Agreement") is entered
into this L ~ay of February, 2000 by and between Augusta, Georgia, a political
subdivision of the State of Geqrgia ("Owner") and Team 4 Contracting, Incorporated
("Replacement Contractor").
RECITALS
WHEREAS, on or about November 4, 1998, the City of Augusta, Georgia
("Owner") entered into a celtain construction contract (together with all Change Orders and
modifications thereto) (collectively "Contract") with Excel Management Group, Inc.
("Original Contractor") for the construction of a project known as Blythe Community
Center ("Project");
WHEREAS, in conjunction with Original Contractor's performance of the Contract,
Continental Casualty Company ("Surety")issued a Performance Bond No. c190550602
("Bond"), obligating itself to Owner in the event Original Contractor did not well and truly
perform all of the conditions of the Contract; and
WHEREAS, Original Contractor has ceased its performance of the Contract and has
been defaulted and terminated, and the Owner has called upon the Surety to fulfill its
obligations as surety under the teims of the Bond; and
WHEREAS, Owner desires to effect the completion of the work covered by the
Contract, in order to expedite completion and avoid delay and Surety desires to cooperate
with Owner and procure completion of the Contract; and
WHEREAS, Surety invited bids for completion of the Contract between Original
Contractor and Owner; and
WHEREAS, Replacement Contractor has submitted a bid acceptable to Surety for
completion of the terms of the Contract: including those obligations set forth herein in an
amoUnt of $335,428.00; and .
WHEREAS, Surety has tendered Replacement Contractor to Owner to perform the
balance of the work under the Contract; and
WHEREAS, there remains a sum of $160,468.01 under the tem1S of the Contract
between Original Contractor and Owner for completion of work remaining;
;--:-
~-:'-~ .
.'
COVENANTS
NOW THEREFORE, the parties hereto have agreed as follows:
1.
Replacement Contractor represents that it has received copies of the Contract, all
Change Orders and Modifications through the date of this Agreement, and that Replacement
Contractor is fully familiar with the contents thereof, and with the job site and the condition
thereof, the materials available upon the job site or elsewhere, as made known to it, but not
yet incorporated into the project, the nature and status of the work previously performed on
the Project by the Original Contractor and others, and is aware of the work to be performed
in order to complete the project, including conditions resulting from deterioration during the
present period of cessation of work on the project, if any, and conditions resulting from
omissions, oversights and errors by Original Contractor, if any, conceming such matters as
strength of materials, adequacy of soil compaction, etc., and precise adherence to plans and
specification.(including, but not limited to, Replacement Contractor's responsibility for
replacement of the existing roo'f on the building so as to bring the building into confoffi1ity
with the original plans and specifications). Replacement Contractor shall not be responsible
for such conditions as are ordinarily not discoverable by routine examination at this stage .of
construction and have not been made known to or discovered by Replacement Contractor.
Other than the exceptions stated, all such work required for completion of the project shall
be the responsibility of Replacement Contractor under the terms hereof.
2.
Replacement Contractor. will warrant all work previously performed under the
Contract and all work to be performed to complete the Contract.
3.
Replacement Contractor will be responsible for any and all defects in the work
which is performed by Replacement Contractor and any of Replacement Contractor's
subcontractors or materialmen. Replacement Contractor shall also be responsible for all
defects in Original Contractor's work as are known to Replacement Contractor or are
ordinarily discoverable by routine examination at this stage of construction. Replacement
Contractor will not be paid additional funds for the corrections of said defects. However, if
Replacement Contractor determines later that there is a latent defect (i.e., not ordinarily
discoverable or known to Replacement Contractor at the time of this Agreement) in Original
Contractor's work or materials, Replacement Contractor shall notify Surety immediately
upon its discovery of such latent defect. Surety may then conduct its own investigation, and
if Surety also agrees that there is a latent defect in Original Contractor's work or materials,
Surety may authorize Replacement Contractor to correct such latent defect on a time and
J';t
.1':- .
....
material basis. Such authorization to correct latent defects will only be effective if made in
writing by Surety.
4.
Replacement Contractor will promptly, upon the execution of tIns Agreement,
commence work on the Project and will perform and complete the Project in accordance
with the terms contained in the Contract between Original Contractor and Owner, except:
(a) The contract sum for completion of the Contract shall be $335,428.00;
(b) Time of commel1cement shall be as soon as practicable after the
execution of this contract; and time for completion shall be 120 days
from the issuance of a notice to proceed with the Project.
5.
Replacement Contractor shall provide, with the execution of this Agreement, surety
bonds and insurance policies in such forms as required by the Contract.
6.
Replacement Contractor represents has read the Contract thoroughly and stipulates
that it understands that the contents of the Contract. Furthermore, Replacement Contractor
represents that is has had the opportw1ity, at it's own expense, to consult with legal counsel
regarding its rights and obligations under tIns Agreement and under the Contract.
7.
This Agreement contains the entire understandings, discussions and agreements
between Owner and Replacement Contractor hereto. Owner and Replacement Contractor
each acknowledge that there have been no oral, written or other representations, warranties,
or promises, whether expressed or implied between them that serve as a condition precedent
to or an inducement to the execution and delivery of this Agreement. All written or oral
representations, warranties, or promises prior to this Agreement are hereby geclared null and
void arld shall not in any way vary or alter the terms of this Agreement.
8.
Owner and Replacem~nt Contractor each agree that this Agreement is for the sole
benefit of Owner and Replacement Contractor, and that no third party shall be deemed to
have any interest herein or any enforcement of the rights hereon.
-- .
,i'
/~.. .~
.;
9.
Owner shall pay to Replacement Contractor the sum of$335,428.00 for completion
of the Project in the same manner and upon the same terms as set forth in the contract
between Original Contractor and Owner.
IN WITNESS WHEREOF, we have hereunto set out hands and seals the day and
year first above written.
Owner:
AUGUST A. GEORGIA
A politi subdivision of the State of Georgia
I1!AJ By:
f' - Its:
Replacement Contractor:
TEAM 4 CONTRACTING,
~~
Its: ~ .
1,1
4
TOTAL P.03
~';-i
~
l~a[ilit~ lF0Ju~lt (xQJlllinua),~ui~}~; D1U~:.~
2623 Washington Road Bldg. F Ste. IOI-B
Augusta, Ga. 30904
706 736-9272 Office
706736.;8142 Fax.
January 31, 2000
Harry Revell, Esq.
Burside, Wall, Daniel, Ellison, & Revell
Post Office Box 2125
Augusta, Ga. 30903
Re: Blythe Community Center Sub-contractor List
Metal building & roof
Bowling Contractors - Bob Bowling
2752 Whiteoak Road Dearing, Ga. 30808 556-1554
Electrical
AC.E.S. - David Alexander
1164 Piney Grove Road AugUsta, Ga. 30906 798-8222
Plumbing & HV Ac
C&L Mechanical- Larry Lariscey 592-1006
2352 Mims Road
Hephribah,Ga.30815
Painting
Hans Paint Company - Hans J. Nitsch 790-0224
963 Horseshoe Road
Augusta, Ga. 30906
Site Prep & Grading
Gene's Trucking- Gene Kirkland 592-4455
4005 Brasswell Road
Blythe, Ga. 30805
Asphalt Paving
Royal Grading & Paving - Alan Hodgkins 556-0340
5591 Wrightsboro Road
Grovetown, Ga. 30813
:2 if;;;t fJ
....",
,.;~
Acoustical Ceilings
F & H Drywall- Wayne Hawkins 613-9217
121 East Marion Avenue
North Augusta, S.c. 29841
Floor Covering
Fogel's Carpet & Vinyl- Aaron Helms 738-9703
2825 Washington Road
Augu~ta, Ga. 30909
Cabinets
Christian Millworks - Bennie Christian 823-0000
910 Molly Pond Road
Augusta, Ga. 3090 I
-.