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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 -.