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Ordinance No. 12,602ORDINANCE NO. 12,602 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING THE ASSIGNMENT AND RELEASE AGREEMENT WITH SURETEC INSURANCE COMPANY FOR THE CDBG NON - HOUSING BUILDING AND STRUCTURAL IMPROVEMENTS PROJECT; AUTHORIZING PAYMENT IN AN AMOUNT NOT TO EXCEED SIXTY -FIVE THOUSAND SEVEN HUNDRED NINETY - FOUR AND 60/100 DOLLARS ($65,794.60); MAKING OTHER PROVISIONS RELATED THERETO; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes the City Manager to execute Assignment and Release Agreement with Suretec Insurance Company for the CDBG Non - Housing Building and Structural Improvements Project. Said agreement is attached hereto as Exhibit "A" and incorporated herein for all intents and purposes. Section 2: That the City Council of the City of Baytown authorizes payment in an amount not to exceed SIXTY -FIVE THOUSAND SEVEN HUNDRED NINETY -FOUR AND 60/100 DOLLARS ($65,794.60) to JC Stonewall Constructors, LP in accordance with the Completion Contract, which is Exhibit "A" to the agreement authorized in Section 1 hereof. Section 3: That the City Manager is hereby granted general authority to approve any change order involving a decrease or an increase in costs of FIFTY THOUSAND AND NO /100 DOLLARS ($50,000.00) or less, provided that the original contract price may not be increased by more than twenty-five percent (25 %) or decreased by more than twenty-five percent (25 %) without the consent of the contractor to such decrease. Section 4: This ordinance shall take effect immediately from and after its passage by the City Council of the City of Baytown. INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the City of Baytown this the 14th day of August, 2014. MAt' L�� - R DES RENTERIA III, Mayor Pro Tem LETICIA BRYSCH, APPROVED AS TO FORM: ACIO RAMIREZ, SR., City o ey RAKaren\Files\City CounciP%Ordinances\2014\August 14\EamestMoneyCon tractwithYates.doc Exhibit "A" ASSIGNMENT AND RELEASE AGREEMENT This Assignment and Release Agreement (this "Agreement ") is made on the dates indicated below by and between the City of Baytown, Texas ( "Owner") and SureTec Insurance Company ( "Surety "). WITNESSETH WHEREAS, on August 3, 2011, RAM Design Build Corporation ( "Original Contractor "), and Owner entered into a contract (the "Original Contract ") for the construction of a project for the Original Contractor to furnish all labor and materials and perform all work for the CDBG Non - Housing Building and Structural Improvements (the "Project ") for the agreed price of ONE MILLION FIVE HUNDRED FIFTY -FIVE THOUSAND THREE HUNDRED FIFTY -SIX AND 00/100 DOLLARS ($1,555,356.00), representing the base bid only ( "Contract Price "); WHEREAS, Surety and Original Contractor, on or about August 3, 2011, provided a statutory Performance Bond No. 5120336 (the "Performance Bond ") in favor of Owner to secure the performance obligations of Original Contractor under the Original Contract and in accordance with Chapter 2253 of the TEXAS GOVERNMENT CODE; and WHEREAS, Surety and Original Contractor, on or about August 3, 2011, provided a statutory Payment Bond No. 5120336 (the "Payment Bond ") in favor of Owner to secure the payment obligations of Original Contractor to suppliers and subcontractors in accordance with Chapter 2253 of the TEXAS GOVERNMENT CODE (the Performance Bond and the Payment Bond are collectively referred to herein as the "Bonds "); and 0 WHEREAS, on September 17, 2013, Owner gave notice of termination to Surety, stating that Original Contractor was in default of the Original Contract (the "Notice of Termination "); and WHEREAS, the revised Original Contract price including all change orders is ONE MILLION FIVE HUNDRED EIGHTY -FIVE THOUSAND ONE HUNDRED THIRTEEN AND 41/100 DOLLARS ($1,585,113.41). To date, ONE MILLION FOUR HUNDRED NINETEEN THOUSAND EIGHT AND 07/100 DOLLARS ($1,419,008.07) has been paid to Original Contractor by the Surety after receipt of such sum from the Owner, leaving a balance, including retainage of ONE HUNDRED SIXTY -SIX THOUSAND ONE HUNDRED FIVE AND 34/100 DOLLARS ($166,105.34) ( "Contract Balance "); and WHEREAS, Surety obtained several not -to- exceed bids for completion of the Project using the Baytown CDBG Building - Completion List prepared by the Owner, and /or its consultants dated July 30, 2013 (the "Completion List "). The most advantageous bid being that of Stonewall Constructors ( "Completion Contractor ") in the amount of THREE HUNDRED SEVENTY THREE THOUSAND ONE HUNDRED TWENTY ONE AND 941100 DOLLARS ($373,121.94) for work covered by the Bonds; and WHEREAS, Owner and Surety have each taken positions, raised defenses or issues, or made claims, the formal resolution of which would add uncertainty, time, and expense to the completion of the Project, as well as possible litigation expenses; and 2 WHEREAS, Owner and Surety desire to minimize the impact of their disagreements and disputes and have reached an agreement to compromise their disputes and provide for the orderly completion of the Project; and WHEREAS, Surety entered into a Completion Contract (the "Completion Contract ") a copy of which is attached hereto as Exhibit A, with Completion Contractor for completion of the Project. WHEREAS, Surety has agreed to assign to Owner the Completion Contract, and WHEREAS, Surety has agreed to issue a one -time payment to the Owner to apply towards the completion of the Project. NOW, THEREFORE, for and in consideration of the mutual promises set forth herein, the payment herein recited, and other good and valuable consideration, Owner and Surety have agreed and do hereby agree as follows: 1. Surety, without recourse or warranty apart from those set forth in this Agreement, hereby assigns to Owner the Completion Contract in the amount of $373,121.94 and Owner agrees to accept the Completion Contract for the performance of the remaining work on the Project under the Original Contract or may complete the work in any manner it chooses without further liability to Surety. Owner will coordinate and cooperate with Completion Contractor in routine fashion to complete all work, all without further involvement of the Surety. 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. By virtue of this assignment, Surety and Owner agree that all references to any rights, obligations, or duties, other than for Completion Contractor's indemnity of Surety and Owner, which indemnity shall continue to inure to the benefit of both Surety and Owner, contained in the Completion Contract, shall be assigned by Surety to Owner. 2. SureTec agrees to waive all subrogation rights it has to the Contract Balance and consents that the remaining contract balance of $166,105.34 belongs to the Project and the same is to be used for completion of the remaining work. 3. Surety agrees to pay to Owner, and Owner agrees to accept, the sum of $141,222.00 in full and final settlement of all of Surety's obligations to Owner, whether known or unknown, under the Performance Bond (the "Settlement Payment "). The Settlement Payment shall be paid within fifteen (15) days of the execution of this Agreement and 3 the return to Surety at Surety's offices in Austin, Texas of the original Contract Performance Bond marked "CANCELED" on the face thereof. 4. Surety agrees to investigate and discharge its liability under the Payment Bond issued by it as to all valid and timely claims made upon it by subcontractors and suppliers of the Original Contractor for labor and material used, consumed, and expended in connection with the Original Contract. In no event shall Surety be liable for any labor, materials, or equipment furnished to or for the Completion Contractor. Owner agrees not to make any promise or representation of payment to any third party, and shall not waive any defenses it may have to such claims. 5. Conditioned on its receipt of the Settlement Payment, Owner hereby releases and forever discharges Surety from any and all claims, demands, causes of action, damages, and /or expenses, known or unknown, arising out of or in any way related to Surety's obligations under the Performance Bond. 6. Surety hereby releases and forever discharges Owner from any and all claims, demands, causes of action, damages, and /or expenses, known or unknown, arising out of or in any way related to the performance of the Original Contract and /or the Bonds. 7. Owner, without recourse or warranty, hereby assigns, sells, and transfers and subrogates Surety to, to the extent of the aforesaid payment, Owner's rights, claims, causes of action, and demands against the Original Contractor with respect to the Original Contract and Project. 8. No waiver by either Party of any breach by either of them of any condition or provision of this Agreement shall be deemed a waiver of any similar or dissimilar condition or provision at the same or any prior or subsequent time. 9. The parties hereby confirm that this Agreement constitutes the entire terms of their agreement and further acknowledge that they have read and understand this Agreement constitutes a full, complete and final settlement and release. Each party acknowledges that it is fully aware of the significance and legal effect of this Agreement, including the Agreement's release provisions, and that it is not entering into this Agreement in reliance on any representation, promise, or statement made by any party except those explicitly contained in this Agreement. 10. This Agreement shall be governed by the laws of the State of Texas and shall be performable in Harris County, Texas. 11. This Agreement supersedes all prior agreements, written or oral, between the parties hereof and shall constitute the entire Agreement and understanding between the parties with respect to the subject matter hereof. This Agreement and each of its provisions shall be binding upon the parties hereto and their successors and assigns, and shall inure to the benefit of the parties hereto, provided, however, that no right of action or benefit shall accrue hereunder to any other person or entity. The provisions 4 herein may not be waived, modified, amended or altered except by a subsequent writing signed by authorized representatives for each party to this Agreement. 12. The provisions of this Agreement are contractual, and not merely recitals, and shall be considered severable. Each part of this Agreement is intended to be separate, and if any term, covenant, condition, or provision hereof is illegal, invalid or unenforceable for any reason whatsoever, such illegality, invalidity or unenforceability shall not affect the legality, validity, and enforceability of the remaining parts of the Agreement. 13. Each of the individuals who have executed the Agreement represents and warrants that he or she is duly authorized to execute this Agreement on behalf of their respective party hereunder, and that all corporate, partnership, trust, governmental or other action necessary for such party to execute, enter into, and perform obligations in this Agreement have been duly taken by such party and have occurred. 5 City of Baytown, Texas By: It's: Date: SureTec Insurance Con r By: Scott Olson, Vice President Date: ew/�1� Exhibit "A" COMPLETION CONTRACT CITY OF BAYTOWN — CDBG NON - HOUSING BUILDING AND STRUCTURAL IMPROVEMENTS THIS COMPLETION CONTRACT (the " Completion Contract ") is entered into this _ day of August, 2014 by and between SureTec Insurance Company (the "Surety ") and JC Stonewall Constructors, LP (the "Completion Contractor "). RECITALS: WHEREAS, RAM Design Build Corporation (the "Original Contractor ") and City of Baytown (the "Owner ") entered into a contract (the "Original Contract ") for the Original Contractor to furnish all labor and material and perform all work for the CDBG Non - Housing Building and Structural Improvements (the "Project ") in accordance with the terms and provisions of the Original Contract, including all contract documents forming a part of the Original Contract; and WHEREAS, as required by law and under the terms of the Original Contract, the Original Contractor and the Surety made, executed and delivered to the Owner a statutory Performance Bond, Bond No. 5120336 (the "Performance Bond "), and a statutory Payment Bond, Bond No. 5120336 (the "Payment Bond ") (collectively, the "Bonds "), both in the penal sum of $1,555,356.00. The Bonds were issued in accordance with Chapter 2253 of the TEXAS GOVERNMENT CODE; and WHEREAS, on or about September 17, 2013, Owner declared the Original Contractor in default in its performance of the Original Contract and terminated Original Contractor's right to proceed thereunder, and the Owner has called upon the Surety to fulfill its obligations as surety under the terms of the Original Contractor's Performance Bond; and WHEREAS, the Completion Contractor has submitted a not -to- exceed Bid Proposal to the Surety to complete the Original Contract (the "Bid Proposal "), said Bid Proposal being attached hereto and incorporated herein by reference as Exhibit A; and WHEREAS, the Surety and the Completion Contractor desire to enter into this Completion Contract under the terms and conditions hereinafter set forth; and NOW, THEREFORE, the Surety and the Completion Contractor, for and in consideration of the mutual obligations and promises hereinafter set forth, do contract and agree as follows: AGREEMENTS: 1. Conditional Effect of this Completion Contract. Notwithstanding the date of the execution of this Completion Contract, this Completion Contract shall be conditioned upon and shall not be effective or in force until the execution of a Assignment and Release Agreement between the Owner and the Surety. If this Completion Contract is executed by the Surety and the Completion Contractor prior to the execution of a Assignment and Release Agreement by the Owner and the Surety, the effective date of this Completion Contract shall be the same as the Assignment and Release Agreement. The failure of the Owner and the Surety to execute a Assignment and Release Agreement shall, at the option of the Surety, render this Completion Contract null and void and of no effect. 2. Contract Documents. This Completion Contract consists of the terms and provisions contained herein, including the CDBG Building - Completion List dated July 30, 2013, (the "Completion List ") and the Completion Contractor's Bid Proposal attached hereto as Exhibit A; all documents or specific portions of documents which may be referred to herein or in any Exhibits attached hereto and incorporated herein by reference, thereby making them a part hereof; and the Original Contract, including all General, Supplementary and Special Conditions, drawings, specifications, forms, addenda and documents forming a part of the Original Contract, and any modifications to the Original Contract, all of which are incorporated herein by reference and which are hereinafter referred to collectively as the "Contract Documents ". 3. Assignment of Completion Contract. Completion Contractor agrees that this Completion Contract may be assigned to Owner and Completion Contractor will perform in accordance with the terms and provisions thereof and all requirements of the Contract Documents issued for the Project. Upon the event of the assignment of this Completion Contract, and payment to Completion Contractor of all amounts then due, Completion Contractor agrees that Surety shall have no further obligations to Completion Contractor whatsoever. Completion Contractor agrees that upon the event of assignment of this Completion Contract from Surety to Owner, all references to any rights, obligations, or duties herein of Surety, other than for indemnity of Surety, which shall continue to inure to the benefit of Surety, shall be assigned by Surety to Owner. Accordingly, notwithstanding the obligations undertaken herein by Surety to Completion Contractor, after assignment of this Completion Contract to the Owner, Completion Contractor acknowledges that Surety will have no further role, duties or obligations under this Completion Contract and Completion Contractor will look exclusively and solely to the Owner and its representatives for all direction, payment and contract administration functions in performance of this Completion Contract. By its signature below, Completion Contractor here consents in advance to the assignment of this Completion Contract to the Owner. 4. Strict Compliance. The Completion Contractor shall be bound to the Owner and the Surety by all of the terms and provisions of the Contract Documents, including administrative as well as technical provisions, and shall strictly comply therewith in all respects. Furthermore, the Completion Contractor shall be bound in the same manner and to the same extent that the Surety and the Completion Contractor or either of them would be bound to the Owner under the Original Contract, including but not limited to the conditions or determinations by the Owner with respect to all work done thereunder. The Completion Contractor shall have no responsibility or liability for indebtedness incurred by the Original Contractor 5. Nature of the Work. It is understood and agreed that the Completion Contractor has, by careful examination, satisfied itself as to the nature and location of the work, and confirmation of the ground and soil, the nature of any structures, including surface and subsurface utilities, the character, quality and quantity of the material to be utilized, the character of equipment and facilities needed for and during the prosecution of the work, the time needed to complete the work, Completion Contractor's ability to meet all deadlines and schedules required by this Completion Contract, the general and 2 local conditions, and all other matters that in any way affect the work under this Completion Contract. Notwithstanding the foregoing, in addition to the provisions of Paragraph 14 below, Completion Contractor has performed a reasonably thorough visual inspection of the work performed by the Original Contractor; however, Completion Contractor may encounter latent defects which Completion Contractor is not aware of despite prior inspection. If any such latent defects materially increase the cost of the performance of the work, Completion Contractor shall be entitled to a negotiated and agreed equitable adjustment in the Completion Contract Price set forth in Paragraph 8 below, and the Completion Contract Time for Performance, set forth in Paragraph 7 below. 6. Work to be Performed. The Completion Contractor shall furnish and pay for all labor, materials, services and equipment and shall do everything else necessary to perform and satisfactorily complete the items identified in the Completion List, hereto attached as Exhibit B as required by the Contract Documents and to the satisfaction of the Owner in such manner as to fully protect and hold the Surety harmless as to its liability to the Owner for the completion of the Original Contract. 7. Time for the Performance of the Work. The Completion Contractor shall commence work within seven (7) days after receipt of a written Notice to Proceed issued by the Surety and shall complete all work in accordance with the terms and conditions of the Contract Documents on or before one hundred twenty (120) calendar days thereafter. Subject to allowable time extensions as provided under the terms of the Original Contract and this Completion Contract, if the Completion Contractor fails to complete the work under the Completion Contract in the time allowed by this paragraph, the Completion Contractor is liable to the Surety for all liquidated damages assessed by the Owner against the Surety under the Original Contract after the date of completion set forth herein. The Surety may withhold from the Completion Contractor payments which otherwise may be due to the Completion Contractor in an amount equal to the liquidated damages assessed by the Owner. Any time extensions granted by the Owner to the Completion Contractor or the Surety for issues that occurred prior to the date of the Notice to Proceed to the Completion Contractor shall not change the time for completion of the work by the Completion Contractor in this paragraph. 8. Price. The Surety shall pay to the Completion Contractor and the Completion Contractor agrees to receive and accept the "not -to- exceed" amounts identified in the Bid Proposal, attached hereto as Exhibit "A." 9. Performance and Payment Bonds. The Completion Contractor shall provide Performance and Payment Bonds each in the penal sum of $373,121.94 in a form acceptable to Surety prior to the Completion Contractor commencing work. The surety must be a commercial surety company currently listed with the U.S. Department of the Treasury, acceptable to the Surety, and licensed to conduct business in the State of Texas. At the option of the Surety, the Performance Bond and the Payment Bond may name either the Surety or the Owner as obligee, or both as obligees. 10. Indemnification Insurance. In addition to the indemnity provided for in the Original Contract, the Completion Contractor shall indemnify the Surety and the Owner against any and all loss, liability, costs, expenses and attorney's fees on account of any injury or claimed injury to persons or property arising out of or claimed to arise out of any act or omission by the Completion Contractor, its agents, servants, employees or subcontractors. In this connection, the Completion Contractor shall 3 provide the insurance in the amounts and types as required by the terms of the Original Contract, naming the Surety, and the Owner as the named insureds under the policy or policies. The Completion Contractor shall also provide the Surety and the Owner with a Notice of Cancellation [providing that the insurance may not be canceled except upon thirty (30) days written notice from the insurer to the Surety and the Owner] in a form acceptable to Surety and owner. All insurance and certificates evidencing said insurance shall be provided to the Surety prior to the Completion Contractor commencing work 11. Payment. A. The Completion Contractor shall prepare, sign and submit to the Surety a request for payment (the "Surety /Owner Requisition ") showing the value of the work completed and the materials stored to date in accordance with the terms of the Original Contract. B. The Surety /Owner Requisition shall be based on the schedule of values approved by Owner and Surety. The amount of the Surety /Owner Requisition as approved by the Owner and the Surety shall be due and payable to the Completion Contractor within fifteen (15) days after the Surety receives payment from the Owner. C. In the same time frame as specified in the Original Contract, the Completion Contractor shall prepare and submit to the Surety a request for payment (the "Surety /Completion Contractor Requisition ") based upon the amount of the Completion Contractor's price to the Surety. The Surety /Completion Contractor Requisition shall be based on the same percentages of completion (the value of the work completed and the materials stored to date) as the Surety /Owner Requisition. The Surety shall pay the Completion Contractor for the Surety /Completion Contractor Requisition as specified in the immediately preceding paragraph. E. Each Surety /Completion Contractor Requisition submitted by the Completion Contractor to the Surety shall contain the following certification: The Completion Contractor hereby certifies to the Surety that the Completion Contractor has paid or will pay from each Surety /Completion Contractor Requisition all bills and invoices of all subcontractors, materialmen and suppliers on the Project for which the Completion Contractor has submitted or is currently submitting a Surety /Completion Contractor Requisition, and that the materials, supplies and equipment placed on the Project by the Completion Contractor for which the Completion Contractor has submitted or is currently submitting a Surety /Completion Contractor Requisition are in accordance with the plans and specifications of the Original Contract. F. The Completion Contractor represents and warrants to the Surety /Owner that it will use any payments received from the Surety under this section to pay the claims of all laborers, subcontractors and suppliers of equipment and materials on or to the Project. If requested by the Surety or the Owner, it shall become a further condition precedent to payment that the Completion Contractor furnish to the Surety proper contingent waivers of liens, releases, affidavits, sworn statements listing all contracts let and to be let and obligations due or to become due for equipment (and rentals thereof), materials, labor and services under subcontracts entered into by the Completion Contractor, and other evidence establishing that all accounts for services, labor, materials, equipment (and rentals thereof) furnished by or for the Completion Contractor 4 in the performance of this Contract and the prosecution of the work have been or will be fully paid. G. Final payment shall be made to the Completion Contractor within thirty (30) days after final completion of the Contract Documents, the Owner's acceptance of the Project, and receipt of final payment by the Surety from the Owner, provided that (1) the Completion Contractor shall have furnished evidence satisfactory to the Surety that there are no claims, obligations or liens outstanding or unsatisfied for labor, services, materials, equipment, taxes or other items performed, furnished or incurred for or in connection with the work that will not be satisfied in connection with the Final Payment, and (2) the Completion Contractor shall have fully performed its obligations under the Contract Documents, including but not limited to all obligations required pursuant to the terms of the Original Contract for final payment. Should there be any such claim, obligation or lien after final payment is made, the Completion Contractor shall (1) have the first option to defend any such claim, obligation or lien at the sole cost and expense, including attorney's fees, of the Completion Contractor; (2) indemnify and hold harmless the Surety and Owner from any such claim, obligation or lien; and (3) pay to the Surety and Owner all monies that the Surety and the Owner shall pay in satisfying, discharging or defending against any such claim, obligation or lien or any action brought or judgment recovered thereon and all costs and expenses, including attorney's fees, disbursements and court costs incurred in connection therewith. Any payments to the Completion Contractor at variance with the provisions of the Contract Documents shall not prejudice or impair the Surety's rights and remedies under the Contract Documents. 12. Subcontractors. The Completion Contractor hereby covenants and agrees that it shall pay all of its subcontractors and suppliers. In the event that the Completion Contractor does not pay its subcontractors and suppliers, with respect to any amounts not disputed by the Completion Contractor, the Surety shall have the right to pay such unpaid subcontractors or suppliers directly and deduct said amounts paid from any payment otherwise due to the Completion Contractor. 13. Maintenance of Records and Accounts. The Completion Contractor shall maintain separate records and accounts covering all costs incurred and expenditures made by it in completing the work under the Completion Contract. The Completion Contractor shall also maintain separate cost records and accounts reflecting the cost of work identified by the Surety, the Owner, or the Completion Contractor as beyond the scope of the work required under the Contract Documents sufficient to allow the Surety to charge the Owner for these costs. The Completion Contractor shall make such records and accounts and supporting vouchers available for inspection and verification by the Surety and /or any authorized representatives of the Owner until the expiration of three (3) years from the date of final payment under the Contract Documents. 14. Latent Defects and Warranty Work Applicable to the Work of the Original Contractor. The Completion Contractor shall correct all latent defective work performed by the Original Contractor and perform all warranty work applicable to the work of the Original Contractor. The Completion Contractor shall notify the Owner and the Surety in the event that any latent defects of any type in the workmanship and /or materials provided by the Original Contractor or a subcontractor of the Original Contractor become evident during the performance of the Completion Contract. The Completion Contractor shall obtain the approval of the Owner and the Surety in writing before proceeding to correct such defects if the corrective work is to be the basis for any claim for additional compensation under this Completion Contract. The Completion 9 Contractor shall be paid by the Surety for such warranty work as may be agreed upon if necessary. 15. Defects In Work. The Completion Contractor shall be responsible for any and all defects in the work which is performed by the Completion Contractor or any of the Completion Contractor's subcontractors or materialmen. 16. Independent Contractor. Except as otherwise provided in the Contract Documents, the Completion Contractor will be permitted to exercise the full prerogatives of a prime contractor in prosecuting the work, including but not limited to the selection and classification of supervisors and workers, scheduling, determination of equipment and material requirements, and the establishment of work hours and work week, including overtime. It is further understood and agreed that the Completion Contractor is an independent contractor in connection with all work to be performed by it pursuant to the Contract Documents. 17. Changes. Any and all provisions relating to changes contained in the Original Contract are specifically incorporated herein by reference and shall be binding between the Completion Contractor and the Surety. 18. Disputes. A. The contractual remedial procedure described in the General Provisions of the Original Contract is specifically incorporated herein by reference and made a part of this Contract. 19. Termination of Agreement. A. Termination for Convenience. This Completion Contract may be terminated in whole or in part by the Surety at any time for the Surety's convenience, provided the Completion Contractor is given not less that ten (10) calendar days written notice of intent to terminate and an opportunity for consultation with the Surety prior to termination. Upon receipt of the termination notice, the Completion Contractor shall promptly discontinue all services (unless the notice directs otherwise) and delivers or otherwise make available to the Surety all data, drawings, specifications, reports, estimates, summaries, and such other information and materials that may have been accumulated by the Completion Contractor in performing this Completion Contract. Subject to the provisions of this paragraph, the Completion Contractor shall be entitled to payment of all costs and profit which it would be entitled to recover under the terms of the Original Contract as if the Owner had terminated this Completion Contract for convenience. The termination of this Contract for any reason, whether for convenience or for cause as described in paragraph 19(b) below, shall not relieve the Completion Contractor of its responsibilities under this Completion Contract and the Original Contract for the work performed and materials supplied, nor shall it relieve the surety for the Completion Contractor of its obligations under the Completion Contractor's Performance Bond and Payment Bond for any claims arising out of the work performed and the materials supplied by the Completion Contractor. B. Termination for Cause. Should the Completion Contractor, at anytime, in the judgment of either the Owner or the Surety, refuse or fail to supply a sufficient number of properly skilled workmen or materials, tools, equipment, facilities, or supplies of a proper quality; or fail in any respect to prosecute the work with promptness and diligence; or interfere with unduly or impede the work of others on the Project; or fail in the performance of any of its obligations under this Completion Contract or under the A Original Contract, and should the Completion Contractor fail within three (3) business days after receipt of written notice from either the Owner or the Surety to remedy such default; or if a Petition of Bankruptcy should be filed by or against the Completion Contractor; or if the Completion Contractor shall become insolvent or fail to make prompt payment to all the subcontractors and /or materialmen or laborers; or shall disregard any applicable state, federal, local or municipal law, ordinance, rules and regulations pertaining to the work; or disregard the instructions of the Owner or the Surety; or for any other cause whatsoever shall not carry on the work in an acceptable manner, the Surety may, after prior written notice and three (3) business days opportunity to cure, in any such event, either terminate this Contract or may exclude the Completion Contractor and its employees and agents from the work without terminating this Contract. In any case, the Surety may take possession of all materials, equipment and tools, and complete, itself or through others, the Completion Contractor's work, charging such completion costs incurred as a result of default against the unpaid balance. If such costs or expenses shall exceed the unpaid balance, the Completion Contractor agrees to pay the deficit to the Surety. The Surety's costs for correcting defective work done by the Completion Contractor shall be reimbursed in full by the Completion Contractor. In the event of any default under this paragraph, the Completion Contractor shall not be entitled to any further payments under this Completion Contract until the Completion Contractor's work shall be entirely finished and accepted by the Owner, and payment therefore made to the Surety. The remedies afforded to the Surety in the above circumstances are cumulative to any remedies available under the Original Contract, which remedies specifically are also declared to be available to the Surety as against the Completion Contractor. C. If the Completion Contractor is terminated for cause in accordance with paragraph B, and it is later determined that the Completion Contractor did not fail to fulfill its contractual obligations, then any such termination by the Surety shall be deemed to have been a termination for convenience, and in such event, adjustment of the contract price provided for in this Completion Contract for termination for convenience shall be made as provided herein. D. Under any and all circumstances, the Surety shall not be responsible to the Completion Contractor for damages for wrongful termination in excess of the payments herein set forth, whether or not such damages are defined as direct or consequential and whether or not determined to be in tort, contract, negligence, strict liability, warranty, expressed or implied, or otherwise. 20. Force Majeure. In the event the construction of the Project is interrupted or prevented by acts of God, acts of war or rebellion, labor disturbances (other than those caused by the Completion Contractor), acts of Government or governmental officers or any cause beyond the control of either party, that party shall be absolved of any responsibility therefore. The Surety's responsibility shall be limited to the presentation of the Completion Contractor's claim to the Owner. Any expense incident thereto shall be borne by the Completion Contractor. The Completion Contractor further agrees that, with respect to such claim, it shall have no greater rights against the Surety than the Surety has against the Owner under the terms of the Original Contract, and the Completion Contractor will abide by whatever final decision is made under the Original Contract regarding these claims (this limitation shall not apply to claims caused by the Surety). In the event of an interruption of the work caused by the acts described above, the Completion Contractor shall return to its performance at the earliest possible date. 7 21 Whole Agreement. The Contract Documents contain the entire understandings and agreements of the parties hereto. All oral agreements prior to the effective date of this Completion Contract and which relate to this Completion Contract and the matters set forth herein are declared null and void. Any modification of this Completion Contract must be made in writing and executed by the parties hereto. 22. Interpretation. In case of conflict between any of the Contract Documents, priority of interpretation shall be in compliance in the following order: 1. Section 5, 6, 7 and 8 of the Completion Contract; 2. The Original Contract, with the priority as specified in Section 2.02 of the same; 3. CDBH Building Completion List dated July 30, 2013; 4. Completion Contract, other than those addressed in subsection (1); 5. Completion Contractors' Bid Proposal. 23. Governing Law. This Completion Contract is executed pursuant to and governed by the laws of the State of Texas. 24. Notice. Any notice required Completion Contract shall be deemed made class mail, postage prepaid, as follows: As to the Completion Contractor: Stonewall Constructors. ATTN: Jerid Colwell 13011 Mula Lane Stafford, TX 77477 As to the Surety: SureTec Insurance Company ATTN: Scott Olson 9737 Great Hills Trail, Ste. 320 Austin, TX 78759 to be made under the terms of this if either party mails such notice by first 25. Construction of Completion Contract. It is understood and agreed by the Surety and the Completion Contractor that this Completion Contract shall be construed without any regard to any presumption or other rule requiring construction against the party causing this Completion Contract, or any Exhibits attached to this Completion Contract, to be drafted. 26. Execution in Counterparts. This Completion Contract may be executed in one or more counterparts, each of which shall be deemed to be an original. IN WITNESS WHEREOF, the parties hereto have affixed their hands and seals to this Completion Contract the day and year first set forth above, and the individuals 0 who execute this Completion Contract personally represent and warrant that they have full authority to execute this Completion Contract on behalf of the respective parties. 9 COMPLETION CONTRACTOR M Name: Title: Federal Taxpayer ID # SURETY SureTec Insurance Company By: Scott Olson, Vice President 108945520347908v. 1 10 ■ Job Name: EMS & Substations CALENDER DAYS: 120 Days Location: City of Baytown Bud et:300 000 DIVISION Items Subs BID AMT. MR-on 1- UFNEt4AL CONDITIONS Pro'ect Supervision $7000.00 per m_o_nth $28.000.00 Pro'ect Management ;7,500.00 Administrative $2,000 0 Dum stern $600.00 each $1.200.00 Cell Phone I Air Card ! Computer $160.00 per month $640.00 Truck / Fuel Expenses $830.00 per month $3,320.00 Daily Clean Up at Every Site $2.500.00 Final Clean at All Locations 0.25 per SF $3,650.00 Door Frame & Hardware Sort and Log all Material on Slte 55 hr 0 1 week 400.00 Subcontractor Costs Window Com an Mark-up $17 222.00 �ai r _. _ er�GltOW ' Miami - Dade Stickers on all Windows Doors Frames roof hatches etc. $6.500-00 Need HVAC testing and balancing & reports. $3,890.00 Seal athletic floor $1,900.00 Paint concrete floor $6570.00 2nd floor - Ceiling Grid & Tile 800.00 Oc Sensors in Bedrooms Replaced $1,650.00 Support Straps 11,430.00 Replace Cracked Insulated Glass Labor Only $840.00 Replace Door Bell $950.00 Install Cord reels 7 $9,100.00 Northeast Door Rgpalr 550 -00 Sectional Door Mainlenace Weatherstr in Labor Only) $5,40U0 Fix restroom I' ht 1450.00 Bay heater maintenace Labor Only) $1,750.00 Fix Trench Drain Bolt $255.00 Replace fire extin ushier door 1750.00 Touch Up Paint CMU --$1,230-00- Install Sealant at windows $1.670,00 Intali Plaque $1.150.00 Seal Gaps in stora a room $986.00 Cable TV Face Plate $335.00 Seal Concrete in the Bay $6,700.00 1=1YI . pitiBotti rritxild.ww French Drain to Sump Pit and Sump to Street Decom osed Granite _J5,360.00 Re grade Back of building 7.500.00 Install Bollards and Paint Paint Material and Bollard Labor 5 15,400.00 Concrete Fill 4 Existing Bollards and Paint $1,350,00 New Chain Link Fence around Generator $3,670.00 Transistions to Concrete $1.090.00 Side Street to Pre-existing Conditions Picture 2 140.00 Water Meter Holds Water Electrical Onl & Piping in above $899.00 t2 air Cracked Curbs $1,476.00 Complete Curbs in Front of Bays $1.340.00 Install Liahts around flaRpole Material & Labor $2,670.00 Install Glass Jars for existing lights $483.00 Clean mortor loint at new brick locations $1,255.00 Rtf7lir ° if is " #f" i►. - s0 e =8 outfi ,Niafif . . , Clean Brick and app!y water repellant $1,850.00 Clean Plaster $1,5 8.00 Install Sealant new areas of brick $975.00 [Perp, Paint and Seal front Entrance 1 11,760.00 General Llabl% $2,836.92 Builders Risk $1.236.04 Subtotal $287,763.96 OHP 16% $43184.69 Subtotal $330,928.66 PaymenUPerformance Bond 1 $8,273.21 EXHIBIT "B" Baytown CDBG Building - Completion List 7/30/2013 Observed by Paul Bonnette, PGAL GENERAL ITEMS: - Have each Mfr. apply the Miami- Dade approval sticker to doors, frames, windows, sectional doors, roof hatches, shutters, screens, etc. - Need HVAC testing and balancing and report. - Clean up debris left at various sites. EMS Existing Building: Seal athletic flooring at Level 1 exercise area Paint existing concrete floor at Level 1 future training area Second Floor- damaged grid and ceiling tiles in areas where blue tape is still in place Occupancy sensors in bedrooms - change to switches (installed per the plans) Support strap for mechanical unit broken in the storage room, first floor of the existing building. Cracked insulating glass at the kitchen window on the second floor of the existing building. Repair / replace doorbell at existing EMS front door. EMS Addition: Building - Install cord reels in bays - one cord reel Installed, but not connected. Additional (3) cord reels missing. - Northeast door lock not functioning. - Sectional Door No. 122G has come off track twice. Needs adjustment. - Sectional doors need weatherstripping installed at jambs and head per specifications. Downstairs restroom light does not turn off. Overhead bay heaters do not turn off - they're disconnected currently. - Office stays hot- need HVAC test and balance - Broken trench drain grate in bays. - Damaged fire extinguisher cabinet door in bays. - Touch up paint where mortar drippings have been scraped from the CMU walls in bays and in restroom. - Install sealant around all windows and at masonry control joints. - Install plaque indicating CDBG funding - Seal gaps above the wall and at penetrations in the storage room, first floor of the existing building. Open junction box for cable TV in office of addition. Seal concrete in ambulance bays. Exterior - both buildings - Water pooling between buildings at decomposed granite area, and weeds growing. Questions as to whether the proper base and compaction were put down below the decomposed granite. - Improper grading at rear of building between buildings -water ponding. Bollards not Installed at exterior. Paint. Need concrete fill and paint at bollards at generator. Fence not installed around generator. Tree at street corner is dying. Need transitions to concrete driveways at rear of building, Return side street to original condition (asphalt) - Water meter vault holds water — potential installation issue. Plans indicate a drain to a gravel bed in the bottom. - Repair cracked curbs. - Complete curbs on each side of the front entry aprons. - Install light fixtures around flag pole and sign. - Install glass diffusers on lights around the exterior of the building. One on the street side of the existing EMS building has the glass lens. - Tuck point mortar and replace brick where brick was removed previously or where there are holes in the existing building exterior wall. Police Substation — 307 South Main Clean brick and apply water repellant. Clean plaster areas above and below new brick. Install sealant around new areas of brick where windows were infilied. Install sealant & each side of the new brick area at main front and back doors. Paint hollow metal doors that have been installed. Install sealant around hollow metal doors that have been installed. - One of the hollow metal doors (Door 403) is only partially installed — complete installation No windows have been installed. Police Substation — 203 East Wye Drive (Police Academy) - Shutters complete. - (1) door partially installed (Door 707.) Other doors have not been installed. Paint & seal around doors. - Generator not installed. City Jail — 3120 North Main Shutters Complete Storefront Complete Wind abatement screens not installed, but were deleted from project in Change Request No. 10. Police Substation 3200 North Main - Shutters at front entrances are complete. - Doors to mechanical room Installed (Door 112.) Need to be painted with sealant around perimeter of frame. - Remaining hollow metal doors have not been installed. Impact resistant skylights have not been installed. Some shutter modifications were made in Change Request No. 10. Some of the shutters were changed to impact resistant hollow metal doors / frames on this building. Police Substation — 3530 Market Street Paint doors, seal around perimeter of door frames, patch /repair interior and exterior areas that were disturbed by door installation. Southwest door was not installed (Not shown on plans) Shutters complete. Police Substation — 220 West Defee Street Windows not installed (not allowed by the Texas Historical Commission) Hollow metal doors not installed. Louvers not installed. Shutters installed and existing shutters modified (confirm) Impact resistant hurricane screening not installed at garage doors. This was changed to removable aluminum panels in Change Request No. 10.