HomeMy WebLinkAboutBond Safeguard Insurance Company 9-12-12 ••. rti
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COMPLETION AGREEMENT
THIS COMPLETION G REEM NT hereinafter the "Agreement ") is made and
entered into as of the /a ay o _'. 200iy and between Bond Safeguard
Insurance Company (hereinafter the ".urety", and The City of Jeffersonville, IN
(hereinafter the "City").
WITNESSETH
WHEREAS, 21 Century Developers, Inc. (hereinafter "Developer"), entered into
a Performance Agreement (hereinafter the "Development Agreement ") with Clark
County, Indiana to perform certain construction work in a project known as Whispering
Oaks Subdivision, (hereinafter the "Project "); and
WHEREAS, three Subdivision Performance Bonds (hereinafter the "Bonds "),
were issued by the Surety in connection with the Project and described as follows:
a. Subdivision Performance Bond No 5004160 in the amount of $14,481.60
on Whispering Oaks, Section 3 with such Bond issued to the Board of Commissioners
of Clark County, Indiana as Obligee;
b. Subdivision Performance Bond No 5009190 in the amount of
$438,756.00 on Whispering Oaks Subdivision, Phase II, Section 3 with such Bond
issued to the Board of Commissioners of Clark County, Indiana as Obligee;
c. Subdivision Performance Bond No 5032733 in the amount of $18,166.00
on Whispering Oaks II with such Bond issued to the City of Jeffersonville, Indiana as
Obligee;
WHEREAS, the Obligees for Bonds 5004160 and 50019190 were amended by
, Indiana
Rider changing the Obligee from the Board of Commissioners of Clark County,
to the City of Jeffersonville, Indiana;
WHEREAS, the penal sum of Bond 5009190 was reduced by Rider from
$438,756.00 to the penal sum of $87,800.00 on July 14, 2005;
WHEREAS, the penal sum of Bond 5032733 was increased by Rider from
$18,166.00 to the penal sum of $23,000.00;
WHEREAS, the Developer failed to complete the Project and on or about
November 15, 2011, the City, as Obligee, held the Developer in default on the Project
and demanded that the Surety complete the Project in repairing curbs and applying the .
top layer of asphalt;
WHEREAS, the Surety has obtained a quotation from Mark Guthrie Construction
(hereinafter known as "Completion Contractor") to complete the Project and desires to
complete the Project, and the City hereby accepts the Completion Contractor to
complete the Project; and
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WHEREAS, the Parties desire to enter into this Agreement for the purpose of
resolving any and all claims related to and /or under the Bonds.
NOW, THEREFORE, in consideration of the promises and covenants contained
herein, and for other good and valuable consideration, the parties hereto agree as
follows:
1. The City acknowledges that it has reviewed the qualifications of the
Completion Contractor and has satisfied itself that Completion Contractor is capable of
competently performing the Project.
2. The Surety will enter into a construction contract for the completion of the
Project directly with the Completion Contractor (hereinafter the "Agreement for
Construction Work "), such contract to include the scope of work attached as Exhibit "A ",
in the amount of $100,500.00 plus additional amounts for surface asphalt if the quantity
exceeds the sum of 1350 tons so long as the amounts for the additional quantities do
not exceed the total of the penal sums of the Bonds. The Surety will be solely
responsible for the cost for completing the work as described in the estimate attached
hereto as Exhibit "A" without contribution by the City.
3. The City agrees as to the scope of work that is contained in Exhibit "A"
and to conduct an inspection of the work covered by this Agreement as soon as
possible after being notified of the completion of the scope of work. The City shall
provide, in writing, its acceptance of the work or provide that the work performed is
unacceptable.
4. Upon completion of the scope of work, or the expenditure by the Surety of
the penal sums of the Bonds, the surety shall be entitled to a full and complete release
of the Bonds listed above; the City agrees to return the original Bonds enumerated
above; and, the City shall release, acquit and forever discharge the Surety, its
successors and assigns from any and all claims, demands, causes of action, liabilities,
damages, including attorney's fees, arising out of or related to the Bonds issued for the
Project.
5. The City agrees that notwithstanding anything herein to the contrary, the
liability of the Surety under the Bonds is limited to the respective penal sums of the
Bonds as set forth above and nothing in this Agreement constitutes a waiver of such
penal sums or an increase of the Surety's liability or responsibilities under the Bonds. All
payments made by the Surety to the Completion Contractor as provided for in this
Agreement shall serve to reduce the penal sum of the Bonds set forth above and the
Surety's liability thereunder.
6. In exchange of the consideration listed above, the City hereby sells,
assigns, transfers and sets over unto the Surety, its successors and assigns, any and
all claims, demands, causes of actions, damages, including attorney's fees that it may
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have against the Developer arising out of, as a result of and /or on the basis of the
default and breach by the Developer as covered by this Agreement.
7. If any provision of this Agreement is held to be illegal, invalid, or
unenforceable under any present or future laws, such provision shall be fully severable,
and the remainder of this Agreement shall continue in full force and effect. In lieu of any
severed provision, there shall be added a provision with terms and effect as similar as
possible to such illegal, and invalid, or unenforceable provision as may be possible, and
legal, valid, and enforceable.
8. Neither this Agreement, nor any y provision hereof, may be waived,
modified, amended, discharged, or terminated, except by written instrument signed by
the party against whom the enforcement of such waiver, modification, amendment,
discharge, or termination is sought, and then only to the extent set forth in such
instrument. It is acknowledged that no contractual relationship exists between the
Completion Contractor and the City with regards to the work. In this regard, the Surety
and the City agree that any change orders or directions from the City that would have
the effect of (1) increasing the cost of performance; (2) increasing the scope of work in
Exhibit "A "; or (3) changing the scope or manner of performance, shall not be allowed or
binding on the Completion Contractor or the Surety unless the direction is in writing and
signed by an officer of the City with sufficient authority and agreed to by the Surety.
9. This Agreement is the only agreement between the parties with respect to
the subject matter hereof and contains all of the terms agreed upon; and there are no
other representations or agreements, oral or written, between the parties with respect to
the subject matter hereof, nor have any factual, legal, or other
J y g promises or
representations been made by or to any y y party to induce any other party to execute this
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Agreement, except those expressly set forth herein. Each party stipulates and agrees
that if the facts or law with respect to which this Agreement is executed are, or may be
found hereafter to be, other than or different from the facts or law in that connection now
believed by such party to be true, such party expressly accepts and assumes the risk of
such possible difference and agrees that the provisions of this Agreement shall be and
remain effective notwithstanding any such difference.
10. This Agreement may be executed in counterparts. Signatures transmitted
by facsimile or electronic mail shall have the same legal effect as original signatures.
11. The City and Surety agree that no third party shall have any rights under
this Agreement.
12. This Agreement shall be governed and controlled by the laws of the State
of Indiana.
13. Each party warrants and represents to the other party that: (a) such party
has been fully informed of and has full knowledge of the terms and contents of this
Agreement; (b) such party has received the counsel and assistance of such party's
attorneys with respect to all aspects of this Agreement, including, but not limited to, the
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terms, contents, and consequences of this Agreement; and (c) such party has executed
this Agreement, or has caused this Agreement to be duly and properly executed by his
or its authorized officers and /or representatives, as the party's own free and voluntary
act, with the intention to be bound hereby.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
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CITY OF JEFF, ' ' NVILL , INDIANA
By: IP (SEAL)
Print Name: M _ Ms
Print Title:
STATE OF
COUNTY OF ekf
I, ' 0 o , a Notary Public of the County and State
and aforesaid, certify that M , \; \A o -- personally appeared before meths day
acknowledged that she /he is the �;��� of-"a ghat by
authority duly given and as the act of.the corporation, the foregoing instrument was signed
by him /her as its C r .
Witness my hand and notarial seal this L- -
day of i\c0 , 20
Notary Public
My Commission Expires: Q, V)-
(Remainder of this page intentionally left blank)
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BOND SAFEGUARD INSURANCE COMPANY
By: "ATI SEAL
Print ,. - - -, 44.
Print Title: /4'1 ' 5e;
STATE OF
fi
COUNTY OF L,J,.L,,,,
I, -k"s&■. , a Notary ublic of the County ty and State
aforesaid, certify that S- k-v *, aoss personally appeared me this day
and acknowledged that she /he is theNsk .VP o-Suac ku, i s o ' and that by
authority duly given and as the act ofiko the foregoing instrument was signed by
him /her as its
Witness my hand and notarial seal this \A day of letaix610 , 20 L1
•` BAT. .
Notary Public •` "....,•sp2
•• STATE •
OF
My Commission Expires: 3., a„O 13 _ I T ENNESSEE '
NOTARY
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