The URL can be used to link to this page

Home My WebLink About1999-34 Parkland Municipal Complex Takeover Agreement RESOLUTION NO. 99-34 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF PARKLAND, FLORIDA, AUTHORIZING THE CITY OFFICIALS TO ENTER INTO A TAKEOVER AGREEMENT BETWEEN THE CITY OF PARKLAND AND RELIANCE INSURANCE COMPANY WHEREAS, the City Commission of the City of Parkland, Florida finds and determines that it is in the best interest of the citizens of the City to enter into a Takeover Agreement between Reliance Insurance Company and the City of Parkland for Completion of the Parkland Municipal Complex. NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF PARKLAND, FLORIDA: Section 1. That the appropriate City officials hereby approve entering into the Takeover Agreement between Reliance Insurance Company and the City of Parkland. Section 2. The Resolution is subject to final review and approval of document by the City Manager. Section 3. That this Resolution shall become In full force and effect immediately upon its passage and adoption. PASSED AND ADOPTED THIS 2nd DAY OF June, 1999. ~~e~ SAL l\.GLIARA, MA ATTEST: ,)U~ ~{;- HELEN LYNOTT, .M.C./;A.E. CITY CLERK CITY OF PARKLAND 6500 P ARKSIDE DRIVE PARKLAND, FL 33067 (954)753-5040 FAX (954)341-5161 VIA OVERNIGHT MAIL June 14, 1999 Ms. Nina Durante Reliance Surety Company Three Parkw~y, 9th Floor Philadelphia, Pa. 1910 I RE: The City of Parkland Takeover Aereement with Reliance Insurance Company Dear Ms. Durante: As directed by Attorney Edward J. Pozzuoli, enclosed is one executed original of the Takeover Agreement referenced above. If you need further information, please feel free to call our office. Sincerely, qM4J .',/? ~7/?[~-- Helen Lynott~~I~AE City Clerk (1) Attachment ,.. c..... CC: Harry J. Mertz, City Manager Dale Lee, Director of Building & Development Judith Kilgore, Director of Finance Edward J. Pozzuoli, Esq. .~ r' , l o o UI ..., ~ (I) I\J ~ o o ;;~ ~-1 ~~~ g 3--"'- ~_ f ~ ~ ~~ ; ~ - f:'g~~;~~ ~S rn-'Ai8:7no D~ iO ~~~g~.[g :> HiliHlfii : ~- !: (; ~ g ~ ~ ~.< imHt o[ ~ Cf ~ .... ~ - 0 ~~ _;- N ~~~;:;~~ .... ugn i!ii~ mm !'F ~~ ~!l 8~' c,~ o ~~~~~~ ~ Illl!l! l:l1::J 3 zm '''is.. ~~~-~~~~ a~~~~~=-' 0:2 g: ~!:!...., s.. ~3~6ro~C ~!~~~~~ ~!~~~~~ Q,,~~o:;;~co ~~~ ~:~~ g ~:!~~5..a 3 oeD r-C:l<'l> ~ ~~~$~Q? ~~-l~~r;;.g ! ~ 00 o o ~ ~ W w W <0 ~ ~ ~ ~ ~ '-. a~ .~ '::-- ,-. ~lr2- , ' \.'I~~" ........~') r:-+....; ~...;:: ~.."j-' .,.._':.r ......' ,-.,.:..: Hi !~~ HI ~~ ~ H! H! !2.3;;, ~~~ ~ O? "d :[!f s= ::r' -- c: 1-" ~lfs f-" "c."T1 ~. "'-01 C'D ~ "j"< Q. '" " !: \" Or-f-" g"O ~~~~. 0- ;'~ c: 0 1-" i:'~~ ~ III ~~~ [ ",,.,.,- ;II:" - - =- o z co ::.:'2 ... '2. '" ~i ~; :%l '" iil Ql III CD en .g' ::l S :; '" ~~ II ~~ ....;;. ,.~ z~ ~8 ~~ 2~ ~: o . g ; ~f ~~ < 6 ~ 0 " n ~ ~5' ~ ~~ ~ ;;c:Vl ...~ ~~ ~. ~G' f~ -~ :f ~ I'D I'D .. "d PJ .~ ~ ( .. III ')< co.. ~ c' g, '" ~ ~ :)i 0' g, ~ ~ c' g, ~ " ii> ~ ~ ir o~ *~ ~ f ~ :? ~ g ~ ~ 3 o 2:~~9 ><"'" rn (tl ~'" VI n :;:~ c.:"..- "''3-ro ::r i~ ~ ~ co I :::.:l I'D f-" 1-" III ::l (') (D en c 11 (D rt ~ n o 53 "0 III ::l ~ ~~ i6'0" g c>> o -< ;;;-~ 3 =8::J CD ~i~ a !::':oS iQ ~ I . ~O ~ [ " - ~ ~O " n L~ o ~~ ~<2: z= 3,g ro ~_ ct "'- en 0> '" en ~. ~ ::l PJ 0> ::> a. o ~ c ~ ~ PJ ::l rt I'D ::r 0> a. ~ ~ .... U:1 CO a-, ~ I ~ a-, ~ O~ . ~CJ :r :'..;? ~. (II ;g ~~ c 3-' Z a!.. ~ s:I: ~g: ~~ ~ ::l f' ~ o o ~ ~ " 9l ~ o~ g -< Cf" ~ 0 ~;~; ~. ~ . ~ ~ i~ e g g ~ - l~ - ;po o~ : i lj;i ~ ~ U 1:18 0;;:: "c U~ ~~ ~ ~<C r "'" )>- ~ *' z n 0 ~ro ;;:s- =_0' n (';w ~g ~ .,., r N 'ti w w o 0- -....J " Ql " ... Ql lC ;' lC fR i>l'tlCD ;:0 ~ 0- ~"' m ;;:;..... x !O g\)..,., r~ o CO" 0"' x~ o ..,,, c", ac. "'i:r o ~1f SOHO:J3H unOA HO~ AdOJ SIHl NIV13H { [ ~ ~ 3 f 0- CJl o o -0 ~ ::0 J=:: (f) H 1::1 m 1::1 ::0 o ~ r~ z ~ ~ (; : ~] ~ ~ -;r ;; -; ce' -:T rEi =r '" (II ... " 5, " '" "'Cl n ~~ ~':f~E ~ 0.. <=0 Ql 1111 g: ~ ~D~ o ~~ ;; ~C' ~ Cf"m - ~~ ;2 ~ ~ ~[ <:LVl ~<8 E if ~~ ;; ~i ~ ~~ n J o ....... -I -< o .,., -0 l> ::0 :;>:: r J> z o zU'> ~ ~ ~&- ~ ::c III ~ '1 ~ ~ ~ l::: ::l (D .... ~ 0> ::> a. .... '" ~ [ IJ:l Ql 0- ~ .. :l: I'D 11 rt N ~ ~ f z i ~ \b V1 ~ -..J V1 W I V1 o ~ o 10 -" ~.,..., ;r~ro O~ftl m Iii If In ':i < :::::l Q) ~ ~ rEi t.C ~ "2 ;r t'D g~ ~ ;; :2 O~' ~ .. ~P: ~ ~~ ~ Hii LO"' :[ ~~ "b . c. .. ~i:r c ~~ ~ . '" .. ;g- s ; a. Q., ~o ~ ~~ ~ -c' 6= ;:r ~ ~ I ~. f'lJ f1Jl OJ Ct-I "T1 o 3 --..J, I l t It: ~ j' ( '" en 0> '" en '" r:::-- C/~ ....... -- ,.-- -.; -..:' --. --. -- ....' I'l..) C' '-I I ....' (JI o (JI I .j:::. z"" I!~ o ~I ~g ;3 .3 if f_',~\ ''''....,5 .... ..." g.~~ (f) roc:. '""Il~::o C/).... n..... o "'C '< -~- I I I I I I I I I I I , 1 I I I I I I Ilt;'if~~~~~~~li~li; I I I I I I I I I I I I I I I ()::2 CJ a- l:-' CJ W ru l:-' CJ a- CJ c.n 00 ~3 CJ ru l::-I CJ cr.' --' 'ISCS TRIPP SCOTT ATTOI{NEYS AT LAW REI'UULlC TOWEl{, FIFTEENTH FLOOI{ 11 II SOUTHEAST SIXTH STI{EET FORT LAUIlEl{llAl.E, FLOI{IDA 3.",01 June 10, 1999 ),,0, Uox 14245 FORT LAUDERDALE, FLOIUDA 333112 TELEPHONE 954.525.751111 TELECOPIER 954,761.8475 Direct Dial: 954.760.4934 VIA OVERNIGHT MAIL Mr. Harry Mertz City Manager The City of Parkland 6500 Parkside Drive Parkland, FL 33067 Re: The City of Parkland Takeover Agreement with Reliance Insurance Company Our File No. 980541.0001 Dear Harry: Enclosed are two Takeover Agreements executed by Reliance Insurance. Please have both originals executed by appropriate City personnel. Keep one executed original for the City and return the other executed original directly to Nina Durante at Reliance Surety Company, Three Parkway, Philadelphia, PA 19102. Please provide this office with a copy of the fully executed Takeover Agreement. As always, thank you for your cooperation and support. hould you have any questions, please call. Edward 1. Pozzuoli For the Firm EJP:pcp Doc#: 183344 Ver#:1 980S41:0OO1 TAKEOVER AGREEMENT BETWEEN RELIANCE INSURANCE COMPANY AND THE CITY OF PARKLAND This is a Takeover Agreement dated June 11 , 1999, between Reliance Insurance Company (hereinafter "Surety") and the City of Parkland (hereinafter "Owner"). I. RECITALS A. On or about October 1, 1997, Owner entered into Contract (hereinafter "Contract") with Sterling Contractors, Inc. (hereinafter "Principal"). B. As required by the Contract, Surety issued Performance and Payment Bonds numbered B2728680 dated September 24, 1997 (the Performance and Payment Bonds), naming Sterling Contractors, Inc. as Principal and the city of Parkland as Obligee (hereinafter "Owner") each in the amount of $2,568,500. C. On January 19, 1999, the Principal submitted a Notice of Termination to the Owner. As a result of this Notice of Termination, the Owner made formal demand on the Performance Bond. D. As of the date ofPrinicpal's termination, work remained to be performed under the Contract (hereinafter "Remaining Work"). E. Surety has agreed to complete the Remaining Work, subject to the terms and conditions of this Agreement. Doc#: 175139 Ver#:3 980541:0001 NOW, THEREFORE, based on the exchange of valuable consideration, the receipt and sufficiency of which is acknowledged, and based on the Recitals set forth above which form a part of this Agreement, Surety and Owner agree to the following terms and conditions: II. TERMS CONDITIONS 1. Recitals. The above recitals and the terms and conditions are contractual and not merely recitals and the agreements contained herein and consideration transferred are to satisfy rights and obligations between Owner and Surety. 2. Incorporation of the Agreement. With the exception of any arbitration clauses, alternative dispute resolution provisions, or like or similar clauses, or provisions, the Contract is incorporated by reference into this Agreement, including, without limitation, the Instructions for Bidders, the Contract Terms and Conditions, the Plans or Drawings, and any Special Conditions and Specifications, and all addenda and modifications to those documents issued in accordance with the Contract. The Contract also includes, and is modified by, the approved Change Orders and backcharges 1-7 and 9 and roof slates identified in attached composite Exhibit "A." 3. The Current Estimated Agreement Amount. The Owner represents that as of the date of this Agreement, the initial Contract amount of two million, three hundred thirty-five thousand dollars ($2,335,000) has been subject to change orders in a net deductive amount of two hundred eighty nine thousand, seven hundred sixty-five dollars and seventeen cents (-$289,765.17) and an overpayment by Owner to Principal of twenty thousand, two hundred forty-eight dollars ($20,248) (excluding any claims Owner may assert against Principal and Surety arising from Principal's Doell: 175139 Ver#:3 980541:0001 -2- performance) for a current estimated Contract amount of two million, sixy five thousand, four hundred eighty-two dollars and eighty-three cents ($2,065,482.83) (hereinafter "Estimated Contract Amount"). The final amount to be paid under the Contract, and this Agreement, shall be derived based on the Owner's quantification and approval of work in place, valued at the unit and/or lump sum prices set pursuant to the requirements and procedures pursuant to the Contract. Owner represents: (i) that each of these Change Orders is in an amount previously agreed to by Principal or otherwise calculated in accordance with the Contract, and (ii) Owner represents that as of the date of this Agreement, Principal has submitted to the Owner for approval, the proposed Change Orders identified in Exhibit "B, having a total value of zero dollars ($0.00). The Owner agrees that the Estimated Agreement amount is dedicated to and will be applied to the completion of the Contract pursuant to this Agreement. Parties expressly reserve any claims of backcharges they may have against each other as well as the Principal. 4. Percentages of Completion and Prior Payments. Owner represents that, as of the date of this Agreement, Principal and/or Surety, for the account of Principal, have been paid one million, one hundred thirty-four thousand, one hundred nine dollars ($1,134,109)1 through Payment Requisition No.8 under the Contract, and that the Owner is presently holding accrued retainage of one hundred three thousand, five hundred fourteen dollars ($103,514.00) under the Contract through Payment Requisition No.8. Final payment, including the payment of all retainage accrued after execution of the Takeover Agreement pursuant to the Contract, shall be subject to the Owner's final 1 The amount paid to date of one million, one hundred thirty four thousand, one hundred nine dollars ($1,134,109) under the Contract includes zero dollars ($0.00) for stored materials. Doc#: 175139Ver#:3 980541:0001 -3- quantification and approval of the work provided under the Contract and satisfaction of all other contractual requirements imposed by the Agreement as a condition precedent to such final payment. 5. Liens and Assignments Against Agreement Funds. Owner represents that as of the date of this Agreement, the claim notices, mechanic's liens, assignments or encumbrances against the Contract Funds identified in Exhibit "c" have been filed with, or served upon Owner in connection with the Contract. Owner represents that it is not aware of any other claim notices, mechanic's liens, other liens, assignments or encumbrances (hereinafter "Contract Fund Creditors") against the Contract Funds in connection with the Contract. Surety shall defend (at Surety's expense, using counsel), indemnify and hold harmless Owner and all of its agents, employees and officials from and against any and all claims of every description made by the Contract Fund Creditors arising as a consequence of payments made to Surety under this Agreement. The Surety's defense and indemnity obligations to the Owner for claims by Contract Fund Creditors shall be limited to the lesser of: (i) the total amount paid by the Owner to the Surety and the Principal pursuant to this Agreement, or (ii) the penal amount of the Payment Bond. 6. Surety to Perform Remaining Work. Surety shall be responsible for the completion of the Remaining Work. Surety shall perform the Remaining Work through one or more Completing Contractors (hereinafter "Completing Contractor") which it shall engage. All Completing Contractors shall be subject to the qualification requirements of the Owner imposed by the Contract for those entities performing the type or work contemplated by the Contract. 7. Owner's Obligations Under the Agreement. Except to the extent provided in this Agreement, Owner shall have all rights, obligations and responsibilities under the Contract with Doc:#: 175139 Ver#:3 980541:0001 -4- respect to Surety, to the same extent and effect as if Surety had executed the Contract initially instead of Principal and Principal had not defaulted. 8. Owner's Right With Respect to Changes in the Work. Owner reserves the right, to the extent appropriate under the Contract, to issue further Change Orders. The terms of these Change Orders, including the attendant extensions of time and valuation of the Change Order work, shall be determined as provided in the Contract. As provided in the Contract, Surety reserves the right to refuse to perform any extra or additional work if such work constitutes alone, or in the aggregate with all prior Change Order work, a cardinal change under the Contract. Further, in the event the Owner seeks the performance of additional work which is not subject to valuation by application of the unit and/or lump sum prices set under the Contract, it shall negotiate the appropriate value for such work with Surety. 9. Schedule for Completion of Remaining Work and New Completion Date. Surety, through its Completing Contractor or Contractors, will coordinate and cooperate with Owner in formulating a schedule for the completion of the Remaining Work. Further, without waiving any rights and with an express reservation of said rights to bring claims against Principal and Surety, Owner agrees: (i) to grant to Surety the full benefit of whatever extensions of time and other associated relief, including for excusable delays, that are appropriate under the Contract, and (ii) hereby extends the original Completion Date set forth in the Contract to November 30, 1999. 10. Completing Contractors. Each Completing Contractor shall be a subcontractor to Surety, and no contractual relationship, pursuant to this Agreement, shall exist between Owner and any Completing Contractor. Each Completing Contractor shall provide all insurances required under Doell: 175139 VerII:3 980541:0001 -5- the Subcontract, but shall not be required to provide Payment and/or Performance Bonds, unless requested to do so by Surety. Surety reserves the right to terminate its Contract with a Completing Contractor at any time, upon ten (10) days' prior written notice to Owner and to contract with another Completing Contractor. Routine day-to-day operations and decisions as to the manner of performance of the Remaining Work shall be made by the Completing Contractors, subject to the terms and conditions of the Contract, provided, however, that the Completing Contractors have no authority to (i) agree to any changes in the Contract or Remaining Work; (ii) agree to any Change Orders; (iii) agree to any backcharges or deductions of any nature; (iv) agree to any schedule changes; (v) agree to any adjustments in the Contract amount or Remaining Work; or (vi) agree to perform warranty work of the Principal or corrective work as a result of latent defect(s) in the work performed by the Principal, without the Surety's prior written consent which shall be delivered to Owner as a condition precedent to the Completing Contractor(s) negotiating items (i) through (vi). The Remaining Work shall be subject to inspection and acceptance by the Owner, as provided in the Contract. A copy of all written communication by Owner directed to a Completing Contractor shall be forwarded to Surety on a current basis by telecopier. All communications concerning matters of contract administration (i.e., contractual or other notices required by law, payments, Change Orders, extensions of time, delays, claims, among other matters) shall be communicated to a Completing Contractor only in writing, with a copy forwarded to Surety on a current basis by telecopier. 11. Payments to Surety, Release of Bond upon Exhaustion of Performance Bond's Penal Amount and Assignment of Completion Contract. The Estimated Contract Amount shall be paid Doc#: 175139 Ver#:3 980541:0001 -6- to Surety in accordance with the Contract as it completes the Remaining Work: (i) in periodic, monthly payments, based on the value of the work in place, or stored, calculated in accordance with the unit and lump sum prices set under the Contract, less retainage withheld in accordance with the Contract; and (ii) in a final payment once the Remaining Work is entirely complete, based on the Owner's final review, quantification and acceptance of the Remaining Work, valued in accordance with the unit and lump sum prices set under the Contract, and in satisfaction of all other conditions precedent established under the Contract for final payment. Surety agrees to expend such of its own funds as may, from time to time, be necessary to pay for completion of the Remaining Work provided, however, that Surety's performance obligation, over and above the amount paid by the Owner and received by the surety under this Agreement, shall, in no event, exceed, and it is hereby expressly limited to, the expenditure of the penal amount of the Performance Bond ($2,568,500), as reduced by all amounts expended by Surety including, but not limited to, all expenditures made to complete the Remaining Work, or to defend, adjust and satisfy all claims under the Performance Bond. For each dollar the Surety so expends pursuant to the Performance Bond, the Surety shall receive a corresponding dollar for dollar reduction in the penal amount of the Performance Bond. The Owner will remain obligated to pay Surety all outstanding amounts due under the Contract, or this Agreement, including retention. As of the date of full execution of this Agreement, Surety represents nothing in this Agreement constitutes a waiver of such penal amount or an increase in the liability of the Surety under the Performance Bond. 12. Paynlent Bond and Paynlent Bond Claims. The Payment Bond shall remain in full force and effect in accordance with its terms and provisions. As of May 13, 1999, Surety represents that Doell: 175139 VerlI:3 980541:0001 -7- it has expended an amount not exceeding one hundred twenty three thousand, seven hundred sixty two dollars ($123,762). Surety agrees to investigate all proper payment claims made against it, but shall have the right to settle, compromise, defend, appeal, payor dispute such claims as it, in its sole and complete discretion, may deem appropriate. Nothing in this Agreement constitutes a waiver of such penal amount or an increase in the liability ofthe Surety under the Payment Bond. 13. Payment Requisitions. Surety, through its Completing Contractor or Contractors, shall submit to Owner whatever information or documentation is required regarding the work performed under the Contract, and stored materials, to conform to and support the requisition process and schedule established under the Contract. Owner recognizes that Surety shall be completing the Remaining Work through the services of one or more Completing Contractors. Accordingly, Owner shall accept the Completing Contractors' representations and certifications with respect to all aspects of the work, progress of the work, quality of the work, conformance of the work to the requirements of the Contract, payment to others, warranty and maintenance of the work, and all other matters pertinent to the Contract, wherever such representations are required by the Contract, as if those representations had been made by Surety, since Surety may have no personal knowledge of such matters. The Surety and Owner, for purposes herein, acknowledge and recognize the Completing Contractors as a Construction Manager of the Surety. 14. Completing Contractor Claims. The Owner agrees that Completing Contractor may pursue any claims it may have on behalf of the Surety against the Owner, to seek recovery from the Owner for all costs and damages arising out of, related to or associated with any act, action, inaction, Doc:II: 175139 VerII:3 980541:0001 -8- direction or order, constructive or otherwise, of the Owner or its agents, including but not limited to, claims for extra work, delays, accelerations or disruptions. 15. No Offsets Against Payments to Surety. All monies due, and to become due, pursuant to the Contract and this Agreement, including, without limitation, progress payments, payments for extra work or additional work orders, retention and final payment, for work on behalf of Surety by its Completing Contractors, shall be made to Surety pursuant to the Contract. Further, Owner shall not withhold payments to Surety based on a prior failure of Principal to provide Owner with any certificates or representations required under the Contract. All payments shall be made directly to Surety by check payable to Surety, at the address stated in paragraph 17 of this Agreement. 16. Satisfaction of Surety's Performance Obligation. The remaining work to be performed and the expenditure by Surety shall be subject to paragraph 11 herein. Owner represents that Principal would have been required to complete all of its obligations under the Contract had it not been in default and that, prior to the date of this Agreement, Owner had not made any agreement with Principal that any item of work included in the Contract would not have to be performed, except to the extent provided in the approved Change Orders identified in attached "Exhibit A". 17. Notices. All notices and correspondence to Owner shall be mailed certified mail, return receipt requested, with a copy by telecopier, to: A TTN: Mr. Edward J. Pozzuoli Tripp Scott 110 S.E. Sixth Street, 15th Floor Fort Lauderdale, Florida 33310 Facsimile Number (954) 761-8475 Dod/: 175139 Verll:3 980541:0001 -9- All notices and correspondence to Surety shall be mailed certified mail, return receipt requested, with a copy by telecopier to: A TTN: Nina M. Durante, Senior Bond Claim Attorney Reliance Insurance Company Bond Claims Dept. - 9th Floor Three Parkway Philadelphia, Pennsylvania 19102 Facsimile Number (215) 864-1010 18. No Third-Party Rights. Nothing in this Agreement shall be deemed to create any rights in favor of, or to insure to the benefit of, any third party or parties, or to waive or release any defense or limitation against third party claims. 19. All Claims Referred to Surety. Owner recognizes that Surety may be liable to unpaid suppliers and subcontractors of Principal. Owner agrees to make no representations or promises of payment to these suppliers and subcentraetors and to refer all inquiries to Surety. 20. Surety's Performance Rights Confirmed. Nothing shall limit Surety's rights as a Completing Surety under this Agreement and applicable law. Owner hereby recognizes those rights, including the right of equitable subrogation which affords to Surety all rights and remedies of Owner against Principal, such as offset, and withholding, among others. Further, Owner also recognizes Surety's other subrogation rights as a performing Surety under the Contract, including the right to additional compensation or damages where allowed or appropriate under the Contract or applicable law for claims or matters arising after the date of this Agreement. The Owner expressly agrees and acknowledges: (i) that Surety is entering into this Agreement not as a contractor, but as a means of satisfying the Surety's performance bond obligations; (ii) that the Surety has provided to Owner the Doc#: 175139 Vert:3 980541:0001 -10- Completing Contractor, a fully licensed contractor, to finish the project; and (iii) that the Owner hereby forever releases and discharges any and all claims that the Surety is an unlicensed contractor. 21. Full Mutual and Specific Reservation Clause. Neither this Agreement nor any provision hereof shall be deemed or construed to be an admission or concession of liability of any kind or nature by Principal, Surety or the Owner or a waiver of: (i) any of the rights or claims or Principal or Surety in relation to the Bonds or Contract including, but not limited to, the claim that the Owner prejudiced Surety by over payments to the Principal, the claim that the Owner prejudiced Surety by not mitigating Surety's damages, the Principal's claims for pending change orders, extensions of time, delays, disruptions, acceleration, or wrongful termination; or (ii) of any rights or claims of the Owner in the Contract, including, but not limited to, the Owner's claim for liquidated damages and back charges, all of which rights and claims Principal, Surety and the Owner specifically reserve, it being the understanding and intention of the parties that any claims or contentions which may have been made or which may be made in relation to the Contract including alleged breaches thereofby Principal on the one hand, and the Owner on the other, are in no way affected by this Agreement, and that in entering into this Agreement the parties recognize that any and all rights or claims which Principal or Surety may believe themselves to have against the Owner or the Owner may believe itself to have against Principal or Surety in relation to the Contract are in no way impaired or reduced by this Agreement and are fully reserved. Notwithstanding these potential defenses and claims, however, and in the interest of expediting the completion of the Project to minimize the damages of the ultimately responsible parties, Surety has agreed to complete the Remaining Work, subject to Doell: 17SI39Ver#:3 980S41:0001 -11- this mutual reservation of all rights, and to the tenns and conditions of the Contract and of this Agreement. 22. Limited Reservation for Liquidated Damages/General Reservation for Principals' Default or Rights. (1) The Owner agrees that it shall not assess any liquidated damages against progress payments due to the Surety under this Agreement, for the period from the Contract termination to November 30, 1999 (except as provided below). The Owner reserves the right to assess liquidated damages for the period from the original completion date to the Contract completion. However, the Owner may hold a maximum of one hundred fifty thousand dollars ($150,000) ($103,514 which Owner is currently holding as retainage on progress payments made to the Principal {Sterling} and an additional $46,486 which is projected to be retained from progress payments subsequent to this Takeover Agreement). Notwithstanding the above, the parties reserve all rights to pursue any and all claims against each other and the Principal. Said claims include, but are not limited to, claims for additional liquidated damages and the return of monies being held as liquidated damages. Additionally, ifthe project is not substantially completed on November 30, 1999, the Owner may assess additional liquidated damages for the period thereafter from retainage or/from progress payments earned subsequent to this Takeover Agreement. (2) Owner contends that the Agreement is substantially past the time for completion and liquidated damages may be assessable at the conclusion of this Project. By execution of this Agreement, Surety does not waive any rights either it or its Principal may have to contest the Doc:II: 17S139 VerII:3 980S41:oool -12- propriety of the assessment of liquidated damages. Owner, by execution of this Agreement, does not waive any rights it may have to assess liquidated damages against the Contract balance. (3) By execution of this Agreement, Surety does not (i) waive Principal's rights, if any, to contest the validity of the default or any other rights or claims the Principal may have; or (ii) waive any defenses or claims under its Bonds, including, but not limited to, overpayment of contract funds to the Principal. Owner likewise reserves all rights it may have against Principal or Surety. 23. Limited Assumption of Agreement by Surety. The Surety hereby undertakes to cause the performance of each and every one of the terms, covenants and conditions of the Contract, including all modifications thereto, and agrees to be bound by the Contract. The Owner acknowledges that the Surety, by its execution of this Agreement, is acting in its capacity as the Surety for the Principal in making arrangements for the performance and completion of the Contract pursuant to the Performance Bond, Payment Bond and this Agreement. As to the completion of the Contract, except as otherwise provided in this Agreement, the Surety is entitled to all rights, title and interest of the Principal in and to the Contract. The term "Contractor" as used in the Contract shall I be deemed, after the effective date of this Agreement, to refer to the Surety rather than to the Principal. 24. Contract Balance Amount Reservations. As of the date of the execution of this Agreement, the Owner represents and warrants, that according to the records available to it, the Estimated Contract Amount as defined herein is accurate. The Surety serves the right to verify the accuracy of the Contract Balance. The Surety's sole remedy against the Owner for breach of this representation and warranty is reformation of the Estimated Contract Amount to the proper amount. Doc#: 175139 VerII:3 980541:0001 -13- 25. Agreement Binding on Successors. This Agreement shall be binding upon the successors and assignees of Surety and Owner. 26. No Modification Except in Writing. This Agreement cannot be modified except in a writing signed by both Owner and Surety. 27. This Agreement Controls. In case of conflict between the provisions of ~s Takeover Agreement and the provisions of the Contract and/or Performance Bond and/or Payment Bond, then Contract and/or Performance Bond and/or Payment Bond shall control. Further, this Takeover Agreement, the Contract and the Performance Bond constitute the entire Agreement between Owner and Surety, and, together, supersede all prior negotiations, representations, offers, other writings and oral statements of every description. 28. Florida Law Applies and Dispute Resolution. This Agreement and the performance under this Agreement, shall be governed by, and construed in accordance with, the laws of the State of Florida and that, in any suit, action, or proceeding that may be brought arising out of, in connection with, or by reason of this Agreement, the laws of the State of Florida shall be applicable and shall govern to the exclusion of the law of any other forum, without regard to the jurisdiction in which any suit, action, or proceeding may be instituted. The Surety and Owner agree that any dispute arising out of, or related to this Agreement, shall be resolved by litigation. 29. No Waiver. The failure of either party to exercise in any respect a right provided for in this Agreement shall not be deemed to be a subsequent waiver of the same right or of any other right. 30. Counterparts. This Agreement may be executed in any number of counterparts each of which when executed and delivered shall be deemed to be an original with all counterparts Doc#: 175139 Ver#:3 98054\:000 1 -14- constituting but one and the same instrument. The execution of this Agreement by any parties hereto will not become effective until counterparts hereof have been executed by all parties. 31. Construction. The Owner and Surety have been represented by counsel who has materially participated in the authorship of this Agreement, it being understood that the rule of construction that a written agreement is construed against the party drafting or preparing such agreement, shall specifically not be applicable to the interpretation of this Agreement. WHEREFORE, Surety and Owner have executed this Agreement by their authorized representatives. DATED: June 11, 1999 CITY OF PARKLAND By: ~~ Its and lawfully authorized representative. DATED:tt. mlj RELIANCE INSURANCE COMPANY Doc:iI: 175139 VerI/:J 980541:000 I -15-