First United-CS000215COPPELL, TEXAS 75019
RO. Box 478
Coppell, Texas 75019
972-462-0022
February 15, 2000
Lynne Johnson
First United Methodist Church
420 S. Heartz Road
Coppell, TX 75019
RE: First United Methodist Church
Final Acceptance
Dear Ms. Johnson:
A final inspection of paving and utilities for the referenced project has been confirmed by
representatives of the City of Coppell.
The two-year maintenance bonds and as-built drawings have been received from the contractor.
Maturity on the bonds will be two years from the date of this letter. Maturity on the Erosion
Control Bond will also be two years from the date of this letter.
Sincerel ,
Construction Inspector
CC:
Mike Martin, Assistant City Engineer
Debi Ingrain, Engineering Secretary
Glenn Hollowell, Director of Public Works
Greg Jones, Chief Building Official
Travis Crump, Fire Marshal
H J McCullough, MC2 (fax: 972-304-5228)
(;'>-, :,, -.[iOi'O1 :](J,~
BOND NO. 929138870
CNA INSURANCE COMPANIES
MAINTENANCE BOND
KNOW ALL MEN BY THESE PRESENTS, That we OFFUTT CONSTRUCTION
as Principal, and CONTINENTAL CASUALTY COMPANY
and firmly bound unto CITY OF COPPELL
, as Surety, are held
as Obligee, in the penal sum of TWENTY FIVE THOUSAND FIVE HUNDRED AND NO/100 ........
........................................................... ($ 25,500.00 )
to which payment well and truly to be made we do bind ourselves, our and each of our heirs,
executors, administrators, successors and assigns jointly and severally, firmly by these presents.
WHEREAS, the said Principal entered into a contract with the FTRRT ~'TNTTET) METHODIST CHURCH
COPPELL, TEXAS dated SEPTEMBER 2, 1998
for OFFSITE UTILITY WORK - FIRST UNITED METHODIST CHURCH COPPELL, TEXAS
WHEREAS, said contract provides that the Principal will furnish a bond conditioned to guarantee for
the period of TWO year(s) after approval of the final estimate on said job, by the owner, against
all defects in workmanship and materials whiqh may become apparent during said period, and
WHEREAS, the said contract has been completed, and was approved on
day of JANUARY ~2000.
18TH
NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH that, if the Principal shall indemnify
the Obligee for all loss that the Obligee may sustain by reason of any defective materials or
workmanship which become apparent during the period of TWn year(s) from and after __
JANUARY 18, 2000 then this obligation shall be void, otherwise to remain in full force
and effect.
SIGNED, SEALED AND DATED
FEBRUARY 2, 2000
Form G-23210-A
CONSTRUCTiON_By:COntinental Casualty Co.
OFFUTT
(L.S.)
CP~Nt~;NEL~AL CASUALTY COMPANY
POWER OF ATTORNEY APPOINTING INDIVIDUAL ATTORNEY-IN-FACT
Know All Men By These Presents, That CONTINENTAL CASUALTY COMPANY, an Illinois corporation, NATIONAL FIRE INSURANCE
COMPANY OF HARTFORD, a Connecticut corporation, AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA, a Pennsylvania
corporation (herein collectively called "the CCC Surety Companies"), are duly organized and existing corporations having their principal offices in
the City of Chicago, and State of Illinois, and that they do by virtue of the signature and seals herein affixed hereby make, constitute and appoint
Howard Cowan, Mike Henthom, Ron Stroman, Carla Rogers, Pete Bin~leli, Kevin J. Dunn, Angle Goff, Maria Hill, Individually'
of Lubbock, Texas
their true and lawful Attorney(s)-in-Fact with full power and authority hereby conferred to sign, seal and execute for and on their behalf bonds,
undertakings and other obligatory instruments of similar nature
- In Unlimited Amounts -
and to bind them thereby as fully and to the same extent as ~f such instruments were signed by a duly authorized officer of their corporations and
all the acts of said Attomey, p_ursuant to the authority hereby given are hereby ratified and confirmed.
This Power of Attorney is made and executed pursuant to and by authority of the By-Laws and Resolutions, printed on the reverse hereof,
duly adopted, as indicated, by the Boards of Directors of the corporations.
In Witness Whereof, the CCC Surety Companies have caused these presents to be signed by their Group Vice President and their
corporate seals TO be hereto affixed on this 30t~ day of March 1998
AMERICAN CASUALTY C,OMPANY OF READING, PENNSYLVANIA
Marvin J. Cashion Group Vice President
State of Illinois, County of Cook, ss:
On this 30th day of March , 1998 , before me personally came
Marvin J. Cashion, TO me known, who, being by me duly sworn, did depose and say: that he resides in the City of Chicago, Stats of Illinois; that
he is a Group Vice President of CONTINENTAL CASUALTY COMPANY, NATIONAL FIRE INSURANCE COMPANY OF HARTFORD, and
AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA described in and which executed the above ins~ument, that he knows the
seals of said corporations; that the seals affixed to the said instrument are such corporate seals; that they were so affixed pursuant to authority
given by the Boards of Directors of said corporations and that he signed his name thereto pursuant to like authority, and acknowledges same TO
be the act and deed of said corporations.
My Commission Expires March 6, 2000
Mary Jo Abel Notary Public
CERTIFICATE
I, Mary A, Ribikawskis, Assistant Secretary of CONTINENTAL CASUALTY COMPANY, NATIONAL FIRE INSURANCE COMPANY OF
HARTFORD, and AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA do hereby certify that the Power of Attorney herein
above set forth is still in force, and further certify that the By-Law and Resolution of the Board of Directors of each corporation printed on the
reverse hereof ars still in force. In testimony whereof ~ have hereunto subscribed my name and affixed the seals of the said corporations
this 2ND dayof FEBRUARY 2000 .
NATIONAL FIRE INSURANCE COMPANY OF HARTFORD
AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA
Mary A. Ribikawskis Assistant Secretary
(Rev. 10/1/97)
LINDA PEOPLES
FIRST UNI?ED METHODIST COURCH
420 SOUTH HEARTZ
COPPELL TX 75019
CCU, GOA-RMJ
I N C Q R P O R A T E D
NATIONWIDE NETWORK OF FORMER F~[ AGENTS
Statement Date
12/07/1999
T519 Page 1
Invoice# Inv Date Iov Amt Prior gal Late Chgs Ami Due
98008206 10/26/1999 510.00 SlO,O0 0.00 510.00
98008230 11/02/1999 1666.00 [666.00 0.00 t666.00
98008259 ll/09/1999 1666.00 1666.00 0.00 I666.00
98008283 1i/15/I999 1683.00 I683.00 0,00 t683.00
98008302 11/23/]999 1496.00 I496,00 0.00 1496,00
Total Amount Due 7021.00
/
Corporate O~'tce · 8585 N. Stemmons Freeway, Suite M-24 · Dallas, Texas 75247
(2141 637-6411) · t214) 637-1443 FAX · Toll Free (877) 295-0053
FORD
WHITE
WIELINSKI
SALAZAR
Dtrect Dial (214) 523-5134
E-Mail ghvhite,~yws.com
December 22, 1999
Mr. Paul Eaves
Universal Surety of America/Western Surety Company
950 Echo Lane, Suite 250
Houston, Texas 77024
Re:
Surety:
Principal:
Bond No.:
Penal Sum:
Claim No.:
Obligee:
Project:
Continental Casualty Company
Offutt Construction, Inc.
190437555
$3,171,653.00
96119867
First United Methodist Church, Coppell, Texas
An Addition to First United Methodist Church, Coppell, Texas
Dear Paul:
Enclosed please find a fully executed original of the Takeover Agreement ~ith regard to the above-
referenced matter. I have maintained a copy of the Takeover Agreement in my file. Please feel free
to call me if you have any questions.
Yours very truly,
GLW:cob
Enclosure
21701 / 883.002
l tO0 H~xh'~tml P~ttl: Pht~c 4514 Cote A~tmc Dd[[tt~ T~x~t$ 75205
TAKEOVER AGREEMENT
This Takeover Agreement (the "Agreement") is made and entered into as of this 10th day of
December, 1999, by and between Continental Casualty Company (the "Surety") and First United
Methodist Church, Coppell, Texas (the "Obligee").
RECITALS:
WHEREAS, on or about September 2, 1998, Offutt Construction (the "Principal") and the
Obligee entered into a contract (the "Original Contract") for the Principal to furnish all labor and
material and perform all work for an addition to First United Methodist Church, Coppell, Texas (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, on or about September 17, 1998, as required by the terms of the Original Contract,
the Principal and the Surety made, executed and delivered to the Obligee a Performance Bond and a
Payment Bond, Bond No. 190437555 (collectively, the "Bonds"), both in the penal sum of
$3,171,653.00; and
WHEREAS, on or about October 25, I999, Obligee declared the Principal in default in the
performance of the Original Contract and terminated the Principal's right to proceed thereunder, and the
Obligee has called upon the Surety to fulfill its obligations as surety under the terms of the Performance
Bond; and
WHEREAS, the Surety is willing to undertake the completion of the Original Contract in
accordance with the terms of the Performance Bond and this Agreement provided that in doing so it will
receive the entire Contract Balance hereinafter defined as set forth below.
NOW, THEREFORE, in consideration of the agreements and undelXal~ihgs hereinafter set forth,
and for other good and valuable consideration, the receipt and adequacy therefor being hereby
acknowledged, the Obligee and the Surety agree as follows:
AGREEMENTS:
Tne Surety hereby undertakes to cause the performance of the terms, covenants and conditions
of the Original Contract, including all modifications thereto, and agrees to be bound by the
Original Contract. The Obligee 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 Original Contract, and not as a completing contractor,
and that the Surety is not assuming any obligations or liabilities beyond those set forth in the
Bonds. In no event can the Surety's obligation or loss exceed the penal sum of the Bond. As to
the completion of the Original Contract, except as otherwise provided in this Agreement, the
TAKEOVER AGREEMENT - Page 1
Surety is entitled to all rights, title and interest of the Principal in and to the Original Contract in
all respects as if the Surety were the original party to the Original Contract.
The Obligee acknowledges that the Surety will subcontract the performance of the ~vork under
the Original Contract to a completion contractor (the "Completion Contractor"). The Surety
shall satisfy the required insurance obligations under the Original Contract by providing
evidence of the required insurance coverage carried by the Completion Contractor, with the
Surety being named as an additional insured under the policy or policies.
3. The Obligee and the Surety agree that as of the date of this Agreement:
(a)
The authorized amount of the Original Contract, including all approved change orders,
is the sum of $3,445,777.86;
(b)
As of the date of this Agreement, the Obligee has paid under the original contract,
including ail approved change orders, the sum of $2,826,274.00;
(c)
It is agreed that the sum of $13,421.00 is deducted fi.om the contract amount as the totai
amount of damages suffered by the Obligee as a result of the default of Principai;
(d)
The Obligee is holding the sum of $606,082.86 as the remaining balance on the Original
Contract (the "Contract Balance");
(e)
As of the date of the execution of this Agreement, the Obligee represents and warrants
that, according to the records available to it, the Contract Balance as defined herein is
accurate. The Surety reserves the right to verify the accuracy of the Contract Balance.
The Obligee agrees that the Contract Baiance is dedicated to and will be applied to the
completion of the Original Contract pursuant to this Agreement. The Obligee shail pay directly
to the Surety the Contract Balance, plus or minus any additional amounts of money on account
of any modifications requested and authorized by the Obligee and Surety, as the work
progresses. The payment of the Contract Balance to the Surety shall be made in accordance
with the terms of the Original Contract as to the time, amount and method of payment, and no
payment shail be delayed by reason of any slow down or cessation of work in connection with
the takeover of the Original Contract by the Surety. The Surety agrees to spend its own funds
as may be necessary from time to time to pay for the performance of the Originai Contract by
the Completion Contractor in the event that the Contract Balance is insufficient, with any such
payments being credited against the penal sum of the Bond. The Obligee agrees that it shall not
assess any liquidated damages against progress payments due to the Surety under this
Agreement.
TAKEOVER AGREEMENT - Page 2
The Surety shall complete the work required under the Original Contract pursuant to this
Agreement on or before February 6, 2000 (the "Completion Date"). The Surety is hereby
granted a non-compensatory time extension fi.om the original completion date in the Original
Contract until the Completion Date. The assessment of any liquidated damages under the
Original Contract and this Agreement shall begin on the day after the Completion Date;
provided, however, that any such assessment of liquidated damages shall not include any alleged
delays of the Principal which occurred at any time during the Principal's performance of the
work under the Original Contract, and that the calculation and assessment of any such liquidated
damages shall include the recognition of any excusable delays by the Surety in the performance
of the Original Contract and this Agreement.
Insofar as the Obligee has any right, title or interest therein, the Obligee agrees that the Surety
and its Completion Contractor shall have the right to use, without charge, any of the equipment,
materials and appurtenances furnished or supplied by the Principal which may be stored on or
about the premises of the Project site or materials which may have been fabricated for use in
connection with the Original Contract, whether or not presently upon the Project site.
The Surety shall be represented at the Project by the Completion Contractor. The Surety shall
specifically authorize in writing an individual with the Completion Contractor to be its
representative (the "Authorized Individual") solely for the purposes set forth in this paragraph.
The Authorized Individual will represent the Surety in dealing with the Obligee on day to day
construction issues with respect to the Project. The Surety hereby designates the Authorized
Individual to prepare and process pay requisitions on the Original Contract. However, the Surety
will sign all pay requisitions submitted to the Obligee. Payments fi.om the Obligee shall be made
payable to the Surety and transmitted to the Surety at the following address, unless and until the
Obligee is notified in writing of any different addresses: ,~.
Continental Casualty Company
Attn: Paul W. Eaves
950 Echo Lane, Suite 250
Houston, Texas 77024
The Authorized Individual has no authority to negotiate Change Orders, credits, backcharges or
net deductions fi.om the Original Contract or the Contract Balance of any nature whatsoever
without the Surety's prior written approval. Any agreements with respect to the warranty work
of the Principal or corrective work as a result of latent defect in the work performed by the
Principal shall require the written approval of the Surety.
TAKEOVER AGREEMENT - Page 3
The total liability of the Surety under this Agreement and the Performance Bond for the
performance of the work, after the expenditure of the Contract Balance, is limited to and shall
not exceed the penal sum of the Performance Bond in the mount of $3,171,653.00. All
payments made by the Surety for the performance of the Original Contract shall be credited
against the penal sum of the Performance Bond. Nothing in this Agreement constitutes a waiver
of such penal sum or an increase in the liability of the Surety under the Performance Bond.
In no event shall the Obligee withhold any of the Contract Balance from the Surety because of
or on account of any claims, liens, suits or demands by any persons or entities furnishing or
alleging to have furnished labor and/or materials to the Project. The Payment Bond shall remain
in full force and effect in accordance with its terms and provisions. The total liability of the
Surety under the Payment Bond is limited to and shall not exceed the penal sum of the Payment
Bond in the amount of $3,171,653.00. Ail Payment Bond payments made by the Surety shall
be credited against the penal sum of the Payment Bond. Nothing in this Agreement constitutes
a waiver of such penal sum or an increase in the liability of the Surety under the Payment Bond.
10.
This Agreement is solely for the benefit of the Obligee and the Surety. The Obligee and the
Surety do not intend by any provision of this Agreement to create any rights in or increase the
rights of any third-party beneficiaries, nor to confer any benefit upon or enforceable rights under
this Agreement or otherwise upon anyone other than the Obligee and the Surety. Specifically,
the Obligee and the Surety acknowledge that nothing in this Agreement shall extend or increase
the rights of any third-party claimants or the liabilities or obligations of the Surety under the
Bonds.
1I.
This Agreement constitutes the whole of the understanding, discussioa¢, and agreements by and
between the Obligee and the Surety. The terms and provisions of this Agreement are contractual
and not mere recitals. The Obligee and the Surety acknowledge that there have been no oral,
written or other agreements of any kind as a condition precedent to or to induce the execution
and delivery of this Agreement. Any v~tten or oral discussions conducted prior to the effective
date of this Agreement shall not in any way vary or alter the terms of this Agreement.
12. This Agreement shall not be changed, amended or altered in any way except in writing and
executed by both the Obligee and Surety.
13. This Agreement may be executed in one or more counterparts, each of which shall be deemed
to be an original.
TAKEOVER AGREEMENT - Page 4
14. This Agreemem shall be govemed by and controlled by the laws of the State of Texas.
15. Any notices which are required to be given by the terms of this Agreement or the Bonds shall be
made as follows:
As to the Obligee:
Via certified mall, return receipt requested,
postage prepaid to:
First United Methodist Church, Coppell Church
Attn: Lym~ohnson
With a copy to:
Mr. Mark McQuality
Bmgg Chumlea McQuality & Smithers
1845 Woodall Rodgers Freeway
Suite 1750
Dallas, Texas 75201
As to the Surety:
Via certified mall, return receipt requested,
postage prepaid to:
Continental Casualty Company
Attn: Paul Eaves
950 Echo Lane, Suite 250
Houston, Texas 77024
With a
copy to:
Gary L. White
Ford White Wielinski & Salazar P.C.
1100 Highland Park Place
4514 Cole Avenue
Dallas, Texas 75205
TAKEOVER AGREEMENT - Page 5
16. This Agreement is effective as of the date first written above.
17. Tl:fis Agreement shall be binding upon the parties and their respective successors and assigns.
18.
In the event that one or more provisions of this Agreement shall be declared to be invalid, illegal
or unenforceable in any respect, unless such invalidity, illegality or unenforceability shall be
tantamount to a failure of consideration, the validity, legality and enforceability of the remainhng
provisions contained in this Agreement shall not in any way be affected or impaired thereby.
19.
It is understood and agreed by the Obligee and the Surety that this Agreement shall be construed
without regard to any presumption or other role requiring construction against the party causing
this Agreement to be drafted.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date indicated
above, and each of the undersigned personally represent and warrant that they have the full right, power
and authority to execute this Agreement on behalf of the respective parties.
OBLIGEE
First United Methodist Church, Coppell, Texas
SURETY
Continental Casualty Company
By: ~'~ b3. ?O,,lr~
Title: AMhor;~;~d ~L~e.~,~¥,~;~'~¢-
20565/883.002
TAKEOVER AGREEMENT - Page 6