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Home My WebLink AboutResolution No. 2016-036 CITY OF THE COLONY, TEXAS RESOLUTION NO. 2016- C:4 (..p A RESOLUTION OF THE CITY OF THE COLONY, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE A LETTER OF DIRECTION WITH CD BUILDERS, INC., ENDURANCE REINSURANCE CORPORATION OF AMERICA, AND DAYHILL GROUP, LLC, TO AMEND PAYMENT PROVISIONS FOR THE PHASE 5 RESIDENTIAL STREET RE- CONSTRUCTION PROJECT; PROVIDING FOR AN IMMEDIATE EFFECTIVE DATE NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS: Section 1. That the City Council of the City of The Colony, Texas hereby approves a letter of direction for the purpose of amending payment provisions for the Phase 5 Residential Street Reconstruction Project. Section 2. The City has determined that it is in the best interest of the City to approve a letter of direction with CD Builders Inc., Endurance Reinsurance Corporation of America, and Dayhill Group, LLC which is attached hereto and incorporated herein by reference as Exhibit "A," under the terms and conditions provided therein; and Section 3. That this resolution shall take effect immediately from and after its passage. PASSED AND APPROVED by the City Council of the City of The Colony, Texas, this 5th day of July, 2016. J e McCou , Mayor City of The Colony, Texa ATT ST % ErbAca Tina Stewart,TRMC, Interim City Secretary •.' 'ROVED AS TO FO' A: 4111013 • Jeff Moore,,City Attorney FUNDS DISBURSEMENT AGREEMENT This Funds Disbursement Agreement ("Agreement") is made by and between the City of The Colony, Texas, a Texas home-rule municipality (the "City"), CD Builders, Inc., a Texas corporation (the "Contractor"), Endurance Reinsurance Corporation of America, a corporation licensed to conduct business in Texas as a construction surety (the "Surety"), and the Dayhill Group, LLC, a Pennsylvania limited liability company ("Dayhill"), and is effective as of the 1st day of April, 2016. RECITALS WHEREAS, the City and the Contractor entered into that certain construction contract whereby the Contractor agreed to perform work on the Phase V Street Reconstruction Project for the City(the"Project"); and WHEREAS, the Surety provided performance and payments bonds for the Contractor in connection with the above-referenced Project; and WHEREAS, as a condition precedent for handling claims under the performance and payment bonds for the Project, the Surety has required the Contractor to employ Dayhill to be the Disbursement Agent which the Contractor will use to assist the Contractor in discharging the Contractor's payment duties noted in the construction contract between the City and the Contractor; and WHEREAS, as Disbursement Agent, Dayhill is employed directly by the Contractor and is in no way a party to the construction contract executed by the City and the Contractor on the Project; and WHEREAS, the Contractor desires to amend the construction contract payment provisions regarding where the City's payments for work are to be sent; and WHEREAS, the Surety desires to amend that certain letter of instruction, dated February 3, 2016, wherein the Surety instructed the City to release no further funds to the Contractor in connection with the Project, including any progress payments, retainage or additional claim amounts, without the advanced written consent and direction of Surety; and WHEREAS, the Contractor desires to amend that certain letter of instruction, dated February 22, 2016, wherein the Contractor directed the City to make future payments under the Project jointly to the Contractor and to MAPFRE, as agent for the Surety; and WHEREAS, the City understands that the Contractor, Surety and Dayhill agree that the Contractor has assigned any and all future contract proceeds and payments made by the City to the Contractor, on the Project, to Dayhill; and WHEREAS, the City, the Surety, and the Contractor desire to enter into this Agreement as an amendment to the construction contract for the Project whereby all contract funds paid by 1 the City, including, but not limited to, progress payments, retainage, interest, change orders, modifications or claim proceeds, if any, shall be paid to and deposited with Dayhill as Disbursement Agent. NOW, THEREFORE, for and in consideration of the above and foregoing premises, and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties to this Agreement hereby agree as follows: 1. From and after the Effective Date referenced above, the City shall pay and deposit all contract funds intended to be paid to the Contractor on the Project to Dayhill as Disbursement Agent. 2. All payments shall be made payable to the Contractor and mailed to: Dayhill Group, LLC 1205 Westlakes Drive, Suite 280 Berwyn, PA 19312 3. The parties to this Agreement agree that this amendment to the construction contract executed by the City and the Contractor is irrevocable by the City and can only be changed or altered by prior written approval and consent of the Contractor and Surety through duly authorized representatives of both the Contractor and the Surety, however the Surety may present the City with documents authorizing it to act on behalf of the Contractor as attorney in fact or otherwise herein. 4. This Agreement constitutes the entire understanding and agreement of the parties as to the matters set forth in this Agreement. No alteration of or amendment to this Agreement shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment except that the Surety may present the City with documents authorizing it to act on behalf of the Contractor as attorney in fact or otherwise herein. 5. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, and is performable in Denton County, Texas. To the extent required by the underlying contract for the Project, exclusive venue for any legal action arising under this Agreement shall lie in courts of competent jurisdiction in Denton County,Texas. 6. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall constitute one and the same document. 7. It is expressly understood and agreed by the parties to this Agreement that if the performance of any obligations hereunder is delayed by reason of war, civil commotion, acts of God, inclement weather, fire or other casualty, or court injunction, the party so obligated or permitted shall be excused from doing or performing the same during such period of delay, so that the time period applicable to 2 such obligation or requirement shall be extended for a period of time equal to the period such party was delayed. 8. The persons executing this Agreement are authorized to execute this Agreement on behalf of each of the respective parties. 9. The provisions of this Agreement are severable. If any paragraph, section, subdivision, sentence, clause, or phrase of this Agreement is for any reason held by a court of competent jurisdiction to be contrary to law or contrary to any rule or regulation that has the force and effect of law, the remaining portions of this Agreement shall be enforced as if the invalid provision had never been included. 10. This Agreement shall be binding upon and inure solely to the benefit of the parties hereto, and their respective legal representatives, successors and assigns, however nothing herein is intended to waive any of the respective rights, remedies, claims or defenses of the parties that they may already exist or may have arisen prior hereto. This Agreement may not be assigned, transferred or otherwise conveyed by any party without the prior written consent of the parties to this Agreement. IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed by its undersigned duly authorized representative as of the date hereinabove first mentioned. CITY OF THE COLONY, TEXAS CD BUILDERS, INC. By,00111P:./. By: Print e :1:11f.1*(405 PO de a Print name:IS11,4 9,(A Ca ID ENDURANCE REINSURANCE DAYHILL GROUP, LLC CORPORATION OF AMERICA 4 By: / alk B Pri /me: embei Da S-0•11 Print name: / ...... •••;:. $‘ Ci191. SEAL i ............ rEX 3