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Home My Public Portal About177-2019 - White Oak Construction - Final TerminationTERMINATION AGREEMENT THIS TERMINATION AGREEMENT ("Agreement") is made and entered into as of _ '' II qby and between the City of Richmond, Indiana., Indiana ("City") and white oak Co ction ("white Oak'). The City and White oak are sometimes referred to as a "Party" or collectively as the "Parties". RECITALS A. The City and White oak are parties to an agreement, which, for' identification purposes, within. the City's contract system is labeled as Contract No. 105-201 S, pertaining to construction services for the Fagade Renovation Project located in downtown Richmond, Indiana ("Project"). The construction agreement has an effective date of July 24, 2018 ("Construction Agreement") . B. The Proj ect work is not complete; nevertheless, the Parties have elected to teate the Construction Agreement for their mutual convenience and not on the basis of any default or other cause. Any claim of default or the life by either party is hereby rescinded. C. In accordance with the Bid Specifications --referred to in the Construction. Agreement, White oak, as principal, and Merchants Bonding Company (Mutual) ("Merchants"), as surety, furnished Performance and Payment Bonds (INC 60927) ("Bonds") guaranteeing performance of the work, including payment to Project subcontractors and suppliers. D. Pursuant to applicable terms of the Construction Agreement, the Parties agree to terminate the Construction Agreement and to give releases for the benefit of the Parties and others whereby the Parties are "-walking walking away" from one another in respect of the Construction Agreement, the Project, and the Bonds, except as specifically provided for otherwise herein.. E. The termination will occur pursuant to the terms and conditions stated in this Termination Agreement. For valuable consideration, the receipt of which is hereby acknowledged, the Parties agree as follows. AGREEMENT 1. Recitals. The foregoing Recitals are hereby incorporated herein as part hereof by this reference thereto. 2. Effective Date. The effective date of the terrraiilation. is April 5, 2019, which is the date that the City requested that White oak cease further Project work ("Effective Date"). 3. Final Payment. within 5 days of the execution of this Agreement by the Parties, the City shall pay to white oak the compromise sum of $51,325.55, representing final payment for all Project Work performed prior to the Effective Date, including requests made by white Oak to the City for additional costs or work claimed to be extra work. white oak shall have no other CONTRACT NO.177-2019 right or claim to payment for work performed, additional costs, damages, or the like. Additionally, in exchange for final payment, ate oak shall furnish a final waiver in the form attached hereto as Exhibit 4. Payment to Vendors and Indemnification.. White oak shall be responsible for payment for all labor, materials, or other services furnished to the Project prior to the Effective Date by a subcontractor or supplier engaged by White Oak ("Vendors"). Furthermore, White Oak shall indemnify the City from any Vendor's claim asserted against the City or the Project for non-- payment for all labor, materials, or other services furnished to the Project prior to the Effective Date. Provided, however, in the event that the City or a replacement contractor engages any of White oak's Vendors to perform Project work after the Effective Date, White oak and Merchant's shall not be obligated to make paymeilt for such work performed after the Effective Date and White Oak shall not be obligated to indefy the City in the event of nonpayment. 5. Cooperation.. The Parties shall reasonably cooperate with one another to insure the smooth transition of the Project work to replacement contractor(s). This cooperation shall be at no cost to the other. White Oak shall provide a complete list of subcontractors and vendors which shall include all executed contracts between White -oak and subcontractors and vendors. White Oak will further tender all keys associated with any structure that is the subject of the Project and will affirm that none of the same have been copied or duplicated. White Oak shall return to the City any items salvaged for reuse in the Project that may not be stored at the Project site. Finally, White oak will, within. seven (7) days of the execution of this Agreement, caused to be removed and cleaned up all materials and tools belonging to White oak which are located on or about any property that is the subject of the Project. 6. White Oak Release. Except for the obligations established in this Agreement, White oak, for itself and its owners, employees, successors, assigns, insurers, and sureties, hereby releases and discharges the City, and its officials, employees, insurers, successors and assigns, all property owners of any structure or building that is the subject of the Project, and BBKCC Law Firm and LWC, ' Inc. and their officials, employees, insures, successors and assigns of and from any and all claims, demands, duties, obligations, costs, damages, penalties, fines expenses, and fees (including attorneys' fees) , whether known or unknown, arising out of or relating to the Construction Agreement, the Project, or the Bonds The City shall remain obligated to indemnify White Oak with respect to any claims and corresponding injuries, damages, losses, and expenses which may arise from the City's performance of the Agreement or from the conduct of any property owner, replacement contractor, or Project architect. Provided, however, the City shall not be liable for acts of White oak, its officers, agents, or employees. ?. Cit y Releases. Except for the obligations established in this Agreement, the City, for itself and its officials, employees, boards, (including specifically the Board of Public Works and Safety), insurers, successors, and assigns, hereby releases and discharges White Oak, and its owners, employees, successors, assigns, insurers, and sureties (including specifically Merchants), and attorneys, of and from any claims, demands, duties, obligations, costs, damages, penalties, expenses, and fees (including attorneys' fees) , whether known or unknown, arising out of or relating to the Construction Agreement, the Project, or the -Bonds. white Oak shall remain obligated to indemnify the City for any damage or injury to person or property which may arise from white oak's conduct or performance of the Agreement prior to the Effective Date although White Oak's liability will not exceed applicable insurance coverage limits stated in the Agreement; Provided, however, white oak shall not be liable for acts of the City, its officers, agents, or employees. The City, who is the obligee of the Bonds, relinquishes any and all rights under the Bonds and will return the original Bonds to Merchants herewith. S. Covenant Not to Sue: The Parties further agree they will not hereafter bring, commence, or prosecute any cause whatsoever, or permit to be brought, commenced, or prosecuted, either directly or indirectly, any administrative hearing, arbitration proceeding of any kind, any suit or action, either at law or in equity, in any court of the United States, or any state court against the other Party, or their officials, owners, agents, employees, predecessors, successors, sureties, insurers or corporations affiliated with them with respect to the Construction Agreement, the Project, or the Bonds. 9. General Terms of Settlement. A. Each Party; as applicable, hereby represents and warrants to the other that: (a) all necessary action on the part of each Party hereto which is required to be taken in connection with the execution, delivery and performance of this Agreement and of any documents or things delivered or to be delivered pursuant to this Agreement has been duly and effectively taken; and (b) the execution, delivery and performance by each Party of this Agreement and of any documents or things delivered or to be delivered pursuant to this Agreement does not constitute a violation or breach of such Party's articles of incorporation, by --laws, or any other' agreement or law by which such Party is bound. B. This Agreement constitutes the entire and final agreement between the Parties concerning the subjects of this Settlement Agreement. There are no other agreements, understandings, warranties or representations among the Parties concerning the subject of this Agreement. If any provision of this Agreement is held to be invalid, the remaining provisions shall remain in full force and effect. C. This Agreement may be executed by facsimile signature and in counterparts, each of which will be deemed an original document, but all of which will constitute a single document; provided, however, that this Agreement shall not be binding on or constitute evidence of a contract between the Parties until such time as a counterpart of this Agreement has been executed by each Party and a copy thereof delivered via facsimile or email transmission to the Parties. D. Neither this Agreement nor any of the provisions hereof can be changed, waived, discharged or terminated, except by an instrument in writing signed by the Parties. E. The Parties and their respective counsel mutually contributed to the preparation of and have had the opportunity to review and revise this Agreement. Accordingly, no provision of this Agreement shall be construed against any Party because that Party, or its counsel, drafted the provision.. Agreement and all of its terms shall be construed equally as to the Parties. F. In the event of litigation or any other form of action or proceeding between the Parties to enforce this Agreement, the prevailing party shall be entitled to recover from the non -prevailing party reasonable attorneys' fees in connection with any such action or proceeding. WHEREFORE, the undersigned Parties have executed "this Agreement as of the Effective Date. RICHMOND Printed:By:_ 4 .I r .- SITE OAK CONSTRUCTION By. Printed:Jc-& _P-50hoy'g, Title: Date: