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2001-102C \WINDOWS\TEMP~Henderson Assignment doc OmiNANCENO AN ORDINANCE APPROVING THE ASSIGNMENT OF A PUBLIC WORKS CONTRACT BETWEEN THE crrv OF DENTON, TEX~S AND .ENDERSON CONSTRUCTION, L ~- P FOR TIlE CONSTRUCTION OF CERTAIN MUNICIPAL IMPROVEMENTS KNOWN AS THE WESTE~ PECAN/COOPER CREE~: PROJECT TO ~BO SERWCES, INC. WINCH CONTRACT WAS PREVIOUSLY AWARDED BY THE CITY COUNCIL PURSUANT TO ORDINANCE NO 2000-276, AUTHORIZING THE CITY MANAGER TO EXECUTE THE ASSIGNMENT ON BEHALF OF THE CITY AND AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR. AND PROVIDING AN EFFECTIVE DATE (PROJECT AMOUNT- $683,930) WHEREAS, the City of Denton, Texas and Henderson Constmctton L LP ("Henderson") have heretofore entered m to a pubhc works contract for the constmctton of certain mumc~pal ~mprovements for mflowhnfiltmtion corrections known as the Western Pecan/Cooper Creek Project, winch contract was previously awarded to Henderson pursuant to Ordinance No 2000-276 (the "Contract"), and WHBREAS, Henderson has requested that the Contract be assigned to Kebo Services, Inc, and WHEREAS, the C~ty Counctl finds that such asstgnment is In the public interest, NOW, THEREFOR, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS 'SECTION 1 The assignment of the Contract Is hereby approved in substantmlly the form of the Assignment of Contract and Tn-Party Agreement attached hereto and made a part hereof reference (the "Asstgnment") The C~ty Manager or ins designee ~s hereby authorized to execute the Assignment on behalf of the City of Denton, Texas SECTION 2 The C~ty Manager ~s anthonzed to make the expenditures as set forth in the Contract and Assignment SECTION 3 Tins ordinance shall become effective ~mmedmtely upon ~ts passage and approval PASSED AND APPROVED tais the ~ day of ,~/t~/~/ ,2001 C EULINE BROCK, MAYOR ATTEST JENNIFER WALTERS, CITY SECRETARY HERBERT L PROUTY, CITY,~TTORNEY Page 2 ASSIGNMENT OF CONTRACT AND TRI-PARTY AGREEMENT WHEREAS, on the ~t9~/~'' day of ~ ,2001, the CITY OF DENTON, TEXAS, whose address ~s 901-A Texas Street, Denton, Texas 76201 (hereinafter sometimes called "the City") and Henderson Construction, L 1 P, whose address ~s P O Box 123593, Fort Worth, Texas (hereinafter sometunes called "Henderson") made and entered into a certain contract for the constrnct~on of certain mumclpal unprovements known as the Western Pecan/Cooper Creek Project (the "Contract") whtch Contract was awarded to Henderson in the amount of $683,930 through the competitive bid process pursuant to City Ordinance No 2000-276, dated September 6, 2000, and, WHEREAS, Henderson and Evergreen National Indemmty Company, a surety bond company (the "Surety") have issued performance and payment bonds dated thc same date as the Contract, and WHEREAS, Henderson desires to assign the soad Contract to Kcbo Services, Inc whose address ~s 2821 Lacldand Road, Stute 208, Fort Worth, Texas 76116 (hereinafter sametmaes called "Kebo") and Kebo desires to accept assignment of smd contract from Henderson, and, WHEREAS, the Surety has signed ttus agreement evidencing its consent to the asslgmnent, and WHEREAS, the City has agreed to allow such assignment, con&t~oned upon the terms ofth~s assigmnent NOW, THEREFORE, IT IS MUTUALLY AGREED the C~ty, Henderson and Kebo as follows Page 1 A 'xASSIONMENT OF CONTRACT Hendorson doc: 1 For and m cons~derataon of the covenants and obhgat~ons of Kebo as heremat~er set forth, Henderson assigns all benefits touring to ~t under the Contract to Kebo, including the right to receive payments for any and all pay items set forth m the Contract together w~th payment for any change orders or payments for additional work that may subsequently be made by the C~ty 2 For and m cons~deratxon of the assignment of all benefits under the Contract by Henderson to Kebo, Kebo agrees to commence and complete all the work described m the Contract, and all extra work connected therewith, under the terms stated m the contract documents, and at ~ts own proper cost and expense to furmsh all the matemls, supphes, machinery, eqmpment, tools, superintendent, labor, bonds, insurance, and other accessories and serwces necessary to complete the smd construction, m accordance wah the contract documents, wtuch include all maps, plats, blueprints and other drawings and printed and written explanatory matter thereof, and the specxficat~ons thereof, as prepared by the engineers employed by the C~ty, together w~th the contractor's written proposal and the other parts of the contract documents, including the general spec~ficanons Kebo agrees to commence work wathm ten (10) days al~er the date written not,ce to do so shall have been gxven to ~t, and to substantmlly complete same w~thln the th-ne stated m the Contract 3 The C~ty approves tlus assignment, subject to the terms and conditions hereof, and subject the receipt of new performance and payment bonds f~om the Surety wbach add Kebo as an adda~onal prmcxpal The C~ty agrees to pay to Kebo Services, Inc, and not to Henderson, m current funds for the performance m accordance w~th the Contract, subject to additions and deductxons, as prowded m the contract documents and all Page 2 A ~SSIONMENT OF CONTRACToHonderson doe approved modifications thereof, and to make payment on account thereof as provided ~n the contract docments 4 It is further agreed by all parties that Kebo shall be authorized to execute and subnut any and all reqmred documents reqmred by the C~ty ~n connectton wtth the Contract, including but not Imuted to certified payroll reports, partial pay estimates, final pay estimate, change orders and any documents needed for completion of the Contract In connection therewith, m the event any documents requure the approval, subnusslon or execution by Henderson, Henderson ~rrevocably appoints Kebo its true and lawful attorney-m-fact to approve, subrmt or execute such document or documents on its behall as ~ts attorney-m-fact 5 It ~s further agreed that th~s assignment shall m no way release Henderson from any of its obhgat~ons under the Contract, and shall m no way release Henderson from as obhgatlon to perform the work described m the contract documents, and tn any event of default by Kebo, the City may seek and obtain any remedies as prowded ~n the contract documents against Henderson or Kebo or Henderson and Kebo, jointly and severally Any notices of default that are provided for in the contract documents shall be delivered to both Henderson and Kebo The approval by the Cxty of th~s assignment shall not operate to release Henderson or the Surety from any of the Contract and bond obhgatlons, and Henderson shall be and remain fully responsible and liable for the defaults, neghgent acts and onusstons of Kebo, tts agents and employees, as ff they were its own 6 Tlus agreement contains the entire agreement of the part,es and cannot be amended excepl by an mstrumenl m wr;Img s~gned by all of tile part ~es Page 3 A ~ASSIGNMENT OF CONTRACT ttenderson do~ 7 Th~s agreement Is to be performed m Denton County, Texas and venue of any actions under flus agreement shall be m Denton County, Texas IN WITNESS WHEREOF, the parhes to these presents have executed th~s agreement to be effective as oftbe date of the Contract as above written Michael ~/ Jez~/lty'Manager Jell'er ~af~, City Secr~-tary Herbert L Prouty, City Attorney By B~Henderson, General Partner KEBO SER)~ICES, INC By Robert Alhson, President Page 4 A ~,ASSIGNMFNT OF CONTRACT I Icnderson de,. The Surety hereby consents to th~s assignment and agrees that this assignment wdl not operate to release Surety from any of the Contract and bond obhgat~ons ~l he Surety agrees to issue and dehver new performance and payment bonds which add Kebo as an additional principal Attorney m Fact Page 5 A ~ASSI(~N MEN'[ OF LONTRAL I I Icnd©rson do~