RES NO 06-01-2010 CITY OF VAN BUREN, ARKANSAS
RESOLUTION NO.: (4) -2010
BE IT ENACTED BY THE CITY COUNCIL, FOR THE CITY OF VAN BUREN
ARKANSAS, A RESOLUTION TO BE ENTITLED:
A RESOLUTION AUTHORIZING THE MAYOR TO EXECUTE A
SETTLEMENT AGREEMENT AND RELEASE WITH TRAVELERS
CASUALTY SURETY CO. OF AMERICA.
WHEREAS, the City of Van Buren in 2007 received and opened bids in accordance with
Arkansas law for the construction of the new Van Buren Library, which included
a bid from Bossier Contracting Inc.; and
WHEREAS, after evaluation, the City of Van Buren awarded the construction contract to
Bossier Contracting Inc.; and
WHEREAS, the payment and performance bond for Bossier Contracting Inc. is held by
Travelers Casualty Surety Co. of America (Bond Number 031 -SB- 104876967);
and
WHEREAS, the City of Van Buren, Arkansas, has declared default and filed claim against
aforementioned bond; and
WHEREAS, Travelers Casualty Surety Co. of America offered.a Settlement Agreement
and Release, such agreement being conditional upon approval by the Van Buren
City Council; and
WHEREAS, such Settlement Agreement if approved, will resolve any and all causes of
action and issues between the parties and allow the City of Van Buren to complete
construction and repairs to the new library; and
WHEREAS, the Settlement Agreement provides Travelers Casualty Surety Co. of America
shall pay to the City of Van Buren, upon adoption of the Settlement Agreement,
the sum of Two Hundred Thirty Three Thousand Four Hundred and Thirty One
Dollars ($233,431) for completion and repairs to the new library; and
WHEREAS, the City Council of Van Buren finds that adoption of the Settlement
Agreement and Release is in the best interests of the citizens of the City of Van
Buren and that such Agreement should be approved.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF VAN BUREN,
ARKANSAS:
SECTION 1: That after considering all things and matters relating to the Settlement Agreement
and Release the City Council finds that it is in the best interests of the City of Van
Buren that the Settlement Agreement and Release, a copy of which is attached
hereto, labeled Attachment" A be approved by the Van Buren City Council.
SECTION 2: That the Mayor is authorized to execute, on behalf of the City of Van Buren, the
Settlement Agreement and Release.
SECTION 3: That this Resolution shall be in full force and effect from and after its passage and
approval.
IN WITNESS WI-IFREOF, the City of Van Buren, Arkansas, by its City Council, did
pass, approve, and adopt, by a vote of for and 0 against, the foregoing Resolution at its
duly called special meeting held on the 7th day of June, 2010.
0
Robert D. Freer= *h4
ATTESTED:
Barbie Curtis, City Clerk/Treasurer
Travelers
FINAL AFFIDAVIT, RELEASE AND ASSIGNMENT
IN CONSIDERATION of the payment of Two Hundred Thirty Three Thousand Four Hundred
and Thirty One Dollars and 00 /100 Dollars ($233,431) by Travelers Casualty Surety Co. of
America (the Surety") to the City of Van Buren (the Obligee'), the.undersigned parties shall
fully and finally release, acquit; covenant not to sue and forever discharge each other, their
predecessors, subsidiaries, affiliates, and all of its current and former members, partners, officers;
directors, attomeys, agents, representatives, employees, insurers, successors and assigns, of and
from any and all claims, losses, expenses, damages, demands, actions, and causes of action, known
or unknown, including, but not limited to, all claims arising out of the Surety's issuance of the
bond, investigation of the claim or handling of this matter, which the Obligee has or may have
arising out of the Contract, the Project or the Performance Bond covering the following contract
Name of Contractor: Bossier Contracting
Name of Obligee: City of Van Buren
Description of Contract New Public Lrlrrary
Bond No.: 031SB- 104876967
In further consideration of the aforesaid payment, the undersigned hereby assigns, transfers and
sets over to said Surety its above mentioned claim or cause of action against said contractor
together with all of its rights, title andntterest in and to said claim, or cause of action; and the
undersigned constitutes said assignee its true, lawful and irrevocable attorney to demand, receipt
for and enforce payment of the said claim, and at its own expense to sue for the said sum so
assigned either in the name of the undersigned, or in its own name.
Date:
By:
Its:
Pet
Travelers
This document must be executed before a Notary
Public and include the attached Notary
Aclmowledgment
ortsuroa. ttON
CAPACITY CLAIMED BY SIGNER
State of
Thongh statute does notrequhc the Notary to fill in the
County of data below, doing so may Wove invaluable to macro
tdying on this document
On before rat.
DATE NAME, TALE OF OFFICER. EO. JANE DOGtgrARY Flom IC
personally appeared INDIVIDUAL
NAMaS1 OFsrcNn(s)
personalty known to me -0R- proved to toe on the basis of CORPORATE OFFICER(S)
satisfactory evidence to be the
pawo(s) whose names) is/are
subscribed in the within neo
huwnunad and admovetedged
to me that hdsheAbeyexecuted PARINER(S) ❑LIMITED
the saint his/heddoir
authorized capacity(ies), and O3ENERAL
that by histhahh rii signatoc(s)
on the inshumeat the person(s), 0 ATTORNEY -IN -FACT
or the entity upon behalf of
which the pers(n(s) acted, TRUSTEE(S)
=cubed the irstrurnalt
GUARDIAN/CONSERVATOR
WITNESS ray hand and ofcial seal.
GTe°c.
TiAztura of Wary
OPTION SECTION
THIS CERTIFICATE MUST BE ATTACHED TO TITLE OR TYPE OF
DOCUMENT
THEDOCUMENT DESCRIBED AT RIGHT: NUMBER OF PAGES DATE OF
DOCUMENT
Y6rvas un Aux a acrea rat ,;.ga+etSytat. SIGNER(S) OTHER THAN NAMED
ABOVE
Et =LI Fenn fl adatmm I. dtrmform
Rn 61/14/A Cw
SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS
This Settlement Agreement and Release of Claims "Settlement Agreement is made
and entered into by and between Travelers Casualty and Surety of America ("Travelers a
foreign insurance company authorized to conduct business in the State of Arkansas, and the City
of Van Buren "Van Buren an Arkansas municipality (collectively, the "Parties').
WITNESSETH:
WHEREAS, on or about August 20, 2007, Bossier Contracting, Inc. entered into a
Construction Contract with Van Buren for the completion of the Van Buren Public Library
New Facility (the "Project for a contract sum of $3,376,342;
WHEREAS, on or about August 20, 2007, Travelers issued certain payment and
performance bonds collectively numbered 104876967 (the "Bonds on behalf of Bossier
Contracting, Inc. in conjunction with the Project;
WHEREAS, on or about December 16, 2009, Van Buren terminated Bossier Contracting
Inc.'s right to complete the Construction Contract "Contract for completion of the Project;
WHEREAS, on or about January 14, 2010, Travelers initiated investigations related to
the Van Buren claim against the Bond for default;
WHEREAS, without any admission of liability or wrongdoing, in order to avoid the
expense of litigation, further damages and delay, bring closure to the Project and in order to
resolve Van Buren's claim rights and interests related to the Bonds and any and all claims that
the parties have or may have arising out of or related to the Project or the Bonds, the Parties wish
to resolve the disputes between them; it is
STIPULATED AND AGREED as follows:
MEI 9913385v.1
1. In consideration of Van Buren's claim for Traveler's performance under the
Bonds, Travelers will tender payment to Van Buren in the amount of $294,431 within forty-five
(45) days of the execution of this Agreement.
2. Van Buren, upon execution of this agreement and receipt of aforesaid payment,
agrees to indemnify Travelers against any and all current or future claims, demands and/or
causes of action stemming from, associated with or relating to retainage covered by the Bonds.
3. RELEASES: In consideration of the Parties entering into this Settlement and
Release of Claims, the sufficiency of all said consideration being stipulated, Travelers, for itself
its successors and assigns, Van Buren for itself, its successors and assigns do, by these presents,
hereby agree as follows:
The Parties to this Stipulation unconditionally release, acquit and forever
discharge each other, their agents, successors and assigns, from any and all damages, claims,
demands, rights, obligations and/or causes of action of whatever kind or nature, whether known
or unknown, that either Van Buren or Travelers has now or may ever have in the future against
each other arising out of or related to the Contract or the Bonds, with the exception of any
indemnity obligations as set forth in Paragraph 2 of this section.
4. This Settlement Agreement contains the entire integrated agreement between the
parties and supersedes all prior oral or written agreements, commitments or understandings with
respect to the matters provided for herein and no modification hereof shall be binding upon the
party affected unless set forth in writing and duly executed by each of the other parties hereto.
5. This Settlement Agreement is executed voluntarily by the parties without any
duress or undue influence on the part, or on behalf, of them. Each of the parties participated in
drafting this Settlement Agreement after consulting with counsel, and each has read and fully
2
ME[ 9913385v.1
reviewed each of the provisions of this Settlement Agreement and has relied on the advice and
representation of competent legal counsel of its own choosing. Each and every term and
provision of this Settlement Agreement has been mutually agreed to and negotiated by the
undersigned parties and shall be construed simply according to its fair meaning and not strictly
for or against any party.
6. This Settlement Agreement may not be modified or amended except by an
instrument in writing signed by the parties hereto. No waiver of any provisions of this
Settlement Agreement will be binding unless made in a writing signed by the parties hereto.
7. Each and every term and provision of this Settlement Agreement is intended to be
severable. If any term or provision hereof is illegal or invalid for any reason whatsoever, such
illegality or invalidity shall not affect the legality or validity of the remainder of this Settlement
Agreement.
8. This Settlement Agreement shall be govemed by the laws of the State of Arkansas
applicable to contracts made and to be wholly performed therein, without regard to conflicts of
law rules or principles. Any and all litigation and mediation under this Agreement shall be
conducted in the state of Arkansas. The parties submit to the jurisdiction of the courts of the
State of Arkansas, regardless of any party's domicile at the time of any such litigation or
mediation.
9. The failure of any party hereto at any time to enforce any of the provisions of this
Settlement Agreement shall not be deemed or construed to be a waiver of any such provision,
nor to in any way affect the validity of this Settlement Agreement or any provision hereof or the
right of any party hereto to thereafter enforce each and every provision of this Settlement
Agreement. No waiver of any breach of any of the provisions of this Settlement Agreement shall
3
MEI 9913385v.1
be effective unless set forth in a written instrument executed by the party against whom or which
enforcement of such waiver is sought; and no waiver of any such breach shall be construed or
deemed to be a waiver of any other or subsequent breach.
10. This Settlement Agreement may be executed in one or more counterparts, each of
which shall for all purposes be deemed to be an original and all of which when taken together
shall constitute the same instrument notwithstanding that the parties may not have signed the
same counterpart.
4
MEI 9913385v.I
IN WITNESS WHEREOF, the parties, intending to be b6ihd. have caused this
Settlement Agreement to be executed on the date set fortis belov Lr 9ame.
-.<71/1/i
T,RA.VELF_RS, AS SALTY AND SURETY
/COMPANY 0 AMERICA
Name:
Title:
Dated: 1
L7f
STATE OF NQ
SS.:
COUNTY OF (7�� //aj,;)2C Sr
I certify that on the day of in the year -Ate), before me, the
undersiened, a notary public in and for said State, personally appeared
Sq personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the within instrument and
acknowledged to me that he is the ?6nc( Co tins t=( of Travelers Casualty and
Surety Company of America, the corporation described herein, and which executed the foregoing
Settlement Agreement, and that he executed the same in his capacity, and that by his signature on
the instrument, the individual, or the corporation on behalf of which the individual acted,
executed the instrument.
Signed and sworn to before me on
this) day of U ,2 10.
taw �.r C_—
NO" ARY PUBLIC
714/Commission E!; i (S3
January 1,2011
5
PIEI 9913335v.1
IN WITNESS WHEREOF, the parties, intending to be boii d, have caused this
Settlement Agreement to be executed on the date set forth belov' eirame.
<<)//24
TRA.VJLERS,�ASdALTY AND'SURLTY
/COMPANY 0 AMERICA
By: 5fv"I e i. ante G J i' j
Name: i j,;-- Cc, 'A
Title:
Dated: 7 f i`/ /0
STATE OF Anti L A
SS.:
COUNTY OF 641-( 'd age
I certify that on the day of in the veal- D /6, before me, the
undersigned, a notary public in and for said State, personally appeared
SI-fe�■5 personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the within instrument and
acknowledged to me that he is the ecnd Cou,rvsc_.( of Travelers Casualty and
Surety Company of America, the corporation described herein, and which executed the foregoing
Settlement Agreement, and that he executed the same in his capacity, and that by his signature on
the instrument, the individual, or the corporation on behalf of which the individual acted,
executed the instrument.
Signed and sworn to before me on
this 1 51- day of 71_,, l 2 10.
/�i asses
NO` ARY PUBLIC
b yCommission cr.kr'33
Januarf 1, 2011
J
h1EI 99133Xiv.]
City of San Bur"
By:
Name: Rdee D' Eternal
Title: Nt r of \lenBt.cren AR
Dated: dust f'1 ).010
STATE OF A RkMSA5
SS.:
COUNTY OF CatkJPoRD
I certify that on the 1 i day of gone, in the year aQ/Q before me, the
ndersigned, a notary public in and for the said State, personally appeared
Wob9.n4- 'reen,an personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the within instrument and
acknowledged to me that he is the Mayor of the City of Van Buren, the municipality described
herein, and which executed the foregoing Settlement Agreement, and that he executed the same
in his capacity, and that by his signature on the instrument, the individual, or the municipality on
behalf of which the individual acted, executed the instrument.
Signed and sworn to before me on co \NHH# 1
this to 3
day of 'une. 2010.4 9 Z
+0 PRY 9• r.
C Ci>if (P)1 'h
OT A R Y PURL
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MEI 9913385v .I