HomeMy WebLinkAboutCO 1 CITY OF RENTON CO#1-11
Public Works Department
CONTRACT CHANGE ORDER AGREEMENT
CONTRACT: CAG 10-•142—Westview Lift Station Upgrades C.O.#1
CONTRACTOR: Advanced Construction, Inc.
SUMMARY OF PROPOSED CHANGE:
Provide all labor, equipment, subcontracting, bonding, insurance for the complete work required for the extra
work as outlined below:
ITEM Additional Quantities Under This Change Order Unit Quantity Unit Price Total Price
003 NEW ITEM: Extra work to pick up,transport, and install LS 1 $3,725.0 $3,725.00
replacement hatches at East Renton Lift Station as a 0
lump sum item per contractor's bid. Advanced
Construction's bid was the low bid submitted as an email
bid solicited from three contractors on February 9, 2011
and due February 18, 2011. Work done under this
change order to replace doors stolen and will be paid for
through account: 502.000000.005.514.74.46.035
(property claims—Wastewater)
Subtotal_ _ $3,725.00
9.5%Sales Tax 353.88
Total $4,078.88
ORIGINAL CONTRACT CURRENT CONTRACT ESTIMATED NET ESTIMATED CONTRACT
AMOUNT AMOUNT CHANGE THIS ORDER TOTAL AFTER CHANGE
$101,835.00 $101,835.00 $4,078.88 $105,913.88
SIGNATURES:
Contractor: Pte, Date: �� 5
Project Engineer: Date:
Approved By: rm Date: .
(Utilities System irector)
WAWWP-27-3536 Westview Lift Station Upgrades\CO-1.DOC
x _
aCAG-10-142
TAKEOVER AGREEMENT
I. RECITALS
A. The parties to this Takeover Agreement ("Agreement") are First National
Insurance Company of America ("First National" or "Surety") and The City of Renton
("Owner"). This Agreement is effective as of the date it is signed by all parties and approved by
the governing entity of Owner("Effective Date").
B. On or about December 20, 2010, Owner entered into a General Contract (the
"General Contract") with Advanced Construction, Inc. ("ACI" or `.`Principal") for the project
known as The Westview Lift Station Upgrades, Project No. WWP-27-3536 and Public Works
Construction Contract No. CAG-10-142 (the "Project"). A true and correct copy of the General
Contract is attached hereto as Exhibit A.
C. As required by the General Contract, Surety issued a Bond numbered 69S301497,
dated December 20, 2010 ("Bond"), naming ACI as Principal and Owner as Obligee, in the
amount of$101,835.00. A true and correct copy of the Bond is attached hereto as Exhibit B.
D. By letter dated June 30, 2011, ACI voluntarily defaulted under the Bond issued
for the Project and under the General Contract. A true and correct copy of said letter is attached
hereto as Exhibit C.
E. By letter dated July 14, 2011, Owner terminated the General Contract and
asserted a claim under the Bond. A true and correct copy of said letter is attached hereto as
Exhibit D.
F. As of the date of ACI's default, certain work remained to be performed under the
General Contract("Remaining Work").
G. Surety has agreed to reasonably complete the Remaining Work with a Completion
Contractor, pursuant to the terms of the Bond, subject to the terms and conditions of this
Agreement and with the understanding by the Owner that First National is acting in its capacity
as the Surety for ACI in making arrangements for the reasonable performance and completion of
the Contract.
NOW, THEREFORE, based on the exchange of valuable consideration, including the
covenants and conditions of this Agreement, the receipt and sufficiency of which is hereby
acknowledged, and based on the Recitals set forth above which form a part of this Agreement,
Surety and Owner agree to the following.terms and conditions:
II. TERMS AND CONDITIONS
1. Recitals. The above Recitals and the Terms and Conditions herein are contractual
and not merely recitals and the agreements contained herein and consideration transferred are to
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The City of Renton and First National Insurance Company of America
satisfy the rights and obligations between Owner and Surety, except as to claims reserved by this
Agreement.
2. Incorporation of the General Contract. The General Contract is incorporated by
reference into this Agreement, including the bid documents, the General Contract Terms and
Conditions, the Plans or Drawings, and any General and Special Conditions and Specifications,
and all addenda and modifications to those documents issued in accordance with the General
Contract. The terms of the General Contract shall govern completion of the Project except to the
extent that any term thereof is specifically altered by this Agreement and/or is required to be
modified in order to reasonably complete the Project. It is agreed between Owner and Surety
that the Completion Contractor, referenced in Paragraph 6 below, chosen by Surety will be
_required to: (a) comply with the one-year maintenance bond for all work performed under the
General Contract and not just for the additional work to complete the Project; and (b) that the
Completion Contractor chosen by Surety will be contractually responsible to Owner for that one-
year warranty.
3. The Balance of the Contract Sum. First National will perform or procure the
performance of the Remaining Work relying on, among other things, the Owner's representation
that the outstanding earned and unpaid Contract funds, calculated below as the "Balance of the
Contract Sum," shall be paid to First National as set forth in Paragraph 11 below. First National
shall have no obligation to continue work if Owner fails to pay to First National-the earned
unpaid Contract funds pursuant to this Paragraph. The Owner represents that the Balance of the
Contract Sum is as follows:
-Original Contract Sum: $101,835.00
-Change Orders: TBD
Amount Paid to ACI: ($ 58,420.00)
Balance of the $43,415.00
+Amount of
Contract Sum: Change Orders
Owner agrees that the Balance of the Contract Sum is dedicated to and will be paid to Surety for
the completion of the Remaining Work pursuant to this Agreement. First National expressly
reserves the right to verify all Contract fund accountings and to request the appropriate
adjustments from the Owner and/or its representatives. The value of Change Orders issued prior
to the Effective Date will be determined pursuant to Paragraph 4 below. The Balance of the
Contract Sum shall be increased by the value of future Change Orders subsequently approved by
Owner and decreased by any offsets, liens, claims, and back charges incurred or accrued,
including any liquidated damages accrued with respect to the Takeover Completion Date as
defined herein, after the Effective Date of this Agreement. Owner hereby agrees to not withhold
any portion of the Balance of the Contract Sum on account of any delay or other costs incurred
or claims accrued by the Owner prior to the Effective Date of this Agreement. Owner hereby
agrees not to withhold any portion of the Balance of the Contract Sum for damages paid or
incurred after the Effective Date relating to or arising out of delays that occurred prior to the
'Effective Date.
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The City of Renton and First National Insurance Company of America
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4. Change Orders. The parties acknowledge that there are three (3) outstanding .
change orders on the Project that were issued prior to the Effective Date of this Agreement
("Change Orders"). Pricing for the Change Orders has not been finalized as of the Effective
Date of this Agreement. The parties agree to work together diligently to determine a mutually
acceptable amount for each of the Change Orders. The combined value of the Change Orders is
part of the Balance of the Contract Sum, to be paid by Owner to Surety as set forth in Paragraph
11 below.
5. Liens and Assignments Against General Contract Funds - Notices of Potential
Claims. Owner represents that, as of the date of this Agreement, any and all notices Owner has
received of potential claims are set forth in Exhibit E. These potential claims pre-date the
Effective Date of this Agreement and shall not be used by Owner to backcharge against the
Balance of the Contract Sum.
6. Surety to Perform Remaining Work. Surety shall be responsible for the
reasonable completion of the Remaining Work. Surety shall perform the Remaining Work
through a "Completion Contractor," which Surety shall engage pursuant to the terms of a
separate agreement. Owner hereby acknowledges that First National is not acting as a contractor
and is not licensed as a contractor in the State of Washington, and hereby agrees to fully and
forever waive and release any and all claims that Owner might allege against First National on
the grounds that First National is an unlicensed contractor for the work performed pursuant to the
Agreement.
7. Owner's Rights and Obligations Under the General Contract. Except to the extent
provided in this Agreement, Owner shall have all rights, obligations and responsibilities under
the General Contract with respect to Surety, to the reasonable extent and effect as if Surety had
executed the General Contract. Notwithstanding the forgoing, Owner shall have no right under
this Agreement and the General Contract to review or audit Surety's books, records,
correspondence or any writings concerning the Project, the Principal or any other topic.
However, Owner expressly reserves the following rights: (1) all rights to conduct audits of the
Completion Contractor; and (2) should a claim on the Project arise after the Effective Date of
this Agreement, Owner reserves all discovery rights it may have under the law.
8. Owner's Right With Respect to Changes in the Work. Owner reserves the right,
to the extent appropriate under the General Contract and this Agreement,to issue Change Orders.
The terms of these Change Orders, including attendant extensions of time and valuation of
Change Order work, shall be determined as provided in the General Contract. Surety reserves
the right to refuse to perform any extra or additional work if such work constitutes a cardinal
change under the General Contract. Owner reserves the right to dispute that the extra or
additional work constitutes a cardinal change and to immediately submit the dispute to mediation
with a mutually agreeable mediator followed, if necessary, by legal action, including but not
limited to any appropriate injunctive or other equitable relief.
9. Schedule for Completion of Remaining Work and New Completion Date.
Execution of this Agreement by Owner constitutes written Notice to Proceed to Surety to
commence performance of the Remaining Work. Owner and Surety agree that the Remaining
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The City of Renton and First National Insurance Company of America
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Work is to be Substantially Completed within thirty-five (3S) working days of the Effective Date
of this Agreement, and Finally Completed within forty (40) working days of the Effective Date
of this Agreement (the "Takeover Completion Date"). In addition, Surety through its
Completion Contractor, will within seven (7) days of the commencement of construction provide
a critical path schedule for the completion of the Remaining Work, subject to Owner's written
acceptance, not to be unreasonably withheld. Surety shall have no obligation to continue work if
Owner fails to pay to Surety the earned and unpaid Contract funds pursuant to Paragraph 3
herein. Owner hereby waives all liquidated damages incurred by ACI or Surety before the
Takeover Completion Date. Owner agrees to grant to Surety the full benefit of whatever
extensions of time and other associated relief, including for excusable delays, which are
appropriate under the General Contract, with respect to performance of this.Agreement. Neither
party hereto waives any right it may have or may acquire in the future to claim any delay or
liquidated damages with respect to the Takeover Completion Date.
10. Completion Contractor. The Completion Contractor shall be a contractor to the
Surety, and no contractual relationship shall exist between Owner and Completion Contractor
pursuant to this Agreement. The Completion Contractor shall provide all insurances required
under the General Contract. The Completion Contractor shall not be required to procure new
surety bonds identifying the Owner as obligee. Owner acknowledges that, subject to the terms of
the General Contract, the Completion Contractor is authorized to make routine day-to-day
decisions regarding the operation and manner of performing the Remaining Work, but does not
have authority to: (i) agree to any changes in the General Contract or Remaining Work other
than design changes or clarifications that do not increase the Project's cost nor extend its
schedule; (ii) agree to any Change Orders; (iii) agree to any back charges or deductions of any
nature; (iv) agree to any schedule changes; or (v) agree to any adjustments in the General
Contract amount or Remaining Work other than design changes or clarifications that do not
increase the Project's cost nor extend its schedule, without the Surety's prior express written
consent which shall be delivered to Owner as a condition precedent to the Completion Contractor
negotiating items (i) through (v), such consent not to be unreasonably withheld. The Remaining
Work shall be subject to inspection and acceptance by the Owner and applicable federal, state
and local agencies with jurisdiction, as provided in the General Contract. The Owner shall
forward concurrently to Surety (by electronic mail, as well as U.S Mail), a copy of all its written
communications directed to the Completion Contractor.
11. Payments to Surety/Penal Amount. Payment to Surety will be made by Owner
according to the timing and application procedures set forth in the General Contract. All
payments shall be made directly to Surety by check payable to Surety, at the address stated in
Paragraph 16 of this Agreement. However, Owner shall make such payments without admitting
any liability therefor and subject to its reservation of all rights against Surety and ACI as set
forth in this Agreement. .
If the Balance of the Contract Sum, less any offsets, liens and back charges incurred or claims
accrued after the effective date of this Agreement, including any liquidated damages accrued
with respect to the Takeover Completion Date and as increased by any Change Orders, shall be
entirely expended before the completion of the Remaining Work, Surety agrees to expend its
own funds as necessary, not to exceed the. penal sum of the Performance Bond, to pay for
.completion of the Remaining Work. All payments made by Surety for the Remaining Work after
Takeover Agreement—Westview Lift Station Upgrades Page 4 of 8
The City of Renton and First National Insurance Company of America
the Effective Date of this Agreement that are not offset by payment from Owner to Surety under
the General Contract and this Agreement will be credited against the penal amount of the Bond.
Nothing in this Agreement constitutes a waiver of such penal amount or an increase in the
liability of the Surety under the Bond.
Owner acknowledges that Surety's performance obligation under the Bond is expressly limited
to expenditure of the penal amount of the Bond reduced by amounts Surety pays for the
Remaining Work and all loss, costs and expenses of Surety in connection with the Project, over
and above the amount Owner pays to Surety. For each dollar the Surety so expends for the
Remaining Work and all loss, costs and expenses of Surety in connection with the Project (over
and above amounts paid by Owner to Surety), the Surety shall receive a corresponding dollar for
dollar reduction in the penal amount of the Bond. If, out of its own funds, the Surety either
expends, or is committed to expend,the full penal amount of the Bond for any one or more of the
following: (i) for work completed under the General Contract; or (ii) for work in progress under
the General Contract, then the Surety shall have no further obligation of any description to
Owner arising out of, or in connection with, the Bond, and Surety's completion of the work, at
the Surety's option, will cease. In such case, the Owner will remain obligated to pay Surety all
outstanding amounts due under the General Contract, or this Agreement, including retention,
notwithstanding the Surety ceasing work, subject to the Owner's rights to withhold funds per this
Agreement and the General Contract and applicable law and subject to Owner's reservation of all
rights to make claims against the Surety pursuant to Paragraph 3 hereof.
12. Payment Claims. The Bond shall remain in full force and effect in accordance
with its terms and provisions. The total liability of the Surety under the Bond is limited to and
shall not exceed the penal amount of the Bond in the amount of$101,835.00. For each dollar the
Surety expends pursuant to the Bond, the Surety shall receive a corresponding dollar-for-dollar
reduction in the penal amount of the Bond. In the event the Surety expends, out of its own funds,
the full penal amount of the Bond in payments to valid claimants of the Principal except as
otherwise set forth herein, Surety shall have no further obligation of any description arising out
of, or in connection with the Bond. All payments made in the future to valid claimants of
Principal will be credited against the penal amount of the Bond.
Surety agrees to investigate all proper Bond claims, but shall have the right to settle,
compromise, defend, appeal, pay or dispute such claims as it, in its sole and complete discretion,
may deem appropriate. In no event shall the Owner withhold any portion of the Balance of the
Contract Sum, on account of claims,liens, suits or demands by any person or entity furnishing or
alleging to have furnished labor and/or materials, except as set forth in the General Contract as
modified by this Agreement or as allowed by law.
13. Payment Requisitions. Surety, through its Completion Contractor, shall submit to
Owner whatever information or documentation is required regarding the work performed under
the General Contract, and stored materials, to conform and support the requisition process and
schedule established under the General Contract. Owner recognizes that Surety shall be
completing the Remaining Work through the services of the Completion Contractor.
Accordingly, Owner shall accept the Completion Contractor's representations and certifications
with respect to all aspects of the work,progress of the work, quality of the work, conformance of
the work to the requirements of the General Contract, payments to others, warranty and
Takeover Agreement—Westview Lift Station Upgrades Page 5 of 8
The City of Renton and First National Insurance Company of America
maintenance of the work, and all other matters pertinent to the General Contract, wherever such
representations are required by the General Contract, as if those representations had been made
by Surety, since Surety may have no personal knowledge of such matters.
14. Completion Contractor Claims. Owner agrees that, at Surety's sole option,
Completion Contractor may pursue any claims it may have against Owner that accrue after the
Effective Date of this Agreement with respect to its performance of the Remaining Work,
including but not limited to claims for extra work, delays, accelerations or disruptions, in its.own
name and for its own benefit directly against the .Owner. Such claims shall be subject to all
claims resolution terms of the General Contract, including any.conditions precedent to litigation
required thereby. Surety shall not be obligated to defend, indemnify or hold harmless Owner
from any such claim the Completion Contractor may have in the future against Owner.
15. No Offsets Against Payments to Surety With Respect to Claims Against
Retainage Funds. Owner shall not withhold or seek offset against funds which are due or
become due to Surety and which are held in respect of claims against retainage funds received by
Owner upon the Surety's resolution of such claims or through the issuance of Release Bonds.
. 16. Satisfaction of Surety's Performance Obligation. Surety's satisfaction of its
obligations under the General Contract, the Bond and this Agreement or Surety's expenditure of
the Bond Penal Amount, whichever comes first, shall satisfy Surety's performance obligations
under the General Contract, its Bond and this Agreement. Owner represents that Principal would
have been required to complete all of its obligations under the General Contract had Principal not
been declared to be in default and that, prior to the date of this Agreement, Owner had not made
any agreement with Principal that any item of work included in the General Contract would not
have to be performed.
17. Notices. All notices and correspondence to Owner shall be mailed certified mail,
return receipt requested, or overnight mail,with a copy by facsimile transmission,to:
John D. Hobson
Wastewater Utility Engineer
The City of Renton
Renton City Hall, 5th Floor
1055 South Grady Way
Renton, Washington 98057-3232
E:jhobson @rentonwa.gov
All notices and correspondence to Surety shall be mailed certified mail, return receipt requested,
or overnight mail, with a copy by email transmission to:
Jeff Olson
Home Office Counsel, Surety Claims
First National Insurance Company of America
P. O. Box 34670
Seattle, Washington 98124-1670
E: Jef£Olson @LibertyMutual.com
Takeover Agreement—Westview Lift Station Upgrades Page 6 of 8
The City of Renton and First National Insurance Company of America
With copy to:
Gary Shevik
Surety Claim Engineer
First National Insurance Company of America
P. O. Box 34670
Seattle, Washington 98124-1670
E: Gary.Shevik @LibertyMutual.com
18. No Third-Party Rights. Nothing in this Agreement shall be deemed to create any
rights in favor of, or to inure to the benefit of, any third parties, or to waive or release any
defense or limitation against third party claims.
19. All Claims Referred to Surety. Owner recognizes that Surety may be liable to
unpaid suppliers and subcontractors of Principal. Other than as required by law, Owner agrees to
make no representations or promises of payment to these suppliers and subcontractors and to
refer all inquiries to Surety.
20. Surety's Performance Rights Confirmed. Nothing shall limit Surety's rights as a
Completing Surety under the General Contract and applicable law. Owner hereby recognizes
those rights, including the right of equitable subrogation. Further, Owner recognizes Surety's
rights as a performing Surety under the General Contract, including the right to additional
compensation or damages where allowed or appropriate under the General Contract or applicable
law for claims or matters arising after the date of this Agreement. The Owner expressly agrees
and acknowledges: (i) that Surety is entering into this Agreement not as a contractor, but as a
means of satisfying the Surety's performance bond obligations; (ii) that the Surety has provided
to Owner the Completing Contractor, a licensed contractor., to finish the Project; and (iii) that the
Owner hereby forever releases and discharges any and all claims that the Surety is an unlicensed
contractor.
21. Agreement Binding on Successors. This Agreement shall be binding upon the
successors and assignees of Surety and Owner. Surety shall not assign this Agreement without
the written consent of Owner. Assignment without such written consent shall be void.
22. No Modification Except in Writing_ This Agreement cannot be modified except
in a writing signed by both Owner and Surety.
23. This Agreement Controls. In case of conflict between the provisions of this
Agreement and the provisions of the General Contract and/or the Bond, this Agreement shall
control. Further, this Agreement, the General Contract and the Bond constitute the entire
Agreement between Owner and Surety and, together, supersede all prior negotiations,
representations, offers, other writings and oral statements of every description.
24. Construction and Application of Law. The parties stipulate that this Agreement
and all agreements or documents incorporated herein shall not be subject to the rule of
construction that a written agreement is construed against the party preparing or drafting that
Agreement. The parties also agree that this Agreement and its performance shall be governed by
and construed in accordance with the laws of the State of Washington.
Takeover Agreement—Westview Lift Station Upgrades Page 7 of 8
The City of Renton and First National Insurance Company of America
25. Validily. Invalidity of any portion or provisions of the General Contract or this
Agreement by reason of the laws of any State or for any other reason shall not render any other
provisions or portions of the General Contract or this Agreement
26. No Waiver. The failure of either party to exercise in any respect a right provided
for in this Agreement shall not be deemed to be a subsequent waiver of the same right or of any
other right.
27. Counterparts/Email/Facsimile. This Agreement may be executed in any number
of counterparts each of which, when executed and delivered, shall be deemed to be an original
with all the counterparts constituting but one and the same instrument. The execution of this
Agreement by any parties hereto will not become effective until the Agreement is approved by
Owner's governing board and until counterparts hereof have been executed by all parties.
Additionally, scanned electronic or facsimile signatures shall bind the undersigned.
28. Reservation of Rights. Notwithstanding any contrary statement or provision of
this Agreement, nothing contained herein nor any payments made pursuant hereto nor any
performance hereunder shall constitute a waiver of any claims by any party to this Agreement.
WHEREFORE, the parties have executed this Agreement by their authorized
representatives. This Agreement is effective as of the last date written below.
T Y OF RENTON
By: Z
Dated: l Printed Name: Gregg Zimmerman 7
Its: Public Works Administrator
F T TI NA SURANCE
O MERICA
By:
Dated: U 4 �� Printed N me: ��5c
Its:
Seattle 2673.2 103023.016
Takeover Agreement—Westview Lift Station Upgrades Page 8 of 8
The City of Renton and First National Insurance Company of America
•
J1,01017-
CONTRACTS OTHER THAN FEDERAL-AID FHWA
TIIIS AGREEMENT, made and entered into this /l'A day of by and
between THE CITY OF RENTON, Washington, a municipal c oration f the State of
Washington, hereinafter referred to as "CITY" and Advanced Construction, Inc.
hereinafter referred to as "CONTRACTOR."
WITNESSETH:
1) The Contractor shall within the time stipulated, (to-wit: within Eighty (80) working days
from date of commencement hereof as required by the Contract, of which this agreement is
a component part) perform all the work and services required to be performed, and provide
and furnish all of the labor, materials, appliances, machines, tools, equipment, utility and
transportation services necessary to perform the Contract, and shall complete the
construction and installation work in a workmanlike manner, in connection with the City's
Project(identified as No. CAG-10-142 for improvement by construction and installation o£
Westview Lift Station Upgrades.
Work as described in"Scope of Work"included herein.
All the foregoing shall be timely performed,furnished, constructed, installed and completed
in strict conformity with the plans and specifications, including any and all addenda issued
by the City and all other documents hereinafter enumerated, and in full compliance with all
applicable codes, ordinances and regulations of the City of Renton and any other
governmental authority having jurisdiction thereover. It is further agreed and stipulated that
all of said Iabor, materials, appliances, machines, tools, equipment and services shall be
furnished and the construction installation performed and completed to the satisfaction and
the approval of the City's Public Works Director as being in such conformity with the plans,
specifications and all requirements of or arising under the Contract. The Contractor agrees
to use recycled materials whenever practicable.
2) The aforesaid Contract, entered into by the acceptance of the Contractor's bid and signing of
this agreement, consists of the following documents, all of which are component parts of
said Contract and as fully a part thereof as if herein set out in full, and if not attached, as if
hereto attached.
a) This Agreement
b) Instruction to Bidders
c) Bid Proposal
d) Specifications
e) Maps and Plans
f) Bid
g) Advertisement for Bids
h) Special Provisions, if any
i) Technical Specifications, if any
1 Cl-2Cf9
3) If the Contractor refuses or fails to prosecute the work or any part thereof, with such
diligence as will insure its completion within the time specified in this Contract, or any
extension in writing thereof, or fails to complete said work with such time, or if the
Contractor shall be adjudged a bankrupt, or if he should make a general assignment for the
benefit of his creditors, or if a receiver shall be appointed on account of the Contractor's
insolvency, or if he or any of his subcontractors should violate any of the provisions of this
Contract, the City may then serve written notice upon him and his surety of its intention to
terminate the Contract, and unless within ten(10) days after the serving of such notice, such
violation or non-compliance of any provision of the Contract shall cease and satisfactory
arrangement for the correction thereof be made, this Contract, shall, upon the expiration of
said ten (10) day period, cease and terminate in every respect. In the event of any such
termination, the City shall immediately serve written notice thereof upon the surety and the
Contractor and the surety shall have the right to take over and perform the Contract,
provided, however, that if the surety within fifteen (15) days after the serving upon it of
such notice of termination does not perform the Contract or does not commence
performance thereof, the City itself may take over the work under the Contract and
prosecute the same to completion by Contract or by any other method it may deem
advisable, for the account and at the expense of the Contractor, and his surety shall be liable
to the City for any excess cost or other damages occasioned the City thereby. In such event,
the City, if it so elects, may, without liability for so doing, take possession of and utilize in
completing said Contract such materials, machinery, appliances, equipment, plants and
other properties belonging to the Contractor as may be on site of the project and useful
therein.
4) The foregoing provisions are in addition to and not in limitation of any other rights or
remedies available to the City.
5) Contractor agrees and covenants to hold and save the City, its officers, agents,
representatives and employees harmless and to promptly indemnify same from and against
any and all claims, actions, damages, liability of every type and nature including all costs
and legal expenses incurred by reason of any work arising under or in connection with the
Contract to be performed hereunder, including loss of life, personal injury and/or damage to
property arising from or out of any occurrence, omission or activity upon, on or about the
premises worked upon or in any way relating to this Contract. This hold harmless and
indemnification provision shall likewise apply for or on account of any patented or
unpatented invention, process, article or,appliance manufactured for use in the performance
of the Contract, including its use by the City, unless otherwise specifically provided for in
this Contract.
The Contractor agrees.to name the City as an additional insured on a noncontributory
primary basis. In the event the City shall, without fault on its part, be made a party to any
litigation commenced by or against Contractor, then Contractor shall proceed and hold the
City harmless and he shall pay all costs,.expenses and reasonable attorney's fees incurred or
paid by the City in connection with such litigation. Furthermore, Contractor agrees to pay
all costs, expenses and reasonable attorney's fees that may be incurred or paid by City in the
enforcement of any of the covenants,provisions and agreements hereunder.
Nothing herein shall require the Contractor to indemnify the City against and hold harmless
the City, from claims, demands or suits based solely.upon the conduct of the City, its
officers or employees and provided further that if claims or suits are caused by or result
from the concurrent negligence of(a)the Contractor's agents or employees and(b)the City,
2 C 1-2009
its agents, officers and employees, and involves those actions covered by RCW 4.24.115,
this indemnity provision with respect to claims or suits based upon such concurrent
negligence shall be valid and enforceable only to the extent of the Contractor's negligence
or the negligence of the Contractor's agents or employees.
Should a court of competent jurisdiction determine that this agreement is subject to RCW
4.24.115,then,in the event of liability for damages arising out of bodily injury to persons or
damages to property caused by or resulting from the concurrent negligence of the contractor
and the city, its officers, officials, employees and volunteers, the contractor's liability
hereunder shall be only to the extent of the contractor's negligence. It is further specifically
and expressly understood that the indemnification provided herein constitute the
contractor''s waiver of immunity under the Industrial Insurance Act, Title 51 RCW, solely
for the purposes of this indemnification. This waiver has been mutually negotiated by the
parties. The provisions of this section shall survive the expiration or termination of this
agreement.
6) Any notice from one party to the other party under the Contr act shall be in writing and shall
be dated and signed by the party giving such notice or by its duly authorized representative
of such party. Any such notice as heretofore specified shall be given by personal delivery
thereof or by depositing same in the United States mail, postage prepaid, certified or
registered mail.
7) The Contractor shall commence performance of the Contract no later than 10 calendar days
after Contract final execution, and shall complete the full performance of the Contract not
later than Eighty (80) working days from the date of commencement. For each and every
working day of delay after the established day of completion, it is hereby stipulated and
agreed that the damages to the City occasioned by said delay will be the sum of per Section
1-08.9 of Standard Specifications as liquidated damages(and not as a penalty) for each such
day, which shall be paid by the.Contractor to the City.
8) Neither the final certificate of payment not any provision in the Contract nor partial or
entire use of any installation provided for by this Contract shall relieve the Contractor of
liability in respect to any warranties or responsibility for faulty materials or workmanship.
The Contractor shall be under the duty to remedy any defects in the work and pay for any
damage to other work resulting therefrom which shall appear within the period of one (1)
year from the date of final acceptance of the work, unless a longer period is specified. The
City will give notice of observed defects as heretofore specified with reasonable promptness
after discovery thereof, and Contractor shall be obligated to take immediate steps to correct
and remedy any such defect,fault or breach at the sole cost and expense of Contractor.
Defective or Unauthorized Work. The City reserves its right to withhold payment from
Contractor for any defective or unauthorized work. Defective or unauthorized work
includes,without limitation: work and materials that do not conform to the requirements of
this Agreement; and extra work and materials famished without the City's written approval.
If Contractor is unable, for any reason, to satisfactorily complete any portion of the work,
the City may complete the work by contract or otherwise, and Contractor shall be liable to
the City for any additional costs incurred by the City. "Additional costs" shall mean all
reasonable costs, including legal costs and attorney fees, incurred by the City beyond the
maximum Contract price specified above. The City further reserves its right to deduct the
cost to complete the Contract work, including any Additional Costs, from any and all
amounts due or to become due the Contractor.
3 C 1-2009
The Contractor agrees the above one year limitation shall not exclude or diminish the City's
rights under any law to obtain damages and recover costs resulting from defective and .
unauthorized work discovered after one year but prior to the expiration of the legal time
period set forth in RCW 4.16.040 limiting actions upon a contract in writing; or liability
expressed or implied arising out of a written agreement.
Final Payment: Waiver of Claims. THE CONTRACTOR'S ACCEPTANCE OF FINAL
PAYMENT (EXCLUDING WITHHELD RETAINAGE) SHALL CONSTITUTE A
WAIVER OF CONTRACTOR'S CLAIMS, EXCEPT THOSE PREVIOUSLY AND
PROPERLY MADE AND IDENTIFIED BY CONTRACTOR AS UNSETTLED AT THE
TIME FINAL PAYMENT IS MADE AND ACCEPTED.
9) The Contractor and each subcontractor, if any, shall submit to the City such schedules of
quantities and costs, progress schedules, payrolls, reports, estimates, records and
miscellaneous data pertaining to the Contract as may be requested by the City from time to
time.
10) The Contractor shall furnish a surety bond or bonds as security for the faithful performance
of the Contract, including the payment of all persons and,firms performing labor on the
construction project under this Contract or furnishing materials in connection with this
Contract; said bond to be in the full amount of the Contract price as specified in Paragraph
12. The surety or sureties on such bond or bonds must be duly licensed as a surety in the
State of Washington.
11) The Contractor shall verify, when submitting first payment invoice and annually thereafter,
possession of a current City of Renton business license while conducting work for the City.
The Contractor shall require, and provide verification upon request, that all subcontractors
participating in a City project possess a current City of Renton business license. The
Contractor shall provide, and obtain City approval of, a traffic control plan prior to
conducting work in City right-of-way.
12) The total amount of this contract is the sum of $101,835.00
numbers
One Hundred One Thousand EiLht Hundred Thirty Five and xx/100
written words
including Washington State Sales Tax. Payments will be made to Contractor as specified in
the "Special Provisions" of this Contract.
13) INDEPENDENT CONTRACTOR. The parties intend that an Independent Contractor-
Employer Relationship will be created by this Agreement and that the Contractor has the
ability to control and direct the performance and details of its work, the City being
interested only in the results obtained under this Agreement.
14) LIMITATION OF ACTIONS. CONTRACTOR MUST, IN ANY EVENT,. FILE ANY
LAWSUIT ARISING FROM OR CONNECTED WITH THIS AGREEMENT WITHIN
120 CALENDAR DAYS FROM THE DATE THE CONTRACT WORK IS COMPLETE
OR CONTRACTOR'S ABILITY TO FILE THAT CLAIM OR SUIT SHALL BE
FOREVER BARRED. THIS SECTION FURTHER LIMITS ANY APPLICABLE
STATUTORY LIMITATIONS PERIOD.
15) Non-Waiver of Breach. The failure of the City to insist upon strict performance of any of
the covenants and agreements contained in this Agreement, or to exercise any option
4 CI-2009
conferred by this Agreement in one or more instances shall not be construed to be a waiver
or.relinquishment of those covenants, agreements or options, and the same shall be and
remain in full force and effect.
16) Written Notice. All communications regarding this Agreement shall be sent to the parties at
the addresses listed on the signature page of the Agreement, unless noted to the contrary.
Any written notice hereunder shall become effective three (3)business days after the date of
mailing by registered or certified mail, and shall be deemed sufficiently given if sent to the
addressee at the address stated in this Agreement or such other.address as may be hereafter
specified in writing.
17) Assignment. Any assignment of this Agreement by either party without the written consent
of the non-assigning party shall be void. If the non-assigning party gives its consent to any
assignment, the terms of this Agreement shall continue in full force and effect and no
further assignment shall be made without additional written consent.
18) Modification. No waiver, alteration, or modification of any of the provisions of this
Agreement shall be binding unless in writing and signed by a duly authorized representative
of the city and Contractor.
19) Compliance with Laws. The Contractor agrees to comply with all federal, state, and
municipal laws, rules, and regulations that are now effective or in the future become
applicable to Contractor's business, equipment, and personnel engaged in operations
covered by this Agreement or accruing out of the performance of those operations.
20) Counterparts. This Agreement may be executed in any number of counterparts, each of
which shall constitute an original, and all of which will together constitute this one
Agreement.
IN WITNESS WHEREOF, the City has caused these presents 'to be signed by its Mayor and
attested by its City Clerk and the Contractor has hereunto set his hand and seal the day and year
first above-written. N%0111111111//
CONTRAC CITY OF RNTON
President/Partner/Owner' � tigskl�tGt.
2002 �```�. ayor Denis ATTEST
Sedetary ' Bonnie I . Walton, City Clerk
dba Advanced Construction, Inc.
Firm Name
check one
® Individual ® Partnership Corporation Incorporated in }�
5 C I-2009
tit 7 tt� n
•
BOND TO THE CITY OF RENTON
Bond No. 69S301497
KNOW ALL MEN BY THESE PRESENTS:
That we,the undersigned Advanced Construction, Inc.
I
as principal, and First National Insurance Company Oto �Sff organized and existing
under the laws of the State of Washington as a surety corporation, and qualified
under the laws of the State of Washington to become surety upon bonds of contractors with municipal
corporations, as surety are jointly and severally held and firmly bound to the City of Renton in the
penal sum of$ for the payment of which sum on demand we bind ourselves and our
successors,heirs, a ministrators or person representatives, as the case may be.
*One Hundred One Thousand Eight Hundred Thirty-Five Dollars and No/100
This obligation is entered into in pursuance of the statutes of the State of Washington, the Ordinance
of the.City of Renton.
Dated atMukilteo , Washington,this // day of , 201
Nevertheless,the conditions of the above obligation are such that:
WHEREAS, under and pursuant to Public Works Construction Contract CAG-10-142 providing for
construction of Westview Lift Station Upgrades,
(project name)
the principal is required to furnish a bond for the faithful performance of the contract; and
WHEREAS, the principal has accepted, or is about to accept, the contract, and undertake to perform
the work therein provided for in the manner and within the time set forth;
NOW, THEREFORE, if the principal shall faithfully perform all of the provisions of said contract in
the manner and within the time therein set forth, or within such extensions of time as may be granted
under said contract, and shall pay all laborers, mechanics, subcontractors and materialmen, and all
persons who shall supply said principal or subcontractors with provisions and supplies for the
carrying on of said work, and shall hold said City of Renton harmless from any loss or damage
occasioned to any person or property by reason of any carelessness or negligence on the part of said
principal, or any subcontractor in the performance of said work, and shall indemnify and hold the City
of Renton harmless from any damage or expense by reason of failure of performance as specified in
.the contract or from defects appearing or developing in the material or workmanship provided or
performed under the contract within a period of one year after its acceptance thereof by the City of
Renton, then and in that event this obligat�gtl,jkp11 be void; but otherwise it shall be and remain in full
force and effect. e��o��GO N S;
Advanced Construction„� Irz V;' CORPp G��'First National Insurance Company
-
Principal �j F; p:Surety of America
z /
aj
Signature pis �NGS . .r?�: Signature
Theresa A. Lamb, Attorney-in-Fact
Title Title
HAFile Sys\WWP-WasteWater\WWP-27-3536 Westview Lift Station Upa ades\BID INFO\BOND Westview Lift Station Upp ades.DOC
{ L II
POWER First National Insurance Company of America
1001 4th Avenue
OF ATTORNEY Suite 1700
Seattle,WA 98154
KNOW ALL BY THESE PRESENTS: No, 7351
That FIRST NATIONAL INSURANCE COMPANY OF AMERICA,a Washington corporation,does hereby appoint
************STEVEN K.BUSH;BRANDON K.BUSH;M.J.COTTON;JIM W.DOYLE;CHAD M.EPPLE;JULIE M.
GLOVER,-DARLENE JAKIELSKI;JIM S.KUICH;THERESA A.LAMB;MICHAEL A.MURPHY,-NANCY J.OSBORNE;
ANDY D.PRILL;S.M.SCOTT;STEVE WAGNER;Bothell,Washington************"*************************
its true and lawful attomey(s)-in-fact, with full authority to execute on behalf of the company fidelity and surety bonds or
undertakings and other documents of a similar character issued by the company in the course of its business, and to bind FIRST
NATIONAL INSURANCE COMPANY OF AMERICA thereby as fully as if such instruments had been duly executed by its regularly
elected officers at its home office.
IN WITNESS WHEREOF,FIRST NATIONAL INSURANCE COMPANY OF AMERICA has executed and attested these presents
this 21st day of March 2009
Dexter R.Legg,Secretary Timothy A.Mikolajewski,Vice President
CERTIFICATE
Extract from the By-Laws of FIRST NATIONAL INSURANCE COMPANY OF AMERICA:
"Article V, Section 13. -FIDELITY AND SURETY BONDS ...the President, any Vice President,the Secretary, and any Assistant
Vice President appointed for that purpose by the officer in charge of surety operations, shall each have authority to appoint
individuals as attorneys-in-fact or under other appropriate titles with authority to execute on behalf of the company fidelity and surety
bonds and other documents of similar character issued by the company in the course of its business...On any instrument making or
evidencing such appointment,the signatures may be affixed by facsimile.On any instrument conferring such authority or on any bond or
undertaking of the company, the seal, or a facsimile thereof, may be impressed or affixed or in any other manner reproduced;
provided,however,that the seal shall not be necessary to the validity of any such instrument or undertaking."
Extract from a Resolution of the Board of Directors of
FIRST NATIONAL INSURANCE COMPANY OF AMERICA adopted July 28,1970.
"On any certificate executed by the Secretary or an assistant secretary of the Company setting out,
(I) The provisions of Article V,Section 13 of the By-Laws,and
(ii) A copy of the power-of-attorney appointment,executed pursuant thereto,and
(iii) Certifying that said power-of-attorney appointment is in full force and effect,
the signature of the certifying officer may be by facsimile,and the seal of the Company may be a facsimile thereof."
I, Dexter R.Legg ,Secretary of FIRST NATIONAL INSURANCE COMPANY OF AMERICA,do hereby certify that the
foregoing extracts of the By-Laws and of a Resolution of the Board of Directors of this corporation, and of a Power of Attorney
issued pursuant thereto, are true and correct, and that both the By-Laws,the Resolution and the Power of Attorney are still in full force
and effect.
IN WITNESS WHEREOF,I have hereunto set my hand and affixed the facsimile seal ofl said
�lcorporation
this day of Ll'.IV�[7��L
�aa�ttceC
s� ptx*
SEAL
Y y 1928tieS
Dexter R.Legg,Secretary
S-10491DF 3/09 + s
WEB PDF
JUL ,J
June 30, 2011 CONSTRUCTION INC.
' 4640 Campus Place
Sulte 150
VIA CERTIFIED MAIL Mukllteo,WA 98275
Office 425.493.1826
City of Renton Fax 425.493.1827
Attn: John Hobson WA#ADVANC1973KE
1055 S. Grady Way, 5h Floor
Renton,Washington 98275
Re: Principal: Advanced Construction,Inc.
Obligee: City of Renton
Project: Westview Lift Station Upgrades
Project No. CAG-10-142
Dear Mr. Hobson:
We write to advise you that Advanced Construction, Inca ("ACI") is in default under the
terms of its contract with you ("Contract") on the above-referenced project ("Project"). ACI
is fmancially unable to complete the performance of the Project work, or otherwise comply
with its contractual obligations. Therefore, ACI hereby irrevocably and voluntarily abandons
and terminates the -Contract, effective upon your receipt of this letter. First National
Insurance Company of America ("FNICA"), the surety on the above-referenced bond, will
contact you shortly to discuss this matter in greater detail.
In the meantime, should you have any questions, please feel free to contact FNICA's
attorney, Todd W. Blischke, Esq. of Watt, Tieder, Hoffar & Fitzgerald L.L.P. at (206) 204-
5800 with any questions you might have.
Sincerely,
ADVANCED CONSTRUCTION,INC.
A.J. Smith
cc: Todd W. Blischke, Esq.
Denis Law Clay Of:-
Mayor _
Public Works Department=Gregg Zimmerman,R E.,Administrator
July 14, 2011
VIA CERTIFIED MAIL
Mr. Jeff Olsen
Liberty Mutual Surety—Western Region
P.O. Box 34670
Seattle, WA 98124
RE: CAG 10-142 WESTVIEW LIFT STATION UPGRADE
DEFAULT OF CONTRACT BY ADVANCED CONSTRUCTION, INC.
Dear Mr. Olsen:
This letter shall serve as notice, per Section 3 of the Contract for the Westview Lift
Station Upgrade project that the City is terminating its contract with Advanced
Construction, Inc. This notice is provided as a result of the letter submitted to the City
by Advanced Construction, Inc., dated June 30, 2011 (see attached), notifying the City
that it was not financially able to complete its contract work and abandoning the
contract.
Please consider this letter the City's claim under the performance bond for Advanced
Construction, Inc. It is in the City's interest to work with Liberty Mutual Surety to find an
appropriate and swift solution to complete the outstanding work for this contract.
Please contact me at 425-430-7212, if you have any questions regarding this matter.
Sinc el
Firis n en
Wastewater Utility Supervisor
Attachment
cc: Gregg Zimmerman,P.E.,Public Works Administrator
Lys Hornsby,P.E.,Utility Systems Director
Mark Barber,Assistant City Attorney
John Hobson,Wastewater Project Manager
H:\File Sys\WWP-WasteWater\WWP-27-3536 Westview Lift Station Upgrades\CONSTRUCTION\Surety Letter.doc\DMCtp
Renton City Hall • 1055 South Grady Way• Renton,Washington 98057 •rentonwa.gov
r
CfTY OF RENTON
Public Works Bond Claim
JUL 21 2011
RECEIVED
CITY CLERK'S OFFICE
To: Liberty Mutual, First National Insurance To: Advanced Construction Q�l Scc j ,lf�
Of America 4640 Campus Place, Ste. 150
10014th Ave. #1700 Mukilteo, WA 98275
Seattle, WA 98154
Certified Mail No. 7010 2780 0002 4008 5668 Certified Mail No: 7010 2780 0002 4008 5682
Jo4kt 1�;�Scvj
BOND NO: 695301497 for Public Works Contract: CAG-10-142 CAL--lo
CLAIMANT: Security Contractor Services, Inc.
5339 Jackson Street
North Highlands, CA 95660 .
RE: Westview Lift Station Upgrades, Contract No. CAG-10-142
NOTICE is hereby made that the above claimant provided temporary fencing material for the
above project under contract with Advanced Construction.(contractor) under direct contract
with The City of Renton(owner).
The temporary fencing material was provided at the request of Advanced Construction, 4640
Campus Place, Ste. 150, Mukilteo, WA 98275.
The total value of the service agreed to be furnished, and actually furnished is $509.18
through 7/5/11; payments received to date are in the sum of$ -0-.There remains due and
owing$509.18 plus interest of$23.10 for total owing$532.28. Interest continues to accrue
at the daily rate of$q.31
The undersigned hereby demands payment on the above bond in the sum of not less
than $532.28.
Dated: July 15, 2011 Security Contractor Services, Inc.
By:
Laurie Sullivan, Credit Manager
(916) 692-1434
cc: City of Renton
1055 S. Grady Way
Renton, WA 98057
Certified Mail No. 7010 2780 0002 4008 5675
t
CITY OF RENTON
JUN 2 4 2011
NOTICE OF CLAIM RECEIVED
CITY CLERK'S OFFICE
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
TO: The City of Renton
Renton City Hall
1055 S. Grady Way
Renton, WA 98057
NOTICE IS HEREBY GIVEN that the undersigned Service Electric Co. Inc. has a claim
in the principal sum of seven thousand six hundred dollars and 00/100 ($7,600.00) plus interest,
attorney fees, and other costs against the retained percentage held from Advanced Construction,
Inc. and against bond number 69S301497, issued to Advanced Construction, Inc. as principal by
First National Insurance Company of America as surety on the Westview Lift Station Upgrades
project for electrical services and materials Service Electric Co., Inc. provided at the request of
Advanced Construction, Inc.
DATED this ZZ day of June, 2011.
Name of Claimant Firm: Service Electric Co., Inc.
Address:. 1615 First Street
A 98291
Signature of Owner or Officer: ,;Snohonus
Title: President
Contractor Registration No.: SERVIEC564RU
cc: First National Insurance Company of America, insurer by CERTIFIED MAIL
Advanced Construction, Inc. by CERTIFIED MAIL
4
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