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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 Takeover Agreement—Westview Lift Station Upgrades Page 1 of 8 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. Takeover Agreement—Westview Lift Station Upgrades Page 2 of 8 The City of Renton and First National Insurance Company of America r 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 Takeover Agreement—Westview Lift Station Upgrades Page 3.of 8 The City of Renton and First National Insurance Company of America r ' 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 i i V L /Z,/c7