Full Text
CONSTRUCTION AGREEMENT SOUTHWEST SEWER TRUNK LINE PHASE III BETWEEN CITY OF MOSCOW, IDAHO AND BIG SKY DEVELOPMENT, INC. THIS CONSTRUCTION AGREEMENT BETWEEN CITY OF MOSCOW, IDAHO AND BIG SKX _ DX;'ELOPMENT, INC. (hereinafter "Agreement") dated this day of , 2013, by and between the City of Moscow, Idaho, a municipal corporation of the State of Idaho, 206 East Third Street, Moscow, Idaho, 83843 (hereinafter "City") and Big Sky Development, Inc., 10063 North Navion Drive, Hayden, Idaho, 83835 (hereinafter "Contractor"); WITNESSETH: WHEREAS, pursuant to the invitation of City, extended through an officially published "Advertisement for Bids", Contractor did, in accordance therewith, file with City a proposal containing an offer which was invited by said notice; and WHEREAS, City has determined that said offer was the lowest and best submitted; NOW THEREFORE, the parties to this Agreement, in consideration of the mutual covenants and stipulations set out, agree as follows: ARTICLE 1. CONTRACT DOCUMENTS The Contract Documents which comprise the entire agreement between City and Contractor concerning the work to be performed are this Agreement, pages one through five (1 through 5) and the following: 1. Advertisement for Bids; 2. Project Specifications titled: SOUTHWEST SEWER TRUNK LINE PHASE III City of Moscow Project No. 115-011 K A Project No. 212001 3. Bid/Proposal of Contractor, dated April 2 , 2013, physically attached to this Agreement (as corrected); 4. The Engineering Plans; 5. Performance and Payment Bonds and Insurance Certificates, physically attached to this Agreement; 6. Addendum No. One and Two issued prior to opening of bids, attached to this Agreement; 7. Change Orders which may be delivered or issued after the effective date of this Agreement. There are no Contract Documents other than those listed in Article 1. This Agreement may only be amended by change order as provided in the General Conditions. SOUTHWEST SEWER TRUNK LINE PHASE III CiTY AND BIG SKY DEVELOPMENT, INC. ZOis-1( PAGE I OF 5 ---PAGE BREAK--- ARTICLE2. WORK Contractor shall complete the entire work as specified, indicated and required under the Contract Documents for City project (hereinafter "Project") titled: SOUTHWEST SEWER TRUNK LINE PHASE III ARTICLE3. CONTRACT TIME/SUBSTANTIAL COMPLETION The work to be performed pursuant to this Agreement shall be substantially completed within one hundred eighty (180) calendar days after receiving the Notice to Proceed. Final Completion of all work shall be completed within fourteen (14) calendar days after receiving Substantial Completion. All work shall be completed within these described time frames unless adjustment of the contract time is made in accordance with the provisions of the Contract Documents. Contractor shall begin work in conformance with the Contract Documents and shall complete the work prior to the date of completion. ARTICLE 4. CONTRACT SUM City shall pay Contractor for completion of the Work in accordance with the Contract Documents in current funds the amount of Nine Hundred Fifty Eight Thousand Three Hundred Seventy Four Dollars ($958,374) for Base Bid (as corrected) and No Alternates. Said Contract Sum shall be paid in accordance with the Contract Documents. ARTICLE 5. INDEPENDENT CONTRACTOR The parties warrant by their signature that no employer-employee relationship is established between Contractor and City by the terms of this Agreement. It is understood by the parties hereto that Contractor is an independent contractor and as such neither it nor its employees, agents, representatives or subcontractors, if any, are employees of City for purposes of tax, retirement system, or social security (FICA) withholding. ARTICLE 6. SCOPE OF SERVICES Contractor shall perform all services required by the Contract Documents. All work shall be completed in accordance with the specifications and plans established for this Project. SOUTHWEST SEWER TRUNK LINE PHASE III CITY AND BIG SKY DEVELOPMENT, INC. PAGE20F 5 ---PAGE BREAK--- ARTICLE 7. HOLD HARMLESS/INDEMNIF ICATION In addition to other rights granted City by the Contract Documents, Contractor shall indemnify and save harmless the Engineer and City, its officers and employees, from all suits, actions, or claims of any character brought because of any injuries or damages received or sustained by any person, persons, or property on account of the operations of Contractor or its subcontractors; or on account of or in consequence of any neglect in safeguarding the work; or through use of unacceptable materials in constructing the work; or because of any act or omission, neglect, or misconduct of Contractor or its subcontractors; or because of any claims or amounts recovered from any infringements of patent, trademark or copyright; or from any claims or amounts arising or recovered under the Workmen's Compensation Act or any other law, ordinance, order or decree. ARTICLES. CONF LICT OF INTEREST Contractor covenants that it presently has no interest and will not acquire any interest, direct or indirect, in the Project which would conflict in any manner or degree with the performance of its services hereunder. Contractor further covenants that, in performing this Agreement, it will employ no person who has any such interest. Should any conflict of interest arise during the performance of this Agreement, Contractor shall immediately disclose such conflict to the Project Engineer/Engineer and City. ARTICLE9. ENTIRE AGREEMENT, MODIF ICATION AND ASSIGNABILITY This Agreement and the exhibits hereto contain the entire agreement between the parties, and no statements, promises, or inducements made by either party, or agents of either party are valid or binding unless contained herein. This Agreement may not be enlarged, modified or altered except upon written agreement signed by the parties hereto. Contractor may not subcontract or assign its rights (including the right to compensation) or duties arising hereunder other than as contemplated by the Contract Documents, without the prior written consent and express authorization of City. ARTICLE 10. ADHERENCE TO LAW REQUIRED All applicable local, state and federal statutes and regulations are hereby made a part of this Agreement and shall be adhered to at all times. Violation of any of these statutes or regulations by Contractor shall be deemed material and shall subject Contractor to termination of this Agreement for cause. No pleas of misunderstanding or ignorance on the part of Contractor will in any way serve to modify the provisions of this requirement. Contractor and its surety shall indemnify and save harmless City and its employees, agents and representatives against any claim or liability arising from or based on the violation of any such laws, codes, ordinances, or regulations, whether by Contractor, Contractor's employees, or its subcontractors. SOUTHWEST SEWER TRUNK LINE PHASE III CITY AND BIG SKY DEVELOPMENT, INC. PAGE3 OF 5 ---PAGE BREAK--- ARTICLE 11. LEGAL FEES In the event either party incurs legal expenses to enforce the terms and conditions of this Agreement, the prevailing party is entitled to recover reasonable attorney's fees and other costs and expenses, whether the same are incurred with or without suit. ARTICLE 12. SPECIAL WARRANTY Contractor warrants that nothing of monetary value has been given, promised or implied as remuneration or inducement to enter into this Agreement. Contractor further declares that no improper personal, political or social activities have been used or attempted in an effort to influence the outcome of the competition, discussion, or negotiation leading to the award of this Agreement. Any such activity by Contractor shall make this Agreement null and void. ARTICLE 13 COMMUNICATIONS Such communications as are required by this Agreement shall be satisfied by mailing or by personal delivery to the parties at the following address: Contractor: Big Sky Development, Inc. I 0063 North Navion Drive Hayden, Idaho 83835 ARTICLE 14. EXECUTION City: City Engineer City ofMoscow 206 East Third Street P O Box 9203 Moscow, Idaho 83843 IN WITNESS WHEREOF, said Contractor and the City have caused this Agreement to be executed on the day and year first above written. Contractor: By: By: SOUTHWEST SEWER TRUNK LINE PHASE Ill CITY AND BIG SKY DEVELOPMENT, INC. PAGE40F 5 ---PAGE BREAK--- State of J County of J.ut...a.L SOUTHWEST SEWER TRUNK LINE PHASE III CITY AND BIG SKY DEVELOPMENT, INC. ACKNOWLEDGMENT ) ) :ss ) NOtafYPUbliCreSillgat;\Jiidi; My commission expires: _ My Commission Expires September 24, 2018 PAGE 5 OF 5 ---PAGE BREAK--- - MOSCOW SW SEWER TRUNK LINE.PHASE lii 212001 PERFORMANCE BOND Any singular ᩙeferene;t; to Contractor, Surety, Owne{, or other party shall be considered plural where · applicable. CONTRACTOR (Name and Address): BIG SKY DEVELOPMENT, INC. . 10063 NORTH NAVION DRIVE HAYDEN, ID 83835 OWNER (Name and.Adtlress): CITY OF MOSCOW P.O. BOX 9203 MOSCOW, ID 83843 CONTRACT Effective Date of Agreement: 4117113 Amount $958,3 74. oo S1JRETY (Narrie, andAddress ofPrincipal Place oj8usinesi): NORTH AMERICAN SPECIALTY INSURANCE COMPANY 1420 FIFTH AVENUE, SUITE 2200 SEATTLE, WA 98101 Description (Name and LOcation): SOUTHWEST SEWER TRUNK LINE PHASE III, CITY OF MOSCOW PROJECT BOND B2y3e_nt·bonds t;lXeNfed _by a· CJ,U!'(l,ified surety eqpi:valent tO th'e OOWds isSiied on· the _Contrac't;:und·pay . . to.Owner ]e aiuqunG efdamages as d!!scribed':in Paragraph .S io el(cess · of't)le.l3,run,oce o!tb.-QQl'\ti'lict J.>Xice incUTted by QWrler resultit1e from: Coutrac;tor.Defu!ilt; or 3-.4 ^aive i) ri.gJil to,p¢fi:'onn an.'d C'Qmlet, ai-ra for cpmp[eti,onl oi"'ob.1air1. ne.w conttactor, arid . . with reas_onable promntness. undeq)e.crrcumstances: · · i. lo\ft!'r, vt?$iitioJ.l, determine .ihe' amo·iJnt .for !ll'ich innOy be !i'abie to OWl,·er f,\S soo)llts practicable a(iter::t be ampirJ1,t is. detetrnined_,. teb,der:' pay:men.t -therefo.t· to Qwne·rᩐ or Depy li!t.bility tᩈ wbol·od·p'm-and Mtify Gwner ciitlrig·tea®ns 'theref()).-e,. 4. If /urety does not proceed as provided i'n .Pai-ᩓraph 3 ,with reasona,bl,e surety sMII be de-eruea.to oe io default· on thiᩉ Bohd:l5 days aftׯr reeejpt.df'C)ila.dditional wr,1iten notice. from Owoer 19 S'!JTᩑfy, ·demanding·plun Surety its tu:tder tbj's Bon9. and·_er s_Hal.lle' em·i'tled to enforce .any reme¢y avaiiqbie tb :O.wner. If Su*ety ptt>+eeds as· provided in 3A, arid Owner r,fu-.S· ·be payll'leJᩎt. -1_1iler.e_d ·qr ´urety haᩇ dt;!l_lie.d iiaoi'lity, i'n whole or in Ra:tf', withqutfur.ther noti'* Owt1sr `.hall be eOlitled to ertf6rc.e any reLTI.dy a ail able to Owner., . - · · . 5. After Owoer has terminated CMt(a_cto,r's 6gbt to complete thᩍ ContQict,. and if Stjrety elects to i:ict. under ParagI:aph 3.1, 3.2, or 3.3 aboye, Dn the- responsibilities ofSqretfto Ownershall not be grea,ter t.ban those of Contr.actorr under ihe Mrract, and the r!ipotJ.$il;}tlitier o.t"'OW1i¢r to Smety $hH noᩊ be . greafer than thost of .owner under the Co!ttrac;t0, To Uie limit of the a:mount of this:Bond, but subject to · col:!lrnittneht by Owner 'of the·lralance of thᩋ Contract j)fice to ri1itigatib!l of costs ?rid claml\ges,()n ihe Contract; Surety is obligated ·without dupliCation for; . PERFOl:tMANC:E BOND 0061G F 2 ---PAGE BREAK--- MOSCOW SW SEWER TRUNK LiNE PHASE IlL 21200 I 5.1 The responsibilities of Contractor for correction of defective Work and completion of the Contract; 5.2 Additional legal, design professional, and delay costs resulting ftQm Contractor's Default, and resulting from the actions of or failure to act of Surety under l>,atagraph 3˵ and 5.3 Liq1.1idated damages, if no liq\lidated damages are speCified (n the Contract, actual damages . caused by delayed petform;uic;$·or non%perforntance of Contract9c 6. S.ure!y shall nofbe Hable to Owner or others for obligations of Coiltractor that are unrelated to the Col"(tr;act. and. t11e Balance of the Price shall not be reduced or .set off on acc:ount of any such w1related obligations. No fight ofaction shall .accrue on. this Bond to anY person entity other than Owner or its ,heirs, -executors; administrators, or successors. 7. Surety hereby waives notice of any change; including changes of time, to Contract or to related subcontracts, purchase orders, and other obligations 8. Any proceeding, legal or eqJJitable, under this Bond may be institi1ted in any cowi l)f competent jurisdictionin the location in which tlie Work o.r part of the Work _is located, and shall be .illi!ti.tuted·within two years after Contractor 'Default .or 'A-itWn tw.o years after Contractor ᨷ'e:a:sed working or within two years aftei' Surety refuses or fails. to perform. Its <:>.bligations tmder this- Bond, Whiclie<,er ·occurs first If.the proviflions of this paragraph ᨱte void or prohibited by l.ᨲw, the minimum ·p eri·od of limttatioh avai.lab(e to sureti6s as !I defense in the jurisdiction of the suit shall be applicable. . . 9: Noti¢e to Sllrety. Owner,. or Contractor shall be n1ailed or delivered to the address shown on thᨰ signature page. _1 0. Whc:m trris.:ᩅohd hᨺ been to comply w_ith a staᨾttfory requireᨿ em שn tl\-e location where the Col').t(ᨹC.t wBs·-to j)ertocmed, 4.ny proVision in tlils B6tid .C0i)fJiᩄti.ng with said.stat!lt91)' r_eqt)irement sha:ll be de.emei:l deleted herefrom anti provisions eonformin-g-to suG'h sta.tutory--tequiremer:lt shᨴll be:deemed 'incorpl?rat(;ld ' hᨸtein. The intent is that this'Bond ᨽnalJ oe construed a!i a.-statutory bon'd and net as a C9inm'Qh hiW' Q'ond. · 11. Defill.ltlons . . . tf.l l:laJᩂnqe.-ot tbᩃ .c;:sm·.trapt PriC'e: I:lie total amou:nt P.aya:ble- by .Owtier- to· Contr.a.c:tor ul')der :the C0otract· afler·:a1I·pr'01?el.' adj.us,tdt.e:n:ts_l\$ve beef! ri1ade .ibciuai'i g .allowari'ce tᩀ Contrᩁcto·r of any . -am.O.Lin,ts Teceived. (i)f' td be'· rce)Ved hy Owner .jn settlemer1t-·of insurance#or 'oilier craims for. ·da,i'nage.S·.tp whicl:'(C9Jtfraol'or. is ,ei5fitl34;.reduced b'y ·a).l val'd aitd proper payments made to or on oתlial_f.of C0nlnictor .url.de:t the Contract. . · . . . LI.2 'I'he P Defuult;. Failure r anrJ ˴l:llit a copy, or ·n9tice. thereef, to Owner, ·within 90 days afDer paving Last performed laboi ·or last- furnished materials oreqtiipment incJuded jn the claim sfᨛtin_g, with sub.&tl¢.1ial accuracy the amomt` ofthe &laim·ahd the-nam.e of the parly to wbol'11 the materia'lis or eq ,tpmedt were furnish eo or -stipplied, or. for whom·tl1e .labor was·done..or r:eif6:rme.tl: anᨗ . . J.IaV.e either receive a r%jection it1 whole or'i11 part from Com.ractor; or not'received within ·30 day/ of f11rnisliing·. th:e above notice any .communication from ·Contractor by whicb ·C.ontractor had i9gicated tfie:cl_iuhi ill be· paid d).reotly or lr:idii'ectly; .an . ᨕ- NoUla,v"Ing bebn paid wlthin the ·.above: 30 dayᨘ have.sen a WJ:itten nqtice to Sure.iy (at the · address .'desciibe"d in .Paragraph 1E) ai1q TUnba·copY,) or notice theteof .to.· Oy.mer;, s#ating that a claim.:is .being.nᨣilde ·Under tbis .Bocd imd ·'eflיlosjng ·a copy of ·ih,eo p(evious. written ᨙished to Cᨥmtractor.- 5. Ifa nbtice by a: paip:faotriWiired'by Pargrph 4 is,proyided.by Ovmer tq Contr'otor·or.to Suretyᨡ th.at is suffici(tntcornplial,1.. · · · · · · · 6. When a. Claimant hai. satisfied tl1'e conditions of.Paragraph 4, the Surety shal.l and at SuretY's expense tחke the·follq.\Xfing actionᨠ;: 6.1 Send an answer to th·at CJaimarit, with a copy lo. Owner, withio· 45:-di!.ys <1fter .(¢ceiP:t of the_ claim.; shltirtg. t).1e, aQlounts tl1at'arᨻ ptl.d.iS,puted and the ba5is for cha,lJenging any )moWJtS 01at are dipvted. · · . · · 6;2 Pᨦy:9rᨧrri:Ulgi;.l (or p1J.yme.n1'csfany und•spt,ited amounts. 7, Surety's tohil {)bllgטtio11 shail not exceed tbe .amount of thi$ Bond, and the arrto'tl.rlt of thזf? Bond shaH he creditedfo·riiny pyrnents made in good t'\ith by Stirety 8. Al11oi:J11f:ᨚ pwכd. by OW'il.er to Contract()t um:ter ihᨖ Contract shall be used for the·perfonnance of the PAYMENT BOND ()0615--2 ---PAGE BREAK--- MOSCOW SW SEWER TRUNK LINE PHASE III 2 1200 1 Contract and to satisf)' claims, if any, under any performance bond. By Contractor furnishing and Owner accepting this Bond. they agree that all fui1ds ean,1ed by Coi1trf1:ctor in the performao.¢ᨍ of the Contract are dedicated to satisfY obligations of Cm1tractot and Surety m1der this Bond, S.tlbject to Owner's priority to use the for the completion of the Work. · 9. Surety shall not be liable to Owner, Claimants, or others for obligations of Contractqr that are unrelated to the Conttacl. Owner shall not be liable for. payment of any cost) or expenses o.t ai.)y Claimant under ᨅiis .Bond , a!1d shall have under this Bond no obliget:iorfs to make payments tei, give notices on bebai£ of or otherwise have obl igations to Claimants under thi.s Bond. . . 1 0. Smety hereby waives notice of any change, including changes of time, to the Contract or to related suocorltracts, pu:tchasו orders, and other obligations. 1 1 . No suit oi· actioil shall be commenced by a Claimant under this Borid other ihat1 in a court of competent jufisdiהtioi1 i·n the location in which the Work or part of the Work is located or after the expiratioi1 of one year froth the date ori •vhich ihe Claimant gave the notjce required by :Paragraph 4. I or Paragraph 4.2.3, or on which the last labor or service was perfonned by anyone or the last materials· or equipment were furoist1ed by anyone under the Contract, whichever of or first occurs. lf the provis'ions of this paragraph ˳re void or prohibited by laᨐv. the minimum p¢riod Qf limitdeeined deleted herefrom and provisions conforming to sudr statutory requi .rWment ·shall be deetnדq inᨎprp·ora:ted herein. The intent is thatᨈhis :Sefid $hal1 J>e co1istruecl aS a statutory DOrtd l'lriotfftec\ 011 the ᩜsignartre page includtrig: al] Co,_itr!l,ct Docurri.ents·and cf\anges thereto·. · I 5.3 Owner O.efᨋj!lt: Failure of Owner, whiCh has. nᨇth'er be.cn remedied nor waivedᨏ to pay Conttactot·as required .by the· Contract, or to perfo.fln.a:rtcl oempl.9te or witb the other terms thereof. · PAYMENT BONO ---PAGE BREAK--- NAS SURETY GROUP NORTH AMERICAN SPECIALTY INSURANCE COMPANY WASHINGTON INTERNATIONAL INSURANCE COMPANY GENERAL POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, THAT North American Specialty Insurance Company, a corporation duly organized and existing under l aws of the State ofNew Hampshire, and having its principal office in the City of Manchester, New Hampshire, and Washington International Insurance Company, a corporation organized and existing under the laws of the State of New Hampshire and having its principal office in the City of Schaumburg, Illinois, each does hereby make, constitute and appoint: W.W. WELLER, GEORGE C. SCHROEDER, KATHY GURLEY, CHRIS LARSON, ERIN L. REPP, H. KEITH McNALLY, DIANA R. WILLIAMS and HEATHER ANDERSON JOINTLY OR SEVERALLY Its true and lawfnl Attorney(s)-in-Fact, to make, execute, seal and deliver, for and on its behalf and as its act and deed, bonds or other writings obi igatory in the nature of a bond on behalf of each of said Companies, as surety, on contracts of suretyship as are or may be required or pern1itted by law, regulation, contract or otherwise, provided that no bond or undertaking or contract or suretyship executed under this authority shall exceed the amount of: FIFTY MILLION ($50,000,000.00) DOLLARS This Power of Attorney is granted and is signed by facsimile under and by the authority of the following Resolutions adopted by the Boards of Directors of both North American Specialty Insurance Company and Washington International Insurance Company at meetings duly called and held on the 9th of May, 2012: "RESOLVED, that any two of the Presidents, any Managing Director, any Senior Vice President, any Vice President, any Assistant Vice President, the Secretary or any Assistant Secretary be, and each or any of them hereby is authorized to execute a Power of Attorney qualifying the attorney named in the given Power of Attorney to execute on behalf of the Company bonds, undertakings and all contracts of surety, and that each or any of them hereby is authorized to attest to the execution of any such Power of Attorney and to attach therein the seal of the Company; and it is FURTHER RESOLVED, that the signature of such officers and the seal of the Company may be affixed to any such Power of Attorney or to any certificate relating thereto by facsimile, and any such Power of Attorney or certificate bearing such facsimile signatures or facsimile seal shall be binding upon the Company when so affixed and in the future with regard to any bond, undertaking or contract of surety to which it is attached." - l'l::''tn r. AnderSon, Spuiol' \'ice. PreSildm:nl. or W&qdt lnJl,ton rn t"rnaUouot Jnsura ncc Company & Senior Vice President of North American Specialty Insurance Company By Da,·id l\f, Layman, Vice Presidett of Washington lntemational lnsurnnce Company & Vice President ofNo11h American Specialty Insurance Company IN WITNESS WHEREOF, North American Specialty Insurance Company and Washington International Insurance Company have caused their official seals to be hereunto affixed, and these presents to be signed by their authorized officers this26th day of June 20 ב. State of Illinois County of Cook ss: North American Specialty Insurance Company Washington International Insurance Company On this 26th day of _ _ u_ n_ e _ 20א before me, a Notary Public personally appeared Steven P. Anderson , Senior Vice President of Washington International Insurance Company and Senior Vice President of North American Specialty Insurance Company and David M. Layman , Vice President of Washington International Insurance Company and Vice President of North American Specialty Insurance Company, personally known to me, who being by me duly sworn, acknowledged that they signed the above Power of Attorney as officers of and acknowledged said instrument to be the voluntary act and deed of their respective companies. "OFFICIAL SEAL" DONNA D. SK.LENS Notary Public, Slate of lliinois My Commission Expires 10/0612015 Donna D. Sklens, Notary Public I, Jeffrey Goldberg , the duly elected Assistant Secretarv of North American Specialty Insurance Company and Washington International Insurance Company, do hereby certify that the above and foregoing is a true and correct wpy of a Power of Attorney given by said North American Specialty Insurance Company and Washington International Insurance Company, whil:h is still in fuil force and effect. IN WITNESS WHEREOF, I have set my hand and affixed the seals of the Companies this 18Tlihy of APRIL , 20 13. Jeffrey Goldberg, Vice President & Assistant Secretary of Washington International Insurance Company & North American Specialty Insurance Company