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13-201.00 Phoenix Company: Bridge Pedestrian Rails & Balusters4 CONSTRUCTION AGREEMENT Phoenix Company THIS CONSTRUCTIONAGREEMENT (the "Agreement ") is made by and between the City of Spokane Valley, a code City of the State of Washington ( "City ") and Phoenix Company, ( "Contractor ") jointly referred to as (the "Parties "). IN CONSIDERATION of the terms and conditions contained herein the Parties agree as follows: 1. Work to Be Performed. Contractor shall do all work and furnish all labor, supervision, tools, materials, supplies and equipment and other items necessary for the construction and completion of the Bridge Pedestrian Rails and Balusters Project (the "Work ") in accordance with documents described in Exhibit 1 and in accordance with this Agreement (which are by this reference incorporated herein and made part hereof (the "Contract Documents ")), and shall perform any changes in the work in accordance with the Contract Documents. The terms and provisions in this Agreement shall control over any inconsistent or incompatible terms in any other Contract Document. Contractor shall, for the amount set forth in paragraph 4, below, assume and be responsible for the cost and expense of all work required for constructing and completing the Work and related activities provided for in the Contract Documents to City's satisfaction, within the time limits prescribed in the Contract Documents. The City Manager, or designee, shall administer and be the primary contact for Contractor. Upon notice from City, Contractor shall promptly commence work, complete the same in a timely manner, and cure any failure in performance under this Agreement. Unless otherwise directed by City, all work shall be performed in conformance with the Contract Documents, and all City, State and federal standards, codes, ordinances, regulations and laws as now existing or as may be adopted or amended. 2. Time for Performance. Contractor shall commence the Work within 10 days of receipt of a notice to proceed [or execution of this Agreement] and shall complete the Work within the times specified in the Contract Documents, as may be extended in accordance with this Agreement and the Contract Documents. 3. Liquidated Damaiies. TIME IS OF THE ESSENCE FOR THIS CONTRACT. Delays cause inconvenience to the residents of City and cost taxpayers undue sums of money, adding time needed for administration, engineering, inspection and supervision. It is impractical for City to calculate the actual cost of delays. Accordingly, Contractor agrees to pay liquidated damages for failure to achieve Substantial Completion (as defined in the Contract Documents) and shall be in the amount of $0 per day. These liquidated damages are not a penalty, but are fixed and agreed upon by and between Contractor and City because of the impracticability and difficulty of fixing and ascertaining the actual damages that City would sustain in the event that the Work is not completed in accordance with the Contract Documents. Liquidated damages may be retained by City and deducted from payments otherwise due to the Contractor. 4. Compensation. In consideration of Contractor performing the Work, City agrees to pay Contractor in accordance with the Contract Documents the sum of $_9,133.00 based on the bid submitted by Contractor, and as may be adjusted in accordance with the Contract Documents. Construction Agreement Page 1 of 7 C�oI--3 -Lo1 5. Payment. Contractor may elect to be paid in monthly installments, upon presentation of an application for payment in a form satisfactory to City. Applications for payment shall be sent to the City Finance Department at the below stated address. Pursuant to Chapter 60.28 RCW, five percent of the compensation due Contractor shall be retained by City. City reserves the right to withhold payment under this Agreement which is determined in the reasonable judgment of the City Manager or designee to be noncompliant with the Contract Documents, City standards, City Code, and federal or state standards. 6. Notice. Notice other than applications for payment shall be given in writing as follows: TO THE CITY: TO THE CONTRACTOR: Name: Christine Bainbridge, City Clerk Name: Phoenix Company Phone: (509) 921 -1000 Phone: (509) 536 -9396 Address: 11707 East Sprague Ave, Suite 106 Address: 5405 E. Cataldo Ave. Spokane Valley, WA 99206 Spokane Valley, WA 99213 7. Applicable Laws and Standards. The Parties, in the performance of this Agreement, agree to comply with all applicable federal, state, and local laws, codes and regulations. 8. Certification ReeardinE Debarment, Suspension, and Other Responsibility Matters — Prima Covered Transactions. A. By executing this Agreement, the Consultant certifies to the best of its knowledge and belief, that it and its principals: 1. Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any federal department or agency; 2. Have not within a three -year period preceding this proposal been convicted of or had a civil judgment rendered against them for commission or fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (federal, state, or local) transaction or contract under a public transaction; violation of federal or state antitrust statues or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; 3. Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (federal, state, or local) with commission of any of the offenses enumerated in paragraph (A)(2) of this certification; and 4. Have not within a 3 -year period preceding this application/proposal had one or more public transactions (federal, state, or local) terminated for cause or default. B. Where the prospective primary participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this Agreement. 9. Prevailine Waees on Public Works. Contractor, any subcontractor, or other person doing work under this Agreement, shall comply with the requirements of RCW 39.12, and shall pay each employee an amount not less than the Prevailing Rate of Wage, as specified by the Industrial Statistician of the Washington State Department of Labor and Industries ( "L &I "). If employing labor in a class not shown, Construction Agreement Page 2 of 7 Contractor shall request a determination of the correct wage rate for the class and locality from the Industrial Statistician. Contractor shall provide a copy of any such determinations to City. Before commencing, during, and upon completion of the work, Contractor shall file all forms and pay all fees required by L &I and shall indemnify and hold City harmless from any claims related to its failure to comply with RCW 39.12. The following information is provided pursuant to RCW 39.12.030: A. State of Washington prevailing wage rates applicable to this public works project, published by L &I are located the L &I website address: https: / /fortress.wa.2ov /lni /wa elg ookup /prvWa elg ooUp.aspx B. This Project is located in Spokane County. C. The effective prevailing wage date is the same date as the bid due date as referenced in the original request for bids as may be revised by addenda. A copy of the applicable prevailing wage rates is also available for viewing at the offices of City located at 11707 East Sprague, Suite 106, Spokane Valley, WA 99206. Upon request, City will mail a hard copy of the applicable prevailing wages for this project. 10. Relationship of the Parties. It is understood, agreed and declared that Contractor shall be an independent contractor, and not the agent or employee of City, that City is interested in only the results to be achieved, and that the right to control the particular manner, method and means in which the services are performed is solely within the discretion of Contractor. Any and all employees who provide services to City under this Agreement shall be deemed employees solely of Contractor. Contractor shall be solely responsible for the conduct and actions of all its employees under this Agreement and any liability that may attach thereto. 11. Ownership of Documents. All drawings, plans, specifications, and other related documents prepared by Contractor under this, Agreement are and shall be the property of City, and may be subject to disclosure pursuant to RCW 42.56 or other applicable public record laws. 12. Records. The City or State Auditor or any of their representatives shall have full access to and the right to examine during normal business hours all of Contractor's records with respect to all matters covered in this Agreement. Such representatives shall be permitted to audit, examine and make excerpts or transcripts from such records and to make audits of all contracts, invoices, materials, payrolls and record of matters covered by this contract for a period of three years from the date final payment is made hereunder. 13. Warranty. Unless provided otherwise in the Contract Documents, Contractor warrants that all Work and materials performed or installed under this Agreement are free from defect or failure for a period of one year following final acceptance by City, unless a supplier or manufacturer has a warranty for a greater period, which warranty shall be assigned or transferred to City. In the event a defect or failure occurs in work or materials, Contractor shall, within the warranty period, remedy the same at no cost or expense to City. This warranty provision shall not be construed to establish a period of limitation with respect to Contractor's other obligations under this Agreement. Construction Agreement Page 3 of 7 14. Contractor to Be Licensed And Bonded. Contractor shall be duly licensed, registered and bonded by the State of Washington at all times this Agreement is in effect. 15. Insurance. Contractor shall procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder by Contractor, its agents, representatives, or employees. A. Minimum Scope of Insurance. Contractor shall obtain insurance of the types described below: 1. Automobile liability insurance covering all owned, non - owned, hired, and leased vehicles. Coverage shall be written on Insurance Services Office (ISO) form CA 00 01 or a substitute form providing equivalent liability coverage. If necessary, the policy shall be endorsed to provide contractual liability coverage. 2. Commercial general liability insurance shall be written on ISO occurrence form CG 00 O1 and shall cover liability arising from premises, operations, independent contractors, products - completed operations, stop gap liability, personal injury and advertising injury, and liability assumed under an insured contract. The commercial general liability insurance shall be endorsed to provide the Aggregate Per Project Endorsement ISO form CG 25 03 11 85. There shall be no endorsement or modification of the commercial general liability insurance for liability arising from explosion, collapse or underground property damage. City shall be named as an insured under Contractor's commercial general liability insurance policy with respect to the work performed for City using ISO Additional Insured endorsement CG 20 10 10 01 and Additional Insured - Completed Operations endorsement CG 20 37 10 01 or substitute endorsements providing equivalent coverage. 3. Workers' compensation coverage as required by the industrial insurance laws of the State of Washington. B. Minimum Amounts of Insurance. Contractor shall maintain the following insurance limits: 1. Automobile liability insurance with a minimum combined single limit for bodily injury and property damage of $1,000,000 per accident. 2. Commercial general liability insurance shall be written with limits no less than $1,000,000 each occurrence, $2,000,000 general aggregate, and a $2,000,000 products - completed operations aggregate limit. C. Other Insurance Provisions. The insurance policies are to contain, or be endorsed to contain, the following provisions for automobile liability, professional liability and commercial general liability insurance: 1. Contractor's insurance coverage shall be primary insurance with respect to City. Any insurance, self - insurance, or insurance pool coverage maintained by City shall be excess of Contractor's insurance and shall not contribute with it. 2. Contractor shall fax or send electronically in .pdf format a copy of insurer's cancellation notice within two business days of receipt by Contractor. D. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best Construction Agreement Page 4 of 7 rating of not less than A:VII. E. Evidence of Coverage. As evidence of the insurance coverages required by this Agreement, Contractor shall furnish acceptable insurance certificates to City at the time Contractor returns the signed Agreement. The certificate shall specify all of the parties who are additional insureds, and will include applicable policy endorsements, and the deduction or retention level. Insuring companies or entities are subject to City acceptance. If requested, complete copies of insurance policies shall be provided to City. Contractor shall be financially responsible for all pertinent deductibles, self - insured retentions, and/or self - insurance. 16. Indemnification and Hold Harmless. Contractor shall, at its sole expense, defend, indemnify and hold harmless City and its officers, agents, and employees, from any and all claims, actions, suits, liability, loss, costs, attorney's fees and costs of litigation, expenses, injuries, and damages of any nature whatsoever relating to or arising out of the wrongful or negligent acts, errors or omissions in the services provided by Contractor, Contractor's agents, subcontractors, subconsultants and employees to the fullest extent permitted by law, subject only to the limitations provided below. Contractor's duty to defend, indemnify and hold harmless City shall not apply to liability for damages arising out of such services caused by or resulting from the sole negligence of City or City's agents or employees. Contractor's duty to defend, indemnify and hold harmless City against liability for damages arising out of such services caused by the concurrent negligence of (a) City or City's agents or employees, and (b) Contractor, Contractor's agents, subcontractors, subconsultants and employees, shall apply only to the extent of the negligence of Contractor, Contractor's agents, subcontractors, subconsultants and employees. Contractor's duty to defend, indemnify and hold City harmless shall include, as to all claims, demands, losses and liability to which it applies, City's personnel- related costs, reasonable attorneys' fees, and the reasonable value of any services rendered by the office of the City Attorney, outside consultant costs, court costs, fees for collection, and all other claim - related expenses. Contractor specifically and expressly waives any immunity that may be granted it under the Washington State Industrial Insurance Act, Title 51 RCW. These indemnification obligations shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable to or for any third party under workers' compensation acts, disability benefit acts, or other employee benefits acts. Provided, that Contractor's waiver of immunity by the provisions of this paragraph extends only to claims against Contractor by City, and does not include, or extend to, any claims by Contractor's employees directly against Contractor. Contractor hereby certifies that this indemnification provision was mutually negotiated. 17. Waiver. No officer, employee, agent or other individual acting on behalf of either party has the power, right or authority to waive any of the conditions or provisions of this Agreement. No waiver in one instance shall be held to be waiver of any other subsequent breach or nonperformance. All remedies afforded in this Agreement or by law, shall be taken and construed as cumulative, and in addition to every other remedy provided herein or by law. Failure of either party to enforce at any time any of the provisions of this Agreement or to require at any time performance by the other party of any provision hereof shall in no way be construed to be a waiver of such provisions nor shall it affect the validity of this Agreement or any part thereof. 18. Assignment and Delegation. Neither party shall assign, transfer, or delegate any or all of the Construction Agreement Page 5 of 7 responsibilities of this Agreement or the benefits received hereunder without first obtaining the written consent of the other party. 19. Confidentiality. Contractor may, from time to time, receive information which is deemed by City to be confidential. Contractor shall not disclose such information without the prior express written consent of City or upon order of a Court of competent jurisdiction. 20. Disputes. All disputes arising under or related to this Agreement that cannot be resolved through informal discussion and negotiations shall be resolved by litigation filed in the Superior Court for Spokane County, unless otherwise required by applicable federal or state law. 21. Subcontractor Responsibility. As required by RCW 39.06.020, Contractor shall verify responsibility criteria for each first tier subcontractor and its subcontractors of any tier that hires other subcontractors shall verify responsibility criteria for each of its subcontractors. Verification shall include that each subcontractor, at the time of subcontract execution, meets the responsibility criteria listed in RCW 39.04.350(1) and possesses an electrical contractor license, if required by chapter 19.28 RCW, or an elevator contractor license if required by chapter 70.87 RCW. This verification requirement must be included in every subcontract of every tier. 22. Jurisdiction and Venue. This Agreement is entered into in Spokane County, Washington. Venue shall be in Spokane County, State of Washington. 23. Entire Agreement. This Agreement constitutes the entire and complete agreement between the parties and supercedes any prior oral or written agreements. This Agreement may not be changed, modified or altered except in writing signed by the Parties. 24. Anti - kickback. No officer or employee of City, having the power or duty to perform an official act or action related to this Agreement shall have or acquire any interest in this Agreement, or have solicited, accepted or granted a present or future gift, favor, service or other thing of value from any person with an interest in this Agreement. 25. Business Re¢istration. Prior to commencement of Work under this Agreement, Contractor shall register with the City as a business. 26. Severability. If any section, sentence, clause or phrase of this Agreement should be held to be invalid for any reason by a court of competent jurisdiction, such invalidity shall not affect the validity of any other section, sentence, clause or phrase of this Agreement. 27. Exhibits. Exhibits attached and incorporated into this Agreement are: 1. Scope of Work 2. Insurance Endorsements Construction Agreement Page 6 of 7 The Parties have executed this Agreement this day of , 20'x. CITY OF SPOKANE VALLEY: Mike Jackson, ATTEST: Stine Bainbridge, City Clerk Contractor: al Owner Celie D. keybAds, Secretary /Treasurer APPROVED AS TO FORM: Office 4the City Attorney Phoenix Company P.O. Box 13099 " 5405 E. Cataldo Ave. Spokane Valley, WA 99213 PH. (509) 536 -9396 FAX: (509) 535 -2034 WDOT QPL NUMBER 2005 -694 QUOTATION Project Owner: City of Spokane Valley Project Name: Pedestrian Railings and Balusters Project Location: Spokane Valley Date: 10/1/13 ITEM QTY UNIT TOTAL 2 EA Baluster Replacement Bridge #4502 291.01 582.02 3 EA Baluster Replacement Brid a #4501 291.01 873.03 Rail Repair: Sullivan Over Trent, Sullivan Over BNSF RR Ls 2,240.22 Rail Repair: Argonne under BNSF RR Overpass Ls 5,437.73 Totil--1 $9,133.00 Notes: Prices good for 30 days from bid date. Includes: • Materials & all fasteners as discussed with Pete Fisch per City of Spokane Valley's Request • _ Installation (by sub contractor) Excludes: • Retainage and Sales Tax -An Equal Opportunity Employer- LYNNREY -01 KGEHRS CERTIFICATE OF LIABILITY INSURANCE DAT 10/8/20/8 /2013 D/YYl'Y) THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER Spokane - Downtown Office Paynewest Insurance, Inc. 827 West 1st Avenue Suite 225 Spokane, WA 99201 CONTACT NAME: HC E. Ert ; (509) 455 -6767 NC No E -MAIL ADDRESS: INSURER(S) AFFORDING COVERAGE NAIC # INSURER A: American Casualty Co of Reading PA rg ,,� INSURED INSURER B: Continental Casualty Company 20443 INSURER C: X COMMERCIAL GENERAL LIABILITY Lynn Reynolds, Inc. dba Phoenix Co. INSURER D: C2078.315956 ' r' 1 �`a P.O. Box 13099 Spokane, WA 99213 -3099 INSURER E : DAMAUF To RENT U PREMISES Ea occurrence INSURER F: MED EXP (Any one person) COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY`REQUIREMENT,,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED` OR WAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES: LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE �''� +' a I d"pOLICY NUMBER POLICY EFF MM /DD/YYYY POLICY EXP MM /DDIYYYY LIMITS GENERAL LIABILITY \ -! rg ,,� EACH OCCURRENCE $ 1,000,000 A X COMMERCIAL GENERAL LIABILITY X X C2078.315956 ' r' 1 �`a 7/10/2013 7/10/2014 DAMAUF To RENT U PREMISES Ea occurrence $ 100,00 MED EXP (Any one person) $ 15,000 CLAIMS -MADE FxI OCCUR f PERSONAL& ADV INJURY $ 1,000,000 ' S GENERAL AGGREGATE $ 2,000,000 �± „� q 4 ! GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP /OP AGG $ 2,000,00 Employers Liab $ 1,000,00 POLICY PEC LOC P F AUTOMOBILE LIABILITY •'' "; ; '` COM Ea accdBINED ent SINGLE LIMIT $ 1,000,000 BODILY INJURY (Per person) $ A X ANY AUTO -° C2078315973 7/10/2013 ?7/10/2014 ALL OWNED SCHEDULED T f BODILY INJURY (Per accident) $ AUTOS AUTOS NON -OWNED PROPERTY DAMAGE $ HIRED AUTOS AUTOS j + r - Per accident $ `: X UMBRELLA LIAB X OCCUR t p'»- "� 4'� EACH OCCURRENCE $ 3,000,000 B EXCESS LIAB CLAIMS -MADE C2078315987 -•. - 7/10/2013 7/10 /2014�`,Ar,GREGATE " $ 3,000,00 .7``i ` "'n z DED I X I RETENTION $\ :10,060 $ WORKERS COMPENSATION -._.,� `-+r. .t - r "'' „ - +' WC STATU- OTH- DRY LIMITS ER ANDEMPLOYERS' LIABILITY /N P �� a° ANY PROPRIETOR /PARTNER /EXECUTIVEY ❑ NIA { E.L. EACH ACCIDENT $ r E.L. DISEASE - EA EMPLOYE $ OFFICER/MEMBER EXCLUDED? (Mandatory In NH) �,. E.L. DISEASE - POLICY LIMIT $ If yes, describe under DESCRIPTION OF OPERATIONS below 1 x•s / t yam, -r?' r ' `•, : '� t'e- DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (Attach ACORD 101, Addklon_al Remarks Schedule, U more space Is required), City of Spokane Valley attn: Pete Fisch, City Hall 11707 E Sprague Spokane Valley, WA 99206 II Lei CI -'Z SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE ©1988 -2010 ACORD CORPORATION. All rights reserved. ACORD 25 (2010105) The ACORD name and logo are registered marks of ACORD Verify Workers' Comp Premium Status - Employer Liability Certificate Page 1 of 1 Washington State Department of Labor and Industries Department of Labor and Industries Employer Liability Certificate Date: 10/04/2013 UBI #: 601 562 447 Legal Business Name: LYNN L REYNOLDS INC Account #: 801,873 -01 'Doing Business As' Name: PHOENIX COMPANY Employer Liability Certificate Estimated Workers Reported: Quarter 2 of Year 2013 "1 to 3 Workers" (See Description Below) Workers' Comp Premium Status: Account is current. Firm has voluntarily reported and paid their premiums. Licensed Contractor? No Account Representative: T5 / MICHAEL MURPHY (360)902 -4822 - Email: MURY235 @]ni.wa.gov What does "Estimated Workers Reported" mean? Estimated workers reported represents the number of full time position requiring at least 480 hours of work per calendar quarter. A single 480 hour position may be filled by one person, or several part time workers. Industrial Insurance Information Employers report and pay premiums each quarter based on hours of employee work already performed, and are liable for premiums found later to be due. Industrial insurance accounts have no policy periods, cancellation dates, limitations of coverage or waiver of subrogation (See RCW 51.12.050 and 51.16.199). https: // fortress. wa. gov/ lni/ crpsi lAcctInfoPrint.aspx ?AccountId= 80187301 &AccountManag... 10/4/2013