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125-22 - KR Homes, LLC - ContractCONTRACT CITY OF PORT ORCHARD SROUFE WATER MAIN REPLACEMENT CONTRACT NO. C125-22 THIS CONTRACT ("Contract") is made and entered into this 14th day of March 2023, by and between the City of Port Orchard, a municipality incorporated and existing under the laws of the State of Washington, hereinafter called the "City," and KR Homes, LLC hereinafter called the "Contractor." WITNESSETH: I. General Provisions. A. Description of Work. The Contractor, in consideration of the covenants, agreements and payments to be performed and made by the City, hereby covenants and agrees to furnish all labor, tools, materials, equipment and supplies required for, and to execute, construct and finish in full compliance with the Contract Documents, SROUFE WATER MAIN REPLACEMENT. The Contractor further agrees to perform all such work for the Contract Price stated in the Contractor's Bid Proposal dated January 16, 2023, attached hereto and incorporated herein by this reference as if set forth in full. Contractor further represents that the services furnished under this Agreement will be performed in accordance with and as described in the attached plans and specifications and with the Port Orchard Municipal Code, the City's Public Works Standards, which includes (but is not limited to) the 2023 edition of the WSDOT Standard Specifications for Road, Bridge, and Municipal Construction (which shall apply except where noted otherwise). All of these standards are by this reference incorporated herein and made a part hereof. Contractor further represents that the services furnished under this Agreement will be performed in accordance with generally accepted professional practices within the Puget Sound region in effect at the time such services are performed. The Contract Documents include: Exhibit A -a confirmed copy of the Proposal made by the Contractor on January 16, 2023, together with the Instructions to Bidders. Exhibit B — The Project Manual for the SROUFE WATER MAIN REPLACEMENT. Exhibit C — Retainage Options All Exhibits to this Contract are by this reference incorporated herein and made a part hereof as if set forth in full. B. Time of Completion. Time is of the essence of this Contract. It is agreed that the work covered by this Contract shall start within 14 calendar days after Notice to Proceed is issued and that all construction shall be complete within 65 working days after the Notice to Proceed Date. Rev3/1 B/22 Project No. PW2022-024, Contract No. C125-22 Page 1 City of Port Orchard Sroufe Water Main Replacement C. Liquidated Damages. It is further agreed that the City will suffer damage and be put to additional expense in the event that the Contractor shall not have the specified portions of the work completed in all its parts in the time specified, and as it may be difficult to accurately compute the amount of such damage, the Contractor expressly covenants and agrees to pay to the City liquidated damages, the sum as calculated by the equation shown in Section 1-08.9 of the WSDOT Standard Specifications, for each and every working day said work is not complete beyond the time shown in the Proposal. II. Non -Discrimination. During the performance of this Contract, the Contractor, for itself, its assignees, and successors in interest agrees to comply with the following non-discrimination statutes and authorities; including but not limited to compliance with the following Pertinent Non -Discrimination Authorities: Title VI of the Civil Rights Act of 1964 (42 U S.C. § 2000d et seq., 78 stat. 252), (prohibits discrimination on the basis of race, color, national origin); and 49 C.F.R. Part 21. The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42 U.S.C. § 4601), (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal -aid programs and projects); • Federal -Aid Highway Act of 1973, (23 U.S.C. § 324 et seq.), (prohibits discrimination on the basis of sex); • Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. § 794 et seq.), as amended, (prohibits discrimination on the basis of disability); and 49 C.F.R. Part 27; • The Age Discrimination Act of 1975, as amended, (42 U S.C. § 6101 et seq.), (prohibits discrimination on the basis of age); • Airport and Airway Improvement Act of 1982, (49 USC§ 471, Section 4 7123), as amended, (prohibits discrimination based on race, creed, color, national origin, or sex); • The Civil Rights Restoration Act of 1987, (PL 100-209), (Broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, The Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms "programs or activities" to include all of the programs or activities of the Federal -aid recipients, sub- recipients and contractors, whether such programs or activities are Federally funded or not); • Titles II and III of the Americans with Disabilities Act, which prohibit discrimination on the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities (42 U.S.C. §§ 12131-12189) as implemented by Department of Transportation regulations at 49 C.P.R. parts 37 and 38; • The Federal Aviation Administration's Non-discrimination statute (49 U.S.C. § 47123) (prohibits discrimination on the basis of race, color, national origin, and sex); Rev3/18/22 Project No. PW Contract No. 1 3- p�c� City of Port Orchard Sroufe Water Main Replacement Page 2 • Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low -Income Populations, which ensures discrimination against minority populations by discouraging programs, policies, and activities with disproportionately high and adverse human health or environmental effects on minority and low-income populations; • Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, and resulting agency guidance, national origin discrimination includes discrimination because of limited English proficiency (LEP). To ensure compliance with Title VI, you must take reasonable steps to -ensure that LEP persons have meaningful access to your programs (70 Fed. Reg. at 74087 to 74100); Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating because of sex in education programs or activities (20 U.S.C. 1681 et seq). Title VI of the Civil Riehts Act of 1964 The City of Port Orchard, in accordance with Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U.S.C. 2000d to 2000d-4 and Title 49, Code of Federal Regulations, Department of Transportation subtitle A, Office of the Secretary, Part 21, nondiscrimination in federally assisted programs of the Department of Transportation issued pursuant to such Act, must affirmatively ensure that its contracts comply with these regulations. Also, in accordance with Title VI, the City is required to include the following clauses in every contract subject to Title VI and its related regulations. Therefore, during the performance of this Contract, the Contractor, for itself, its assignees, and successors in interest agrees as follows: 1. Compliance with Regulations: The Contractor will comply with the Acts and the regulations relative to Nondiscrimination in Federally -assisted programs of the U.S. Department of Transportation, Federal Highway Administration (FHWA), as they may be amended from time to time, which are herein incorporated by reference and made a part of this Contract. 2. Nondiscrimination: The Contractor, with regard to the work performed by it during this Contract, will not discriminate on the grounds of race, color, national origin, sex, age, disability, income -level, or LEP in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The Contractor will not participate directly or indirectly in the discrimination prohibited by the Acts and the Regulations as set forth in Appendix A, attached hereto and incorporated herein by this reference, including employment practices when this Contract covers any activity, project, or program set forth in Appendix B of 49 C.F.R. part 21. 3. Solicitations for Subcontracts, Including Procurements of Materials and Equipment: In all solicitations, either by competitive bidding, or negotiation made by the Contractor for work to be performed under a subcontract, including procurements of materials, or Rev3118l22 Project No. PW Contract No. 1 p� �� Page 3 City of Port Orchard Sroufe Water Main Replacement leases of equipment, each potential subcontractor or supplier will be notified by the Contractor of the Contractor's obligations under this Contract and the Acts and the Regulations relative to Non-discrimination on the grounds of race, color, national origin, sex, age, disability, income -level, or LEP. 4. Information and Reports: The Contractor will provide all information and reports required by the Acts, the Regulations and directives issued pursuant thereto and will permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the City or the FHWA to be pertinent to ascertain compliance with such Acts, Regulations, and instructions. Where any information required of the Contractor is in the exclusive possession of another who fails or refuses to furnish the information, the Contractor will so certify to the City or the FHWA, as appropriate, and will set forth what efforts it has made to obtain the information. 5. Sanctions for Noncompliance: In the event of the Contractor's noncompliance with the Non-discrimination provisions of this Contract, the City will impose such contract sanctions as it or the FHWA may determine to be appropriate, including, but not limited to: 1. withholding payments to the Contractor under the Contract until the Contractor complies; and/or 2. cancelling, terminating, or suspending the Contract, in whole or in part. 6. Incorporation of Provisions: The Contractor will include the provisions of paragraphs one through six in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Acts, the Regulations and directives issued pursuant thereto. The Contractor will take action with respect to any subcontract or procurement as the City or the FHWA may direct as a means of enforcing such provisions including sanctions for noncompliance. Provided, that if the Contractor becomes involved in, or is threatened with litigation by a subcontractor, or supplier because of such direction, the Contractor may request the City to enter into any litigation to protect the interests of the City. In addition, the Contractor may request the United States to enter into the litigation to protect the interests of the United States. III. Public Records Act Chapter 42.56 RCW Contractor understands that her/his bid response documents, and any contract documents may be subject to release under the Public Records Act Chapter 42.56 RCW and the City may be required to disclose such documents upon a request. Contractor acknowledges that s/he has been advised to mark any records believed to be trade secrets or confidential in nature as "confidential." If records marked as "confidential" are found to be responsive to the request for records, the City as a courtesy to the Contractor, may elect to give notice to Contractor of the request so as to allow Contractor to seek a protective order from a Court. Contractor acknowledges and agrees that any records deemed responsive to a public records request may be released at the sole discretion of, and without notice by, the City. Rev3/18/22 Project No. PW Contract No. V �v op, Page 4 City of Port Orchard Sroufe Water Main Replacement IV. Termination The City may terminate this contract for cause or for convenience. 1. Termination for Cause. The City may, upon 7 days written notice to Contractor and to its surety, terminate (without prejudice to any right or remedy of the City) the contract, or any part of it, for cause upon the occurrence of any one or more of the following events: Contractor fails to complete the work or any portion thereof with sufficient diligence to ensure substantial completion of the work within the contract time; Contractor is adjudged bankrupt, makes a general assignment for the benefit of its creditors, or a receiver is appointed on account of its insolvency; Contractor fails in a material way to replace or correct work not in conformance with the Contract Documents, Contractor repeatedly fails to supply skilled workers or proper materials or equipment; Contractor materially disregards or fails to comply with laws, ordinances, rules, regulations, or orders of any public authority having jurisdiction; or Contractor is otherwise in material breach of any provision of the contract. Upon termination, the City may, at its option, take possession of or use all documents, materials, equipment, tools, and construction equipment and machinery thereon owned by Contractor to maintain the orderly progress of, and to finish, the work, and finish the work by whatever other reasonable method it deems expedient. 2. Termination for Convenience. The City may, upon written notice, terminate (without prejudice to any right or remedy of the City) the contract, or any part of it, for the convenience of the City. 3. Settlement of Costs. If the City terminates for convenience, Contractor shall be entitled to make a request for an equitable adjustment for its reasonable direct costs incurred prior to the effective date of the termination, plus a reasonable allowance for overhead and profit on work performed prior to termination, plus the reasonable administrative costs of the termination, but shall not be entitled to any other costs or damages, whatsoever, provided however, the total sum payable upon termination shall not exceed the Contract Sum reduced by prior payments. V. Corporate Surety Bond With this Contract, Contractor is furnishing ra Corporate Surety Bond in the amount of T�l'te h�111a1rt'! �Lmirmj EVE ��� ��U �o Dollars ($ �) with Ai �' y W InsuranLe— as Surety, to ensuVlFull compliance, execution and performance of this Contract by the Contractor in accordance with all its terms and provisions. o ��� Rev3118l22 Project No. PW Contract No.1 RS City of Port Orchard Sroufe Water Main Replacement Page 5 VI. 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. VII. Employment of State Retirees. The City is a "DRS-covered employer" which is an organization that employs one or more members of any retirement system administered by the Washington State Department of Retirement Systems (DRS). Pursuant to RCW 41.50.139(1) and WAC 415-02-325(1), the City is required to elicit on a written form if any of the Contractor's employees providing services to the City retired using the 2008 Early Retirement Factors (ERFs), or if the Contractor is owned by an individual who retired using the 2008 ERFs, and whether the nature of the service and compensation would result in a retirement benefit being suspended. Failure to make this determination exposes the City to significant liability for pension overpayments. As a result, before commencing work under this Agreement, Contractor shall determine whether any of its employees providing services to the City or any of the Contractor's owners retired using the 2008 ERFs, and shall immediately notify the City and shall promptly complete the form provided by the City after this notification is made. This notification to DRS could impact the payment of retirement benefits to employees and owners of Contractor. Contractor shall indemnify, defend, and hold harmless the City from any and all claims, damages, or other liability, including attorneys' fees and costs, relating to a claim by DRS of a pension overpayment caused by or resulting from Contractor's failure to comply with the terms of this provision. This provision shall survive termination of this Agreement. VIII. Changes. The City may issue a written change order for any change in the Contract work during the performance of this Agreement. If the Contractor determines, for any reason, that a change order is necessary, Contractor must submit a written change order request to the person listed in the Notice provision section of this Agreement, within fourteen (14) calendar days of the date Contractor knew or should have known of the facts and events giving rise to the requested change. If the City determines that the change increases or decreases the Contractor's costs or time for performance, the City will make an equitable adjustment. The City will attempt, in good faith, to reach agreement with the Contractor on all equitable adjustments. However, if the parties are unable to agree, the City will determine the equitable adjustment as it deems appropriate. The Contractor shall proceed with the change order work upon receiving either a written change order from the City or an oral order from the City before actually receiving the written change order. If the Contractor fails to require a change order within the time specified in this paragraph, the Contractor waives its right to make any claim or submit subsequent change order requests for that portion of the contract work. If the Contractor disagrees with the equitable adjustment, the Contractor must complete the change order work; however, the Rev3/18/22 Project No. PUV , Contract No. ?a� � 0 Page 6 City of Port Orchard Sroufe Water Main Replacement Contractor may elect to protest the adjustment as provided in subsections A through E of Section IX entitled, "Claims," below. The Contractor accepts all requirements of a change order by: (1) endorsing it, (2) writing a separate acceptance, or (3) not protesting in the way this section provides. A change order that is accepted by Contractor as provided in this section shall constitute full payment and final settlement of all claims for contract time and for direct, indirect and consequential costs, including costs of delays related to any work, either covered or affected by the change. IX. Claims. If the Contractor disagrees with anything required by a change order, another written order, or an oral order from the City, including any direction, instruction, interpretation, or determination by the City, the Contractor may file a claim as provided in this section. The Contractor shall give written notice to the City of all claims within fourteen (14) calendar days of the occurrence of the events giving rise to the claims, or within fourteen (14) calendar days of the date the Contractor knew or should have known of the facts or events giving rise to the claim, whichever occurs first. Any claim for damages, additional payment for any reason, or extension of time, whether under this Agreement or otherwise, shall be conclusively deemed to have been waived by the Contractor unless a timely written claim is made in strict accordance with the applicable provisions of this Agreement. At a minimum, a Contractor's written claim shall include the information set forth in subsections A, items 1 through 5 below. FAILURE TO PROVIDE A COMPLETE, WRITTEN NOTIFICATION OF CLAIM WITHIN THE TIME ALLOWED SHALL BE AN ABSOLUTE WAIVER OF ANY CLAIMS ARISING IN ANY WAY FROM THE FACTS OR EVENTS SURROUNDING THAT CLAIM OR CAUSED BY THAT DELAY. A. Notice of Claim. Provide a signed written notice of claim that provides the following information: 1. The date of the Contractor's claim; 2. The nature and circumstances that caused the claim; 3. The provisions in this Agreement that support the claim; 4. The estimated dollar cost, if any, of the claimed work and how that estimate was determined; and 5. An analysis of the progress schedule showing the schedule change or disruption if the Contractor is asserting a schedule change or disruption. B. Records. The Contractor shall keep complete records of extra costs and time incurred as a result of the asserted events giving rise to the claim. The City shall have access to any of the Contractor's records needed for evaluating the protest. Rev3/18/22 Project No. PW Contract No. Page 7 City of Port Orchard Sroufe Water Main Replacement The City will evaluate all claims, provided the procedures in this section are followed. If the City determines that a claim is valid, the City will adjust payment for work or time by an equitable adjustment. No adjustment will be made for an invalid protest. C. Contractor's Duty to Complete Protested Work. In spite of any claim, the Contractor shall proceed promptly to provide the goods, materials and services required by the City under this Agreement. D. Failure to Protest Constitutes Waiver. By not protesting as this section provides, the Contractor also waives any additional entitlement and accepts from the City any written or oral order (including directions, instructions, interpretations, and determination). E. Failure to Follow Procedures Constitutes Waiver. By failing to follow the procedures of this section, the Contractor completely waives any claims for protested work and accepts from the City any written or oral order (including directions, instructions, interpretations, and determination). X. 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. XI. Warranty. Upon acceptance of the contract work, Contractor must provide the City a two-year warranty bond in the amount of twenty percent (20%) of the contract price a form and amount acceptable to the City. The Contractor shall correct all defects in workmanship and materials within two (2) years from the date of the City's acceptance of the Contract work, including replacing vegetation that fails to thrive. In the event any parts are repaired or replaced, only original replacement parts shall be used —rebuilt or used parts will not be acceptable. When defects are corrected, the warranty for that portion of the work shall extend for one (1) additional year from the date such correction is completed and accepted by the City. The Contractor shall begin to correct any defects within seven (7) calendar days of its receipt of notice from the City of the defect. If the Contractor does not accomplish the corrections within a reasonable time as determined by the City, the City may complete the corrections and the Contractor shall pay all costs incurred by the City in order to accomplish the correction. X111. Indemnification. Contractor shall defend, indemnify, and hold the City, its officers, officials, employees, agents and volunteers harmless from any and all claims, injuries, damages, losses or suits, including all legal costs and attorney fees, arising out of or in connection with the Contractor's performance �,ORI Rev3/18/22 Project No. PW . , Contract No. City of Port Orchard Sroufe Water Main Replacement Page 8 of this Agreement, except for that portion of the injuries and damages caused by the sole negligence of the City. The City's inspection or acceptance of any of Contractor's work when completed shall not be grounds to avoid any of these covenants of indemnification. 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, agents 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 constitutes the contractor's waiver of immunity under Industrial Insurance, Title 51 RCW, solely for the purposes of this indemnification. The parties further acknowledge that they have mutually negotiated this waiver. THE PROVISIONS OF THIS SECTION SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT. XIII. Insurance. The 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 the Contractor, its agents, representative, employees or subcontractors. No Limitation. Contractor's maintenance of insurance as required by the agreement shall not be construed to limit the liability of the Contractor to the coverage provided by such insurance, or otherwise limit the City's recourse to any remedy available at law or in equity. 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 01 and shall cover liability arising from premises, operations, stop gap liability, independent contractors, products -completed operations, 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 1185. There shall be no endorsement or modification � c : 9( Rev3/18/22 Project No. PW Contract No.? �� Page 9 City of Port Orchard Sroufe Water Main Replacement of the Commercial General Liability insurance for liability arising from explosion, collapse or underground property damage. The City shall be named as an insured under the Contractor's Commercial General Liability insurance policy with respect to the work performed for the 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. 4. Builders Risk insurance covering interests of the City, the Contractor, Subcontractors, and Sub -subcontractors in the work. Builders Risk insurance shall be on a all-risk policy form and shall insure against the perils of fire and extended coverage and physical loss or damage including flood and earthquake, theft, vandalism, malicious mischief, collapse, temporary buildings and debris removal. This Builders Risk insurance covering the work will have a deductible of $5,000 for each occurrence, which will be the responsibility of the Contractor. Higher deductibles for flood and earthquake perils may be accepted by the City upon written request by the Contractor and written acceptance by the City. Any increased deductibles accepted by the City will remain the responsibility of the Contractor. The Builders Risk insurance shall be maintained until final acceptance of the work by the City. 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. 3. Builders Risk insurance shall be written in the amount of the completed value of the project with no coinsurance provisions. C. Other Insurance Provisions. The insurance policies are to contain, or be endorsed to contain, the following provisions for Automobile Liability, Commercial General Liability and Builders Risk insurance: 1. The Contractor's insurance coverage shall be primary insurance as respect the City. Any insurance, self-insurance, or insurance pool coverage maintained by the City shall be excess of the Contractor's insurance and shall not contribute with it. �z Rev3/18/22 Project No. PW Contract No. -p2 Page 10 City of Port Orchard Sroufe Water Main Replacement 2. The Contractor's insurance shall be endorsed to state that coverage shall not be cancelled by either party, except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City. D. Contractor's Insurance for Other Losses. The Contractor shall assume full responsibility for all loss or damage from any cause whatsoever to any tools, Contractor's employee -owned tools, machinery, equipment, or motor vehicles owned or rented by the Contractor, or the Contractor's agents, suppliers or contractors as well as to any temporary structures, scaffolding and protective fences. E. Waiver of Subrogation. The Contractor and the City waive all rights against each other any of their Subcontractors, Sub -subcontractors, agents and employees, each of the other, for damages caused by fire or other perils to the extend covered by Builders Risk insurance or other property insurance obtained pursuant to the Insurance Requirements Section of this Contract or other property insurance applicable to the work. The policies shall provide such waivers by endorsement or otherwise. F. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best rating of not less than A:VII. G. Verification of Coverage. Contractor shall furnish the City with original certificates and a copy of the amendatory endorsements, including but not necessarily limited to the additional insured endorsement, evidencing the Automobile Liability and Commercial General Liability insurance of the Contractor before commencement of the work. Before any exposure to loss may occur, the Contractor shall file with the City a copy of the Builders Risk insurance policy that includes all applicable conditions, exclusions, definitions, terms and endorsements related to this Project. H. Subcontractors. Contractor shall ensure that each subcontractor of every tier obtain at a minimum the same insurance coverage and limits as stated herein for the Contractor (with the exception of Builders Risk insurance). Upon request the City, the Contractor shall provide evidence of such insurance. XIV. WORK PERFORMED AT CONTRACTOR'S RISK. Contractor shall take all necessary precautions and shall be responsible for the safety of its employees, agents, and subcontractors in the performance of the contract work and shall utilize all protection necessary for that purpose. All work shall be done at Contractor's own risk, and Contractor shall be responsible for any loss of or damage to materials, tools, or other articles used or held for use in connection with the work. XV. Miscellaneous Provisions. A. 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 conferred by this Agreement in one or more instances shall not be construed to be a waiver or avvq-C>aLt Rev3/18/22 Project No. PW Contract No. OC 0� Page 11 City of Port Orchard Sroufe Water Main Replacement relinquishment of those covenants, agreements or options, and the same shall be and remain in full force and effect. B. Resolution of Disputes and Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. If the parties are unable to settle any dispute, difference or claim arising from the parties' performance of this Agreement, the exclusive means of resolving that dispute, difference or claim, shall only be by filing suit exclusively under the venue, rules and jurisdiction of the Kitsap County Superior Court, Kitsap County, Washington, unless the parties agree in writing to an alternative dispute resolution process. In any claim or lawsuit for damages arising from the parties' performance of this Agreement, each party shall pay all its legal costs and attorney's fees incurred in defending or bringing such claim or lawsuit, including all appeals, in addition to any other recovery or award provided by law; provided, however, nothing in this paragraph shall be construed to limit the City's right to indemnification under Section XII of this Agreement. C. 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 notified 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. D. 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. E. 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. F. Entire Agreement. The written provisions and terms of this Agreement, together with any Exhibits attached hereto, shall supersede all prior verbal statements of any officer or other representative of the City, and such statements shall not be effective or be construed as entering into or forming a part of or altering in any manner this Agreement. All of the above documents are hereby made a part of this Agreement. However, should any language in any of the Exhibits to this Agreement conflict with any language contained in this Agreement, the terms of this Agreement shall prevail. G. 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. ,wv tof la Ra Rev3/18/22 Project No. PW Contract No. City of Port Orchard Sroufe Water Main Replacement Page 12 H. 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 parties hereto have caused these presents to be duly executed. CITY OF PORT ORCHARD M Robert Putaansuu, Mayor CONTRACTOR By: q_�� Title: l rc5f rdw� Address: IS Z FwiL,. KA S IOILG� ATTEST: Brandy Wallace, MMC, City Clerk APPROVED AS TO FORM: JPC CLA-Ia�L4c) Charlotte Archer, City Attorney NOTICES TO BE SENT TO: CONTRACTOR: NAME Kw � Uiq ADDRESS 152 rr,,j U s TELEPHONE 30 Email 16AZT a IU 40KU15. n" CITY: K. Chris Hammer, P.E., City Engineer 216 PROSPECT STREET, PORT ORCHARD, WA 98366 (360) 876-4991 publicworks@portorchardwa.gov With a copy to the City Clerk at the same address Rev3/18/22 Project No. PW Contract No. City of Port Orchard Sroufe Water Main Replacement Page 13 DocuSign Envelope ID: D6910AAD-CCB1-4D66-B708-F50FA209D012 H. 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 parties hereto have caused these presents to be duly executed. CITY OF PORT ORCHARD By: Robert Putaansuu, Mayor CONTRACTOR By: _leg 1�I"40 Title: l fc5{ A Address: 11 L E.L PA 5- V"A wo usi I FGFT�gned by: fWWA,A a Brandy Wallace, MMC, City Clerk =AS TO FORM: Charlotte Archer, City Attorney NOTICES TO BE SENT TO: CONTRACTOR: NAME G � U-m ADDRESS 151 E� J TELEPHONE X0 %3 140iD Email _ I(uizT m I. k L�)Vjli5. QLZ( CITY: K. Chris Hammer, P.E., City Engineer 226 PROSPECT STREET, PORT ORCHARD, WA 98366 (360) 876-4991 publicworks@portorchardwa.gov With a copy to the City Clerk at the same address Rev3/18/22 Project No. PW Contract No. Page 13 City of Port Orchard Sroufe Water Main Replacement EXHIBIT C 5% RETAINAGE INVESTMENT OPTION' Contractor: Mt - Project Name: SROUFE WATER MAIN REPLACEMENT Date: Project Number: PW2022-024 Pursuant to RCW 60.28.010, as amended, you may exercise an option as to how the 5% retainage under this contract will be invested. Please complete and sign this form indication your preference. If you fail to do so you will miss the benefit of any interest earned. Select one of the following options: 1. Savings Account: Money will be placed in an interest -bearing account. The interest will be paid to you directly, rather than kept on deposit. If this is your choice, then please complete attached SAV/NGSACCOUNTAGREEMENT. Please state the name of your bank. Bank: F-1 2. Escrow/Investments: The City will deliver retainage checks to a selected bank, pursuant to an escrow agreement. The bank will then invest the funds in securities or bonds selected by you, and interest will be paid to you as it accrues. If this is your choice then please complete attached ESCROWAGREEMNT. Preferred Bank: Securities/Bonds: 3. Guarantee Deposit: Retainage will be held by the City. No interest is payable to the Contractor Retainage is normally released 45 days after final acceptance of the work or following receipt of Labor and Industries/Department of Revenue clearance, whichever date is the later. Retainage on landscaping work may be longer, due to its seasonal nature. However, if this project is subject to grant funding, then the retainage may also be held until such time as the Contractor meets its obligations to the City to provide required information and documentation for compliance with the grant funding req ments, State law allows for limited early release of retainage in certain ci Contractor's Slgnature iX5 ,�e ryl Title ' If the Contractor opts to post a retainage bond under RCW 60.28.011, such bond shall be in a form acceptable to the City, shall be with a surety with a minimum of A.M. Best financial strength rating of a minimum of A-. Rev3/18/22 Project No. PW Contract No. r 5, QCjZ_ Page 14 City of Port Orchard Sroufe Water Main Replacement SAVING ACCOUNT AGREEMENT TO BANK: BANK'S ADDRESS: AGENCY: CITY OF PORT ORCHARD 216 Prospect Street Port Orchard WA 98366 CONTRACT NO: PROJECT TITLE: SAVINGS ACCOUNT NO: The estimated completion date of contract is: The undersigned, , herein referred to as the CONTRACTOR, has directed the CITY OF PORT ORCHARD, Washington, hereinafter referred to as the AGENCY, to deliver to you its warrants which shall be payable to you and the CONTRACTOR jointly. Such warrants are to be held and disposed of by you in accordance with the following instructions and upon the terms and conditions hereinafter set forth. INSTRUCTIONS 1. Warrants or checks made payable to you and the CONTRACTOR jointly upon delivery to you shall be endorsed by you and forwarded for collection. The moneys will then be placed by you in an interest -bearing savings account. 2. When and as interest on the savings account accrues and is paid, you shall collect such interest and forward it to the CONTRACTOR at its address designated below unless otherwise director by the CONTRACTOR. 3. You are not authorized to deliver to the CONTRACTOR all or any part of the principal held by you pursuant to this agreement, except in accordance with written instruction from the AGENCY. Compliance with such instructions shall relieve you of any further liability related thereto. 4. The CONTRACTOR agrees to pay you as compensation for your services hereunder as follows: Payment of all fees shall be the sole responsibility of the CONTRACTOR and shall not be deducted from any moneys placed with you pursuant to this agreement until and unless the AGENCY directs the release to the CONTRACTOR, whereupon you shall be granted a first lien upon such moneys released and shall be entitled to reimburse yourself from such moneys for the entire amount of your fees as provided for herein above. In the event that you are made a parry to any litigation with respect to the moneys held by you hereunder, or in the event that the conditions of this agreement are not promptly fulfilled, or that you are required to render any service not provided for in these instructions, or that there is any assignment of the interests of this agreement, or any modification R03�2 Z)0_1� Rev3/18/22 Project No. PW Contract No. ? 00k, Page 15 City of Port Orchard Sroufe Water Main Replacement hereof, you shall be entitled to reasonable compensation for such extraordinary services from the CONTRACTOR and reimbursement from the CONTRACTOR for all costs and expenses, including attorney fees occasioned by such default, delay, controversy or litigation. 5. This agreement shall not be binding until executed by the CONTRACTOR and the AGENCY and accepted by you. 6. This instrument contains the entire agreement between you, the CONTRACTOR and the AGENCY. You are not a party to nor bound by any instrument or agreement other than this. You shall not be required to take notice of any default or any other matter nor be bound by nor required to give notice or demand, nor required to take any action whatever except as herein expressly provided. You shall not be liable for any loss or damage not caused by your own negligence or willful misconduct. 7. The foregoing provisions shall be binding upon the assigns, successors, personal representative and heir of the Parties hereto. Contractor BY: Title: Date: Address: CITY OF PORT ORCHARD Agency nm Date: The above savings account agreement and instruction received and accepted this .20 Rev3/18/22 City of Port Orchard Sroufe Water Main Replacement Bank Name Authorized Bank Officer day of RVa�11-0 } Project No. PW , Contract No. [ a6 oc Page 16 TO BANK: BANK'S ADDRESS: ESCROW AGREEMENT ESCROW NO.: AGENCY: CITY OF PORT ORCHARD 216 Prospect Street Port Orchard WA 98366 CONTRACT NO.: PROJECT TITLE: SROUFE WATER MAIN REPLACEMENT The estimated completion date of contract is: The undersigned, , herein referred to as the CONTRACTOR, has directed the CITY OF PORT ORCHARD, Washington, hereinafter referred to as the AGENCY, to deliver to you its warrants which shall be payable to you and the CONTRACTOR jointly. Such warrants are to be held and disposed of by you in accordance with the following instructions and upon the terms and conditions hereinafter set forth. INSTRUCTIONS 1. Warrants or checks made payable to you and the CONTRACTOR jointly upon delivery to you shall be endorsed by you and forwarded for collection. The moneys will then be used by you to purchase, as directed by the CONTRACTOR, bonds or other securities chosen by the CONTRACTOR and approved by the AGENCY. Attached is a list of such bonds, or other securities approved by the AGENCY. Other bonds or securities, except stocks may be selected by the CONTRACTOR, subject to express written approval of the AGENCY. Purchase of such bonds or other securities shall be in a form which shall allow you alone to reconvert such bonds or other securities into money if you are required to do so by the AGENCY as provided in Paragraph 4 of this Escrow Agreement. 2. When and as interest on the securities held by you pursuant to this agreement accrues and is paid, you shall collect such interest and forward it to the CONTRACTOR at its address designated below unless otherwise directed by the CONTRACTOR. 3. You are not authorized to deliver to the CONTRACTOR all or any part of the securities held by you pursuant to this agreement (or any moneys derived from the sale of such securities, or the negotiation of the AGENCY'S warrants) except in accordance with written Rev3/18/22 Project No. PW Contract No. Page 17 City of Port Orchard Sroufe Water Main Replacement instructions from the AGENCY. Compliance with such instruction shall relieve you of any further liability related thereto. 4. In the event the AGENCY orders you to do so in writing, you shall within thirty-five (35) days of receipt of such order, reconvert into money the securities held by you pursuant to this agreement and return such money together with any other moneys held by you hereunder, to the AGENCY. 5. The CONTRACTOR agrees to pay you as compensation for your services hereunder as follows: Payment of all fees shall be the sole responsibility of the CONTRACTOR and shall not be deducted from any property placed with you pursuant to this agreement until and unless the AGENCY directs the release to the CONTRACTOR of the securities and moneys held hereunder whereupon you shall be granted a first lien upon such property released and shall be entitled to reimburse yourself from such property for the entire amount of your fees as provided for herein above. In the event that are made a party to any litigation with respect to the property held by you hereunder, or in the event that the conditions of this escrow are not promptly fulfilled or that you are required to render any service not provided for in these instructions, or that there is any assignment of the interest of this escrow or any modification hereof, you shall be entitled to reasonable compensation for such extraordinary services from the CONTRACTOR and reimbursement from the CONTRACTOR for all costs and expenses, including attorney fees occasioned by such default, delay, controversy or litigation. 6. This agreement shall not be binding until executed by the CONTRACTOR and the AGENCY and accepted by you. 7. This instrument contains the entire agreement between you, the CONTRACTOR and the AGENCY with respect to this escrow and you are not a party to nor bound by any instrument or agreement other than this; you shall not be required to take notice of any default or any other matter nor be bound by nor be bound by nor required to give notice or demand , nor required to take action whatever except as herein expressly provided; you shall not be liable for any loss or damage not caused by your own negligence or willful misconduct. Rev3/18/22 Project No. PW Contract No. �p� Page 18 City of Port Orchard Sroufe Water Main Replacement The foregone provision shall be binding upon the assigns, successors, personal representative, and heir of the Parties hereto. Contractor By: Title: Date: Address: CITY OF PORT ORCHARD Agency By: Date: The above escrow agreement and instruction received and accepted this 20 . Bank Name Authorized Bank Officer day of SECURITIES AUTHORIZED BY AGENCY 1. Bills, certificates, notes or bonds of the United States; 2. Other obligations of the United States or its agencies; 3. Obligation of any corporation wholly -owned by the government of the United States; 4. Indebtedness of the Federal Nation Mortgage Association; and 5. Time deposits in commercial banks. 9LV9 0VV Rev3/18/22 Project No. PVV Contract Na- i�f 10-29. Page 19 City of Port Orchard Sroufe Water Main Replacement ISSUE IN DUPLICATE PERFORMANCE AND PAYMENT BOND CITY OF PORT ORCHARD SROUFE WATER MAIN REPLACEMENT PROJECT PW PROJECT NO. PW2022-024 Bond to City of Port Orchard, Washington Bond No. 4451671 We. KR Homes LLC and Markel Insurance Company (Principal) (Surety) a Illinois Corporation, and as a surety corporation authorized to become a surety upon Bonds of Contractors with municipal corporations in Washington State, are jointly and severally bound to the City of Port Orchard, Washington ("Owner"), in the penal sum of Three Hundred Seventeen Thousand Five Hundred Forty -Two 68/100 _ Dollars ($ 317,542.68 ), the payment of which sum, on demand, we bind ourselves and our successors, heirs, administrators, executors, or personal representatives, as the case may be. This Performance Bond is provided to secure the performance of Principal in connection with a contract dated , 20_, between Principal and Owner for a project entitled Sroufe Water Main Replacement ("Project") — Public Works Project No. PW2022-024 ("Contract"). The initial penal sum shall equal 100 percent of the Total Bid Price, including all applicable state sales tax, as specified in the Proposal submitted by Principal. NOW, THEREFORE, this Performance and Payment Bond shall be satisfied and released only upon the condition that Principal: Faithfully performs all provisions of the Contract and changes authorized by Owner in the manner and within the time specified as may be extended under the Contract; Pays all laborers, mechanics, subcontractors, lower tier subcontractors, material - persons, and all other persons or agents who supply labor, equipment, or materials to the Project; Pays the taxes, increases and penalties incurred on the Project under Titles 50, 51 and 82 RCW on: (A) Projects referred to in RCW 60.28.011(1)(b); and/or (B) Projects for which the bond is conditioned on the payment of such taxes, increases and penalties; and Posts a two-year warranty/maintenance bond to secure the project. Such bond shall be in the amount of twenty percent (20%) of the project costs. Provided, further that this bond shall remain in full force and effect until released in writing by the City at the request of the Surety or Principal. Rev3/18/22 Project No. PV z 22-02� Contract No. C125-22 Page 20 City of Port Orchard Sroufe Water Main Replacement The surety shall indemnify, defend, and protect the Owner against any claim of direct or indirect loss resulting from the failure: Of the Principal (or any of the employees, subcontractors, or lower tier subcontractors of the Principal) to faithfully perform the Contract, or Of the Principal (or any subcontractor or lower tier subcontractor of the Principal) to pay all laborers, mechanics, subcontractors, lower tier subcontractors, material person, or any other person who provides supplies or provisions for carrying out the work. The liability of Surety shall be limited to the penal sum of this Performance and Payment Bond. No change, extension of time, alteration, or addition to the terms of the Contract or to the Work to be performed under the Contract shall in any way affect Surety's obligation on the Performance Bond. Surety hereby waives notice of any change, extension of time, alteration, or addition to the terms of the Contract or the Work, with the exception that Surety shall be notified if the Contract time is extended by more than twenty percent (20%). If any modification or change increases the total amount to be paid under the Contract, Surety's obligation under this Performance and Payment Bond shall automatically increase in a like amount. Any such increase shall not exceed twenty-five percent (25%) of the original amount of the Performance and Payment Bond without the prior written consent of Surety. This Performance and Payment Bond shall be governed and construed by the laws of the State of Washington, and venue shall be in Kitsap County, Washington. IN WITNESS WHEREOF, the parties have executed this instrument in two (2) identical counterparts this 23rd day of Febi-uary _, 20 23 . KR Homes LLC ignature of Authorized Official Printed Name acid Title Markel Insurance Company Sur t Sig a re of Authorized Official By Justin Cumnock Attorney in Fact (Attach Power of Attorney) Name and address of local office of Anchor•Insura.nce'$t.5urety, Inc Agent and/or Surety Company: �P0 Box Z808, Portlan8, OR 97208 Surety companies executing bonds must appear on..the:current,Ald0o.rit.ed Insurance List in the State of Washington per Section 1-02.7 of the Standard Specifications. • - Rev3/18/22 Project No. PWzozz-oza Contract No.C125-22 Page 21 City of Port Orchard Sroufe Water Main Replacement ACKNOWLEDGEMENT Corporation, Partnership, or Individual STATE OF )ss. COUNTY OF ) On this 1L(day of t �L`C 2Q�3 , before me, the undersigned, a Notary Public in and for the State of W hington, duly commissioned and sworn, personally appeared to me known to be the (check one of the following boxes): , n k_- F+ Ped t n of - 12 H-ovn , . the 7 corporation, ULC, J partnership, 0 individual, of the that executed the foregoing instrument to be the free and voluntary act and deed of said 0 corporation, 0 partnership, n individual for the uses and purposes therein mentioned, and on oath stated that 0 he Oshe was authorized to execute said instrument. WITNESS my hand and official seal hereto affixed the day and year first above written. L-ETICIA ROMANO Notary Public State of Washington License Number 2010064 My Commission Expire. - September 27, 2023 Notary Seal with Ink Stamp Print br type name NOTARY PUBLIC, in and for the State of Washington Residing at My Commission expires: ! -2--7 2 3 Rev3/18/22 Project No. PV1R022-024, Contract NOc125-22 Page 22 City of Port Orchard Sroufe Water Main Replacement SURETY ACKNOWLEDGEMENT STATE OF Washington j )ss. COUNTY OF Clark On this 23rd day of February , 20 23 , before me, the undersigned, a Notary Public in and for the State of Washington, duly commissioned and sworn, personally appeared Justin Cumnock to me known to be the Attorney -In -Fact of Markel Insurance Company the corporation that executed the foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said corporation, for the uses and purposes therein mentioned, and on oath stated that C) he n she was authorized to execute said instrument. WITNESS my hand and official seal hereto affixed the day and year first above written. LETI IA ROMANO Notary Public Stat of Washington License Number 20100641 My Co mission Expires Sep ember 27, 2023 Notary Seal With Ink Stamp Print or type name Leticia Romano NOTARY PUBLIC, in and for the State of Washington Residing Clark County My Commission expires: , September 27,2023 Rev3/18/22 Project No. PW22022-02gContract No. C125-22 Page 23 City of Port Orchard Sroufe Water Main Replacement POA# 3710009 JOINT LIMITED POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS: That SureTec Insurance Company, a Corporation duly organized and existing under the laws of the State of Texas and having its principal office in the County of Harris, Texas and Markel Insurance Company (the "Company"), a corporation duly organized and existing under the laws of the state of Illinois, and having Its principal administrative office In Glen Allen, Virginia, does by these presents make, constitute and appoint: Brent Olson, Gail A. Price, Gloria Bruning, Vicki Mather, Joel Dietzman, Andrew Choruby, Casey Geske, Richard Kowalski, Sterling Drew Roddan, Justin Cumnock, Christopher A. Reburn, Leticia Romano, Chloe Lyons, Philip 0. Forker, Patrick Dooney Their true and lawful agent(s) and attorney(s)-in-fact, each in their separate capacity if more than one is named above, to make, execute, seal and deliver for and on their own behalf, individually as a surety or jointly, as co -sureties, and as their act and deed any and all bonds and other undertaking in suretyship provided, however, that the penal sum of any one such instrument executed hereunder shall not exceed the sum of: Fifty Million and 00/100 Dollars ($50,000,000.00) This Power of Attorney is granted and is signed and sealed under and by the authority ofthe following Resolutions adopted by the Board of Directors of SureTec Insurance Company and Markel Insurance Company: "RESOLVED, Thatthe President, any Senior Vice President, Vice President, Assistant Vice President, Secretary, Assistant Secretary, Treasurer or Assistant Treasurer and each of them hereby is authorized to execute powers of attorney, and such authority can be executed by use of facsimile signature, which may be attested or acknowledged by any officer or attorney, of the company, qualifying the attorney or attorneys named In the given power of attorney, to execute in behalf of, and acknowledge as the act and deed of the SureTec Insurance Company and Markel Insurance Company, as the case may be, all bond undertakings and contracts of suretyship, and to affix the corporate seal thereto." IN WITNESS WHEREOF, Markel Insurance Company and SureTec Insurance Company have caused their official seal to be hereunto affixed and these presents to be signed by their duly authorized officers on the 11th day of October , 2022. SureTec Insurance Company SVpAryC tstli111 ANCrf u/r� fi a By � 7�, y � � A-` BY: Michael C. Keimig, President �."•••�* •"f •,f,I�r�rrrriunti��s�,,` State of Texas u County of Harris: On this 11th day of October , 2022 A. D., before me, a Notary Public ofthe State of Texas, in andfor the County of Harris, duly commissioned and qualified, came THE ABOVE OFFICERS OF THE COMPANIES, to me personally knownto be the individuals and officers described in, who executed the preceding instrument, and they acknowledged the execution of same, and being by me duly sworn, disposed and said that they are the officers ofthe said companies aforesaid, and that the seals affixed to the proceeding instrument are the Corporate Seals of said Companies, and the said Corporate Seals and their signatures as officers were duly affixed and subscribed to the said Instrument by the authority and direction ofthe said companies, and that Resolutions adopted by the Board of Directors of said Companies referred to in the preceding instrument is now in force. IN TESTIMONY WHEREOF, I have hereunto set my hand, and affixed my Official Seal at the County of Harris, the day and year first above written. ..�.PrY;�� • xEN1A cHAVEz r° Nolt.y Public, Slale of TOxas • ^ �3 Notary ID# 12911765-9 By: My CorNdsf lan Expires H fa hayez, Notary Public ��'f,d�'w'•'" SEP`f-EMBER 10, 2024 y ammission expires 9/10/2024 We, the undersigned Officers of SureTec Insurance Company and Markel Insurance Company do herby certify that the original POWER OF ATTORNEY of which the foregoing is a full, true and correct copy is still in full force and effect and has not been revoked. IN WITNESS WHEREOF, we have hereunto set our hands, and affixed the Seals of said Companies, on the 23rd day of February 2023 ur clnsur nce ny _ By. M, 3r t Beaty, §1,.ssl.,tfnt Secretary " r• Ma ellnsuranceCompany By:� Ize sC'drew Marquis, AssfstantSe ry Any Instrument Issued in excess of the penalty stated above Is totally void and without anyva!idity. 3710009 For ve rification of the authority of this Power you may call (713 )812-0800 on any business day between, 8:30 AM and 5:00 PM CST. PERFORMANCE AND PAYMENT BOND CITY OF PORT ORCHARD SROUFE WATER MAIN REPLACEMENT PROJECT PW PROJECT NO. PW2022-024 Bond to City of Port Orchard, Washington Bond No. 4451671 We, KR Hornes LLC ,and (Principal) ISSUE IN DUPLICATE Markel Insurance Company (Surety) a Illinois Corporation, and as a surety corporation authorized to become a surety upon Bonds of Contractors with municipal corporations in Washington State, are jointly and severally bound to the City of Port Orchard, Washington ("Owner"), in the penal sum of Three Hundred Seventeen Thousand Five Hundred Forty -Two 68/100 — Dollars ($ 317 542.68 ), the payment of which sum, on demand, we bind ourselves and our successors, heirs, administrators, executors, or personal representatives, as the case may be. This Performance Bond is provided to secure the performance of Principal in connection with a contract dated_ , 20_, between Principal and Owner for a project entitled Sroufe Water Main Replacement ("Project") — Public Works Project No. PW2022-024 ("Contract"). The initial penal sum shall equal 100 percent of the Total Bid Price, including all applicable state sales tax, as specified in the Proposal submitted by Principal. NOW, THEREFORE, this Performance and Payment Bond shall be satisfied and released only upon the condition that Principal: Faithfully performs all provisions of the Contract and changes authorized by Owner in the manner and within the time specified as may be extended under the Contract; Pays all laborers, mechanics, subcontractors, lower tier subcontractors, material - persons, and all other persons or agents who supply labor, equipment, or materials to the Project; Pays the taxes, increases and penalties incurred on the Project under Titles 50, 51 and 82 RCW on: (A) Projects referred to in RCW 60.28.011(1)(b); and/or (B) Projects for which the bond is conditioned on the payment of such taxes, increases and penalties; and Posts a two-year warranty/maintenance bond to secure the project. Such bond shall be in the amount of twenty percent (20%) of the project costs. Provided, further that this bond shall remain in full force and effect until released in writing by the City at the request of the Surety or Principal. Rev3/18/22 Project No. PVIr:I'z_',�-0 Contract No. C125-22 Page 20 City of Port Orchard Sroufe Water Main Replacement The surety shall indemnify, defend, and protect the Owner against any claim of direct or indirect loss resulting from the failure: Of the Principal (or any of the employees, subcontractors, or lower tier subcontractors of the Principal) to faithfully perform the Contract, or Of the Principal (or any subcontractor or lower tier subcontractor of the Principal) to pay all laborers, mechanics, subcontractors, lower tier subcontractors, material person, or any other person who provides supplies or provisions for carrying out the work. The liability of Surety shall be limited to the penal sum of this Performance and Payment Bond. No change, extension of time, alteration, or addition to the terms of the Contract or to the Work to be performed under the Contract shall in any way affect Surety's obligation on the Performance Bond. Surety hereby waives notice of any change, extension of time, alteration, or addition to the terms of the Contract or the Work, with the exception that Surety shall be notified if the Contract time is extended by more than twenty percent (20%). If any modification or change increases the total amount to be paid under the Contract, Surety's obligation under this Performance and Payment Bond shall automatically increase in a like amount. Any such increase shall not exceed twenty-five percent (25%) of the original amount of the Performance and Payment Bond without the prior written consent of Surety. This Performance and Payment Bond shall be governed and construed by the laws of the State of Washington, and venue shall be in Kitsap County, Washington. IN WITNESS WHEREOF, the parties have executed this instrument in two (2) identical counterparts this 23rd d�y-Qf February _, 20 23 . KR Homes L Markel Insurance Company Prin I Su e y Signatur of Authorized Official Sig a ure of Authorized Official By Justin Cumnock Printed Name a d Title Attorney in Fact (Attach Power of Attorney) Name and address of local office of Anchor Insuranc,& Surety, Inc Agent and/or Surety Company: PO Box_280+1, Nortlan4;-013.97208 Surety companies executing bonds must appear on the current AuthiaA rO Insurance List in the State of Washington per Section 1-02.7 of the Standard SPI-26 cations. Rev3/18/22 Project No. PW2022-02a Contract No.C125-22 Page 21 City of Port Orchard Sroufe Water Main Replacement ACKNOWLEDGEMENT Corporation, Partnership, or Individual STATE OF )ss. COUNTY OF On this 7:�,tv1 day of e 6vr- � L , 20 =- , before me, the undersigned, a Notary Public in and for the State of W hington, duly commissioned and sworn, personally appeared ku✓+ ec�c�t,c , to me known to be the (check one of the following boxes): of w�� the corporation, ILL C partnership, n individual, of the that executed the foregoing instrument to be the free and voluntary act and deed of said 0 corporation, 0 partnership, 0 individual for the uses and purposes therein mentioned, and on oath stated that n he Oshe was authorized to execute said instrument. WITNESS my hand and official seal hereto affixed the day and year first above written. '�Prid or type name LETICIA ROMANO Notary Public State of Washington License Number 201 00E 41 My Commission Expires S(,ptember 27. 2023 Notary Seal with Ink Stamp NOTARY PUBLIC, in and for the State of Washington Residing at My Commission expires: Rev3/18/22 Project No. PV1R022-024, Contract NOc125-22 Page 22 City of Port Orchard Sroufe Water Main Replacement SURETY ACKNOWLEDGEMENT STATE OF Washington } )ss. COUNTY OF Clark y On this 23rd day of February , 20 23 , before me, the undersigned, a Notary Public in and for the State of Washington, duly commissioned and sworn, personally appeared Justin Cumnock to me known to be the Attorney -In -Fact of Markel Insurance Company , the corporation that executed the foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said corporation, for the uses and purposes therein mentioned, and on oath stated that 0 he 0 she was authorized to execute said instrument. WITNESS my hand and official seal hereto affixed the day and year first above written. rent or type name Leticia Romano LE ICIA ROMANO { Notary Public State of Washington i License Number 20100641 My Commission Expires Se tember27, 2023 Notary Seal With Ink Stamp NOTARY PUBLIC, in and for the State of Washington Residing Clark County My Commission expires: September 27,2023 Rev3/18/22 Project No. PV z2o22-o2aContract No. cizs-zz Page 23 City of Port Orchard Sroufe Water Main Replacement POA# 3710009 JOINT LIMITED POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS: That SureTec Insurance Company, a Corporation duly organized and existing under the laws of the State of Texas and having its principal office in the County of Harris, Texas and Markel Insurance Company (the "Company"), a corporation duly organized and existing under the laws of the state of Illinois, and having Its principal administrative office in Glen Allen, Virginia, does by these presents make, constitute and appoint: Brent Olson, Gail A. Price, Gloria Bruning, Vicki Mather, Joel Dietzman, Andrew Choruby, Casey Geske, Richard Kowalski, Sterling Drew Roddan, Justin Cumnock, Christopher A. Reburn, Leticia Romano, Chloe Lyons, Philip O. Forker, Patrick Dooney Their true and lawful agent(s) and attorney(s)-in-fact, each in their separate capacity if more than one Is named above, to make, execute, seal and deliver for and on their own behalf, individually as a surety or jointly, as co -sureties, and as their act and deed any and all bonds and other undertaking in suretyship provided, however, that the penal sum of any one such instrument executed hereunder shall not exceed the sum of: Fifty Million and 00/100 Dollars ($50,000,000.00) This Power of Attorney is granted and is signed and sealed under and by the authority ofthe following Resolutions adopted by the Board of Directors of SureTec Insurance Company and Markel Insurance Company: "RESOLVED, Thatthe President, any Senior Vice President, Vice President, Assistant Vice President, Secretary, Assistant Secretary, Treasurer or Assistant Treasurer and each of them hereby is authorized to execute powers of attorney, and such authority can be executed by use of facsimile signature, which may be attested or acknowledged by any officer or attorney, of the company, qualifying the attorney or attorneys named In the given power of attorney, to execute in behalf of, and acknowledge as the act and deed of the SureTec Insurance Company and Markel Insurance Company, as the case may be, all bond undertakings and contracts of suretyship, and to affix the corporate seal thereto." IN WITNESS WHEREOF, Markel Insurance Company and SureTec Insurance Company have caused their official seal to be hereunto affixed and these presents to be signed by their duly authorized officers on the 11th day of October , 2022 . SureTec Insurance Company �AyyC, �s�tiVlt~'++4 B J w SEAL 'ti= v: b Michael C. Keimig, President State of Texas County of Harris: On this 11th day of October , 2022 A. D., before me, a Notary Public ofthe State of Texas, in and for the County of Harris, duly commissioned and qualified, came THE ABOVE OFFICERS OF THE COMPANIES, to me personally known to be the individuals and officers described in, who executed the preceding instrument, and they acknowledged the execution of same, and being by me'duly sworn, disposed and said that they are the officers ofthe said companies aforesaid, and that the seals affixed to the proceeding instrument are the Corporate Seals of said Companies, and the said Corporate Seals and their signatures as officers were duly affixed and subscribed to the said Instrument by the authority and direction of the said companies, and that Resolutions adopted by the Board of Directors of said Companies referred to In the preceding instrument is now In force. IN TESTIMONY WHEREOF, I have hereunto set my hand, and affixed my Official Seal atthe County of Harris, the day and year first above written. XENIA CHAVEZ _ r°• Notary Public, State of Texas *E ■s Notary 10# 12911766.0 BY: My commisslon Expires X is haven, Notary Public SEPTEMBER '1 Q, 2a24 y ommission expires 9/1012024 We, the undersigned Officers of SureTec Insurance Company and Markel Insurance Company do herby certify that the original POWER OF ATTORNEY of which the foregoing is a full, true and correct copy is still in full force and effect and has not been revoked. IN WITNESS WHEREOF, we have hereunto set our hands, and affixed the Seals of said Companies, on the 23rd day of Februa 2023 QM.13 Insur ncWy. Ma el Insurance Company BY. By: Beaty, Andrew Marquis, Assistant Se ry Any Instrument Issued inexress of the penalty stated above is totally voidand without arnyGAiaity. 3710009 For verification of the authority of this Power you may call (713)812-0900on any utzjriessaay betVeen 9:30AM and 5:00 PM CST. CITY OF PORT ORCHARD MAINTENANCE/WARRANTY BOND Project #: PW2022-024 Surety Bond #: Date Posted: Expiration Date: RE: Project Name: SROUFE WATER MAIN REPLACEMENT Owner/Developer/Contractor: Project Address: KNOW ALL PERSONS BY THESE PRESENTS: That we, (hereinafter called the "Principal"), and , a corporation organized under the laws of the State of , and authorized to transact surety business in the State of Washington (hereinafter called the "Surety"), are held and firmly bound unto the City of Port Orchard, Washington, in the sum of dollars ($ ) 20% of the total contract amount, lawful money of the United States of America, for the payment of which sum we and each of us bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, by these presents. THE CONDITIONS of the above obligation are such that: WHEREAS, the above named Principal has constructed and installed certain improvements on public property in connection with a project as described above within the City of Port Orchard; and WHEREAS, the Principal is required to post a bond for the twenty-four (24) months following written and final acceptance of the project in order to provide security for the obligation of the Principal to repair and/or replace said improvements against defects in workmanship, materials or installation during the twenty-four (24) months after written and final approval/acceptance of the same by the City; NOW, THEREFORE, this Maintenance Bond has been secured and is hereby submitted to the City. It is understood and agreed that this obligation shall continue in effect until released in writing by the City, but only after the Principal has performed and satisfied the following conditions: A. The work or improvements installed by the Principal and subject to the terms and conditions of this Bond are as follows: (insert complete description of work here) B. The Principal and Surety agree that the work and improvements installed in the above - referenced project shall remain free from defects in material, workmanship and installation (or, in the case of landscaping, shall survive,) for a period of twenty-four (24) months after written and final acceptance of the same and approval by the City. Maintenance is defined as acts Rev3/18/22 Project No. PW Contract No. Page 24 City of Port Orchard Sroufe Water Main Replacement carried out to prevent a decline, lapse or cessation of the state of the project or improvements as accepted by the City during the twenty-four (24) month period after final and written acceptance, and includes, but is not limited to, repair or replacement of defective workmanship, materials or installations. C. The Principal shall, at its sole cost and expense, carefully replace and/or repair any damage or defects in workmanship, materials or installation to the City -owned real property on which improvements have been installed and leave the same in as good condition or better as it was before commencement of the work. D. The Principal and the Surety agree that in the event any of the improvements or restoration work installed or completed by the Principal as described herein, fail to remain free from defects in materials, workmanship or installation (or in the case of landscaping, fail to survive), for a period of twenty-four (24) months from the date of approval/acceptance of the work by the City, the Principal shall repair and/replace the same within ten (10) days of demand by the City, and if the Principal should fail to do so, then the Surety shall: 1. Within twenty (20) days of demand of the City, make written commitment to the City that it will either: a). remedy the default itself with reasonable diligence pursuant to a time schedule acceptable to the City; or b). tender to the City within an additional ten (10) days the amount necessary, as determined by the City, for the City to remedy the default, up to the total bond amount. Upon completion of the Surety's duties under either of the options above, the Surety shall then have fulfilled its obligations under this bond. If the Surety elects to fulfill its obligation pursuant to the requirements of subsection D(1)(b), the City shall notify the Surety of the actual cost of the remedy, upon completion of the remedy. The City shall return, without interest, any overpayment made by the Surety, and the Surety shall pay to the City any actual costs which exceeded the City estimate, limited to the bond amount. 2. In the event the Principal fails to make repairs or provide maintenance within the time period requested by the City, then the City, its employees and agents shall have the right at the City's sole election to enter onto said property described above for the purpose of repairing or maintaining the improvements. This provision shall not be construed as creating an obligation on the part of the City or its representatives to repair or maintain such improvements. E. Corrections. Any corrections required by the City shall be commenced within ten (10) days of notification by the City and completed within thirty (30) days of the date of notification. If the work is not performed in a timely manner, the City shall have the right, without recourse to legal action, to take such action under this bond as described in Section D above. Rev3/18/22 Project No. PW Contract No. Page 25 City of Port Orchard Sroufe Water Main Replacement F. Extensions and Changes. No change, extension of time, alteration or addition to the work to be performed by the Principal shall affect the obligation of the Principal or Surety on this bond, unless the City specifically agrees, in writing, to such alteration, addition, extension or change. The Surety waives notice of any such change, extension, alteration or addition thereunder. G. Enforcement. It is specifically agreed by and between the parties that in the event any legal action must be taken to enforce the provisions of this bond or to collect said bond, the prevailing party shall be entitled to collect its costs and reasonable attorney fees as a part of the reasonable costs of securing the obligation hereunder. In the event of settlement or resolution of these issues prior to the filing of any suit, the actual costs incurred by the City, including reasonable attorney fees, shall be considered a part of the obligation hereunder secured. Said costs and reasonable legal fees shall be recoverable by the prevailing party, not only from the proceeds of this bond, but also over and above said bond as a part of any recovery (including recovery on the bond) in any judicial proceeding. The Surety hereby agrees that this bond shall be governed by the laws of the State of Washington. Venue of any litigation arising out of this bond shall be in Kitsap County Superior Court. H. Bond Expiration. This bond shall remain in full force and effect until the obligations secured hereby have been fully performed and until released in writing by the City at the request of the Surety or Principal. DATED this day of , 20_. SURETY COMPANY DEVELOPER/OWNER (Signature must be notarized) (Signature must be notarized) By: Its: Business Name: Business Address: City/State/Zip Code: Telephone Number: Vill. By:_ Its: Business Name: Business Address: City/State/Zip Code: Telephone Number: CHECK FOR ATTACHED NOTARY SIGNATURE Individual (Form P-1) Corporation (Form P-2) Surety Company (Form-P-2) Rev3/18/22 Project No. PW Contract No. Page 26 City of Port Orchard Sroufe Water Main Replacement FORM P-1 / NOTARY BLOCK (Use For Individual/Sole Proprietor Only) STATE OF WASHINGTON } } ss. COUNTY OF KITSAP } I certify that I know or have satisfactory evidence that is the person who appeared before me, and said person acknowledged that (he/she) signed this instrument, and acknowledged it to be (his/her) free and voluntary act for the uses and purposes mentioned in the instrument. Dated: (print or type name) NOTARY PUBLIC in and for the State of Washington, residing at: My Commission expi Rev3/18/22 Project No. PW Contract No. Page 27 City of Port Orchard Sroufe Water Main Replacement FORM P-2 / NOTARY BLOCK (Use For Partnership or Corporation Only) (Developer/Owner) STATE OF WASHINGTON I ss. COUNTY OF I certify that I know or have satisfactory evidence that person who appeared before me, and said person acknowledged as the of that is the (he/she) signed this instrument, on oath stated that (he/she) was authorized to execute the instrument and acknowledged it to be (his/her) free and voluntary act for the uses and purposes mentioned in the instrument. Dated: (print or type name) NOTARY PUBLIC in and for the State of Washington, residing at: My Commission expires: Rev3/18/22 Project No. PW Contract No. Page 28 City of Port Orchard Sroufe Water Main Replacement FORM P-2/NOTARY BLOCK (Surety Company) STATE OF WASHINGTON ) ss. COUNTY OF ) I certify that I know or have satisfactory evidence that is the person who appeared before me, and said person acknowledged as the of that (he/she) signed this instrument, on oath stated that (he/she) was authorized to execute the instrument and acknowledged it to be (his/her) free and voluntary act for the uses and purposes mentioned in the instrument. Dated: (print or type name) NOTARY PUBLIC in and for the State of Washington, residing at: My Commission expires: Rev3/18/22 Project No. PW Contract No. Page 29 City of Port Orchard Sroufe Water Main Replacement CERTIFICATE OF LIABILITY INSURANCE DATE(MM/DD/YYYY) 02/23/2023 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 360 425 3200 360 578 1001 N CIE: Mark Kuning Ins Agy Inc Mark Kuning Ins Agency Inc PHO MCIL. im 360 425 3200 (IX Not: 360 578 1001 1556 3rd Ave A net�ss: mkunin_gafarmersagent.com INSURED KR Homes LLC PO Box 856 Wnlock WA 98596 I ruCK insurance tXCnEE Mid Century Insurance Fire Insurance Exchan, COVERAGES CFI2TICICATF Alt lRAPPO- oC\1rQtf%K1 art IRAMCo. NAIC d 21709 21652 21687 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 MAY 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. INTk TYPE OF INSURANCE ISDL BR POLICY EFF POLICY EXP POLICY NUMBER MIDD YY (MMIDDNM LIMITS E GENERAL LIABILITY COMMERCIAL GENERAL LIABILITY ✓ EACH OCCURRENCE $ 1 ,000,000 DAMAGE 0 RE r $ 1 CLAIMS -MADE �✓ OCCUR 0100149057-1 05/01/2022 05/01/2023 MEDEXP (Any oneperson) $ PERSONAL & ADV INJURY $1,000,000 GENERAL AGGREGATE $ 2 (=0Q000 GEN'L AGGREGATE LIMIT APPLIES PER: _ PRODUCTS - COMP/OP AGG $ 2 00 000 PRO - POLICY LOC $ AUTOMOBILE LIABILITY ✓ ✓ COMB NED SINGLE LIMI a accidantl isDk 000 BODILY INJURY (Per person) $ ANY AUTO D _ ALL S UTONED AUTOS 606972057 12/09/2023 12/09/2024 BODILY INJURY (Per accident) $ PROPERTY DAMAGE Per accident $ HIRED AUTOS $/ NON -OWNED AUTOS UMBRELLA UAB OCCUR EACH OCCURRENCE $ AGGREGATE EXCESS LIAR CLAIMS -MADE DED RETENTION $ $ WORKERS COMPENSATION WC STATU- I I OTH- IE AND EMPLOYERS' LIABILITY Y / N ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? © N / A ✓ * 0100149057 1 05/01/2022 5/01/2023 EL EACH ACCIDENT $ 1 000 000 E. L DISEASE - EA EMPLOYEE $ 1 000 000 (Mandatory In NH) If yyes, describe under DESCRIPTION 0F OPERATIONS below E.L. DISEASE - POLICY LIMIT 1 - $ 1 onn noo DESCRIPTION OF OPERATIONS / LOCATIONS I VEHICLES (Attach ACORD 101, Additional Remarks Schedule, If more space Is required) City of Port Orchard is Additional Insured with Completed Products and Operations on the above policies and will be Primary and Non Contributory with waiver of subrogation with per project aggregate. trr-K I IrIL:A It "UL.ULR CANCELLATION City of Port Orchard SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE :216 Prospect St THE ACCORDANCE WITH DATE E POLICY PROVISIONS. NOTICE WILL BE DELIVERED IN Port Orchard WA 98366 AUTHORIZED REPRESENTATIVE 019 2010 ACORD CORPORATION. All rights reserved. ACORD 25 (2010/06) The ACORD name and logo are registered mar ks CORD