HomeMy WebLinkAboutCAG2019-098 - Original - 88th Ave South Water and Sewer Construction T
Records Management Document
CONTRACT COVER SHEET
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Vendor Name: Polygon VVLH, LLC
Vendor Number (JDE):
Contract Number (City Clerk);
Category: Contract Agreement
Sub-Category (if applicable): None
Project Name: 88th Avenue South Water and Sewer Construction
Contract Execution Date: Mayor's signature Termination Date: Proj completion
Contract Manager: Chad Bieren Department: PVV: Engineering
Contract Amount: $899,805.89
Budgeted: 571 Grant?
Part of NEW Budget: Local: State: Federal:
Related to a New Position: EI
Basis for Selection of Contractor? Other
Approval Authority: F Director F Mayor 7 City Council
Other Details: To meet scheduled openings for both the S, 224th St. Proiect and The
Ridge in 2019, Polygon has requested that the City construct the off-site water and
sewer improvements on behalf of Polygon and Polygon agrees to reimburse the City.
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CONSTRUCTION AND REIMBURSEMENT AGREEMENT
Sath Avenue South Water and Sewer Construction
This construction and reimbursement agreement ("Agreement") is between the CITY
OF KENT, a Washington municipal corporation ("City"), and POLYGON WLH, LLC a
Delaware limited liability company ("Polygon").
RECITALS
A. Polygon is constructing a residential development called The Ridge along the
22300 block of 88th Avenue S. in Kent, Washington. The City is simultaneously
completing its Local Improvement District #363 - S. 224th Street Improvements
Phase II Project ("S. 224t" St. Project") along 88th Avenue S., adjacent to and north
of The Ridge.
B. As part of The Ridge construction, Polygon is required to extend improvements
off-site for potable water ("water") and sanitary sewer ("sewer") to meet the
demands of its development. Polygon designed these offsite improvements to the
satisfaction of the City and the City granted a permit (#2173134) on December 28,
2017 for construction of on-site and off-site civil construction related to The
Ridge. These improvements were to be completed by autumn 2018 to accommodate
The Ridge and Kent's S. 224th St. Project.
C. Polygon's contractor attempted to construct the sewer improvements in the
summer of 2018, but was not able to complete the work and meet the City's
construction standards for an acceptable sewer system due to unforeseen
circumstances beyond Polygon's control. Polygon's contractor did not attempt to
construct the water line along 88m Avenue S. in 2018 because it was unable to
complete the sewer line to the City's and Polygon's satisfaction.
D. Due to construction timelines for The Ridge and the S. 224th Street Project,
Polygon and its contractor do not have adequate time to reconstruct and complete
the water and sewer improvements in 88m Avenue S. without detrimental impact to
the schedules of both projects. The City has received contractor bids the S. 224th St.
Project and will construct the improvements in 2019. In order to meet scheduled
openings for both the S. 224th Street Project and The Ridge in 2019, Polygon has
requested that the City construct the off-site water and sewer improvements on
behalf of Polygon and Polygon agrees to reimburse the City for the expense of doing
SO.
1
The parties therefore agree as follows.
AGREEMENT
1. PROJECT DESIGN AND CONSTRUCTION
1.1 The City will construct the water and sewer improvements along 88th
Avenue S ("Project') as shown in Exhibit A and will provide the necessary
engineering, administrative, inspection, clerical and other services necessary to
complete this work.
1.2 The City will be responsible for the removal of the previously installed
defective sewer line from Washington State Plane Coordinate System Northing
150074.96/Easting 1296638.68 to Northing 151431.62/Easting 1297106.67. This
removal will be included as part of the S. 224t^ Street Project construction contract.
1.3 The City will be responsible for acceptance and maintenance of the
Project and will be the sole owner of the improvements once they are accepted as
complete by the City.
2. REIMBURSEMENT
2.1 The City has included separate pay schedules for the water and sewer
improvements in the S. 224' Street Project bid documents.
2.2 Project costs are estimated at $600,000.00 for sewer and $300,000.00
for water; however Polygon shall reimburse the City for all costs reasonably incurred
by the City to complete the Project. The final and actual costs will be based on final
quantities of materials placed, as calculated by the City via its on-site Construction
Project Manager and may also include, but not be limited to staff time for engineering
and construction management and consultant costs for quality control. Labor and
Materials costs will be calculated using the bid received from Scarsella Bros. Inc, as
shown in Schedules IIB and IIIB of Exhibit B.
2
0
2.3 The City will provide Polygon with accurate and complete invoices
showing the final and actual Project costs. Polygon agrees to pay the City within 30
business days of receiving an invoice from the City. Timely payment of invoices shall
not be a prerequisite or condition of issuance of permits, inspections or certificates
of occupancy for The Ridge.
2.4 Any dispute between the parties regarding reimbursement of costs
under this Agreement shall not delay issuance of building permits or certificates of
occupancy for The Ridge homes. In the event of any dispute concerning a payment,
the parties will promptly meet in person and attempt to resolve the dispute. If after
holding at least one meeting the parties cannot resolve their differences, then
Polygon may either: (1) provide the payment to the City; or (2) provide the payment
to City, but note that the payment is under protest and the matter will be resolved
pursuant to the terms of Section 7.4 of this Agreement.
3. TIMING OF WATER AND SEWER SERVICE IMPROVEMENTS. The City
anticipates completing the Project, including acceptance as complete by the City
under Section 1.3, and water and sewer service is expected to be available to serve
The Ridge by July 1, 2019. In the interim, the City will issue side sewer permits to
Polygon upon submission of a complete application in order to allow for issuance of
building permits and construction of homes. In the event the Project is not completed
by July 1, 2019 and certificates of occupancy are otherwise ready to be issued for
The Ridge, the City will allow Polygon to provide temporary water and sewer at its
own cost to serve The Ridge and the City will approve temporary certificates of
occupancy until the Project is complete.
4. TERM AND TERMINATION.
4.1 This Agreement shall remain in effect until the Project is completed and
Polygon has paid the City the actual and final Project costs.
4.2 Either party may terminate this Agreement by written notice to the other
party if the other party materially breaches any provision of this Agreement and fails
to cure such breach within thirty (30) days after its receipt of written notice of breach.
Any extra costs, expenses or damages incurred by the non-defaulting party as a
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result of such termination shall be borne exclusively by the defaulting party. The
rights and remedies under this provision are in addition to any other rights or
remedies available to the non-defaulting party under contract or applicable law.
Termination will not relieve the defaulting party of any obligations which arise out of
work performed prior to the effective date of termination.
S. INSURANCE AND INDEMNIFICATION.
The City shall ensure that all contractors and consultants, and all work performed for
the Project is insured consistent with industry best practices. The City shall obtain
indemnification, defense and hold harmless agreements from all contractors and
consultants as provided for under the laws of the State of Washington.
6. NOTICE.
All communications regarding this Agreement shall be sent to the parties at the
addresses specified in this Section 6. Any written notice shall become effective upon
delivery, but in any event three (3) calendar 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 Section.
To City: Chad Bieren
220 Fourth Avenue South
Kent, WA 98032
Phone: (253) 856-5500
Polygon:
Nick Abdelnour
Polygon WLH, LLC
11624 SE 5tn Street, Suite 100
Bellevue, WA 98005
(425) 586-7700
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7. MISCELLANEOUS.
7.1 Compliance with Laws. The parties shall comply with all federal, state
and local laws, rules and regulations throughout every aspect in the performance of
this Agreement.
7.2 Nonwaiver of Breach. The failure of a party to insist upon strict
performance of any of the terms and rights contained herein, or to exercise any
option herein conferred in one or more instances, shall not be constructed to be a
waiver or relinquishment of those terms and rights and they shall remain in full force
and effect.
7.3 Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Washington. If any dispute arises between
the parties or between any party and the contractor under any of the provisions of
this Agreement, resolution of that dispute shall be available only through the
jurisdiction, venue and rules of the King County Superior Court, King County,
Washington.
7.4 Dispute Resolution Procedure. Any dispute or claim arising between the
Parties relating to this Agreement, shall be subject to the dispute resolution
procedures set forth in Section 2.4 and this Section 7.4. If a dispute arises, the parties
will promptly meet in person and attempt to resolve the dispute through mutual
negotiation. If the parties are unable to resolve the dispute through such negotiation
within thirty (30) days, then the parties may agree to submit the matter to mediation
or other alternative dispute resolution process. If after this process the dispute is still
unresolved, then either party is entitled to pursue any legal remedy available in a
court of law.
7.4 Attorney's Fees. To the extent not inconsistent with RCW 39.04.240, in
any claim or lawsuit for damages arising from the parties' performance of this
Agreement, each party shall be responsible for payment of its own legal costs and
5
attorney's fees incurred in defending or bringing such claim or lawsuit; however,
nothing in this subsection shall limit a party's right to indemnification under Section
5 of this Agreement.
7.5 Modification. No waiver, alteration, or modification of any of the
provisions of this Agreement shall be valid or binding unless in writing and executed
by both parties.
7.6 Severability. If any one or more sections, sub-sections, or sentences of
this Agreement are held to be unconstitutional or invalid, that decision shall not affect
the validity of the remaining portion of this Agreement and the remainder shall
remain in full force and effect.
7.7 Relationship. It is understood and agreed that no agency, employment,
joint venture, co-employer or partnership is created by this Agreement. No party
shall (i) have the power or authority to act for another in any manner to create
obligations or debts which would be binding upon another, and; (ii) be responsible
for any obligation or expense whatsoever of another.
7.8 Force Majeure. A party will not be in breach of this Agreement if unable
to perform its respective obligations as a result of the occurrence of an event of"force
majeure," which shall include, but not be limited to, acts of God, acts of the
government of the United States or of any state or political subdivision thereof,
strikes, civil riots or disturbances, fire, floods, explosions, earthquakes, wind, storms,
hurricanes, lightning or other similar catastrophes or other causes beyond the parties'
reasonable control. All work under this Agreement shall commence or recommence
at a reasonably immediate time after any event of "force majeure."
7.9 Entire Agreement. The written provisions and terms of this Agreement,
together with any attached Exhibits, supersede all prior verbal statements by any
representative of the City, and those statements shall not be construed as forming a
part of or altering in any manner this agreement. This Agreement and any attached
Exhibits contain the entire Agreement between the parties. Should any language in
any Exhibit to this Agreement conflict with any language contained in this Agreement,
the terms of this Agreement shall prevail.
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7.10 Binding Nature. The rights and responsibilities contained in this
Agreement shall inure to the benefit of and are binding upon the Parties and their
respective successors in interest and assigns.
7.12 Counterparts. The parties may sign this Agreement in several
counterparts, each of which will be deemed an original but all of which together will
constitute one instrument.
7.13 Effective date. This Agreement will become effective when all the
parties have signed it. The date this agreement is signed by the last party to sign it
will be deemed the date of this Agreement.
Each party is signing this Agreement on the date stated below that party's
signature.
CITY OF KENT POLYGON WLH, LLC
a Delaware limited liability
company
By; ry — By;
Dana Ralph Nick Abdelnour
Its: Mayor Its: Authorized Agent
DATE: k `9 DATE:
APPROVED AS TO FORM: APPROVED AS TO FORM:
By: By:,,
�... .,_
Kent Law Department Legal Counsel
7
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EXHIBIT B
LID 363: S. 224th St. Project
88th Ave. S./S. 218th St. Improvements
S. 222nd St. to 94th PI. S.
Bid Opening: January 24, 2019, 11:00 AM Scarsella Bros., Inc.
PO Box 68697
Seattle,WA 98168-0697
ITEM DESCRIPTION QTV UNIT UNIT TOTAL
NO, PRICE AMOUNT
SCHEDULE II B: 88TH AVE. WATER
2515 12'' Connection to Existing Water Main 1 EA 3,600.00 $3,600.00
2535 12'' Diameter Restrained Joint Ductile Iron, Cl 52 1,370 LF 73.75 $101,037.50
Water Main Pine
2540 Hydrant Assembly 2 EA 8,230.00 $16,460.00
2555 Shoring or Extra Excavation Class B 8,250 SF 0.50 $4,125.00
2560 Foundation Material, Class I&II for Water Main 100 TON 48.15 $4,815.00
2580 Crushed Surfacing Top Course, 5/8" Minus 860 TON 22.50 $19,350.00
2585 Gravel Borrow, Including Haul&Compaction 1,650 TON 17,50 $28,875.00
SUB TOTAL $178,262.50
100/a SALES TAX $17,826.25
SCHEDULE II B TOTAL $196,088.75
SCHEDULE III B: 88TH AVE. SEWER
3505 Remove Existing Sanitary Sewer Pipe 1,470 LF 10.00 $14,700.00
3510 Remove Existing Catch Basin or Manhole 8 EA 600.00 $4,800.00
3515 Ductile Iron Sewer Pipe, 8'' Diameter Class 52 Epoxy 1,470 LF 225.15 $330,970.50
Coated
3550 Manhole Under 12', Type 1 48" Diameter 5 EA 4,060.00 $20,300.00
3560 Manhole 12'to 20' Type 1 48'' Diameter 1 EA 6,700.00 $6,700.00
3585 Locking Manhole Frame &Cover 6 EA 540.00 $3,240.00
3587 Shoring or Extra Excavation Class B 17,500 SF 0.50 $8,750.00
3588 Foundation Material, Class I&II 940 TON 48.15 $45,261.00
3590 Crushed Surfacing Top Course, 5/8" Minus 870 TON 22.50 $19,575.00
3595 Gravel Borrow, Including Haul &Compaction 4,500 TON 17.50 $78,750.00
SUB TOTAL $533,046.50
10%SALES TAX $53,304.65
SCHEDULE III B TOTAL $586,351.15
TOTAL SCHEDULES IIB AND IIIB $782,439.90
Construction Project Management 15% $117,365.99
Staff time for engineering, construction management,
and consultant costs
TOTAL PROJECT COST $899,805.89
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8.P
Budd K E N T
W as N INGTON
DATE: February 5, 2019
TO: Kent City Council
SUBJECT: Construction Agreement with Polygon Northwest for The
Ridge Townhome Development - Authorize
MOTION: Authorize the Mayor to sign the Construction and
Reimbursement Agreement with Polygon Northwest to complete water and
sanitary sewer improvements along 88t" Avenue South for The Ridge
Townhome development as part of the South 224th Street Improvements -
Phase II project, subject to final terms and conditions acceptable to the
City Attorney and Public Works Director.
SUMMARY: Polygon Northwest is constructing a residential development called
The Ridge along the 22300 block of 881h Avenue S. The city is simultaneously
completing the Local Improvement District #363 S. 224th Street Improvements -
Phase II project adjacent to and north of The Ridge. In order to complete its
development, Polygon requires water and sanitary sewer service to The Ridge.
Construction of these utilities was to have been completed in 2018; however,
Polygon's contractor was not able to complete the work and meet the city's
construction standards.
Due to the timing of the city's project, Polygon and city staff members agreed that
it would be better to include the water and sanitary sewer improvements in the
city's construction project rather than managing two contractors in the same work
zone. The attached agreement includes provisions for the city to construct the
water and sewer improvements on behalf of Polygon, with reimbursement for the
work by Polygon.
BUDGET IMPACT: None, work to be paid for by Polygon Northwest,
ATTACHMENTS:
1. Construction and Reimbursement Agreement (PDF)
01/28/19 Public Works Committee RECOMMENDED TO
COUNCIL
Packet Pg. 287
W.