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HomeMy WebLinkAboutPayment and Performance BondLETTER OF TRANSMITTAL PAPE & SONS CONSTRUCTION, INC. 9401 BUJACICH ROAD, STE 1A GIG HARBOR, WA 98332 253-851-6040 fax 253-851-3290 TO: City of Bremerton 345 6th Street, Suite 100 Bremerton, WA 98337 WE ARE SENDING TO YOU THE FOLLOWING ATTN: Noreen Bolo DATE: 3/26/2021 JOB NO. #822 RE: 6th Street Sewer Replacement Project COPIES DATE NO. DESCRIPTION 1 3/26/2021 Labor and Material Payment Bond 1 3/26/2021 Performance Bond COMMENTS: COPY TO SIGNED: McUSS2 M'bSHh0 Swiss Re Corporate orate Solutions North American Specialty Insurance Company Washington International Insurance Company Westport Insurance Corporation 1200 Main Street, Suite 800 Kansas City, MO 64105 LABOR AND MATERIAL PAYMENT BOND KNOW ALL BY THESE PRESENTS, that we, Pape & Sons Construction, Inc. North American Specialty Insurance Company as Surety, are held of Bremerton Two Hundred Seventy One Thousand Nine Hundred Ninety Four & 10/100 Bond# 2312-216 as Principal, and and firmly bound unto as Obligee, in the penal sum of Dollars ($ 271,994.10 for the payment whereof said Principal and Surety bind themselves, jointly and severally, as provided herein. WHEREAS, Principal has entered into a contract with 6th Street Sewer Replacement Obligee dated March 24,2021 incorporated herein by reference for the limited purpose of defining the scope of the Construction Work. for ("Contract"), which is NOW, THEREFORE, the condition of this obligation is such that if Principal promptly makes payment of all sums due to Claimants for labor, materials or rental equipment actually used, consumed or incorporated in the performance of the Construction Work, then Surety and Principal shall have no obligation under this Bond ("Bond"). IT IS FURTHER PROVIDED, that: 1. The obligation of Surety under this Bond shall arise only when all the following conditions have been met: (A) Claimant has, within ninety (90) days of Claimant's last furnishing of labor, materials, or rental equipment in the performance of the Construction Work, provided written notice of non-payment to Principal, Surety (at the address identified on this Bond) and Obligee stating with substantial accuracy the amount claimed and the name of the party to whom the labor, materials, or rental equipment was furnished; and (B) Claimant has furnished a Proof of Claim to Surety along with the following: (i) A written statement including the name of Claimant, the amount of the claim, the name of the party to whom the labor, materials, or rental equipment was furnished, a brief description of the labor, materials, or rental equipment furnished, and the date on which Claimant last furnished such labor, materials, or rental equipment for use in the performance of the Construction Work; and (ii) A copy of the agreement, contract or purchase order pursuant to which Claimant furnished labor, materials, or rental equipment for use in the performance of the Construction Work; and (iii) A statement of account showing the total amount earned by Claimant, the amount of previous payments received by Claimant, and the total amount due and unpaid to Claimant; and (iv) Copies of all unpaid invoices for which Claimant is making the claim. 2. No suit or action shall be commenced by Claimant under this Bond after the expiration of one (1) year from the date on which Claimant last furnished labor, materials, or rental equipment for use in the performance of the Construction Work. If the limitation period set forth in this Bond is void or prohibited by law, then the minimum limitation period available to sureties as a defense in the jurisdiction of the suit or action shall apply and shall be deemed to have accrued and commenced to run on the date on which Claimant last furnished the labor, material, or rental equipment for which Claimant is making the claim. For purposes of determining the limitation period, performance of the Construction Work shall not include punch list, warranty, or maintenance work. 3. Notwithstanding anything in this Bond or the Contract to the contrary, Surety shall have no liability to Claimant for legal fees or costs or any form of consequential, indirect, punitive, or exemplary damages. No prejudgment or pre -award interest may be recovered under this Bond. Post judgment interest shall be calculated from the date of the entry of the judgment, at a rate equal to the weekly average 1-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System, for the calendar week preceding the date of the judgment. Rev. 04/2020 Page 1 of 2 4. The aggregate liability of Surety under this Bond shall not exceed the penal sum of this Bond; and the penal sum of this Bond shall be reduced by and to the extent of all payments made by Surety under this Bond. 5. Any suit or action under this Bond shall be instituted in a State or Federal Court of competent jurisdiction in the State in which the Construction Work is situated. No right of action shall accrue on this Bond to or for the use of any individual or entity other than a Claimant. The validity, interpretation, construction and performance of this Bond shall be governed by the laws of the State where the Construction Work is performed, without giving effect to the principles of conflict of laws or any provision contained in the Contract. This Bond is not transferable. 6. Notice or demand given to Surety pursuant to this Bond shall be in writing and delivered to the following mailing address or email address: Swiss Re Corporate Solutions — Surety Claims 1200 Main Street, Suite 800 Kansas City, MO 64105 SuretyClaimsNA—CorporateSolutions@swissre.com Definitions (A) The words "Claimant" and "Claimants" mean one or more individuals or entities having a direct contract with Principal or with a subcontractor of Principal for labor, material, or rental equipment actually used, consumed or incorporated in the performance of the Construction Work. (B) The phrase "Construction Work" means all labor, materials, and rental equipment necessary to complete Principal's scope of work under the Contract. Signed and sealed this 24th day of March A.D., 20 21 _ IN THE PRESENCE OF: Pape & Sons Construction, Inc. Principal me: ��r►cs 'gape. Title: �rtSi�Gw�' North American Specialty Insurance Company Surety by ` Jlf ie A. Craker Attorney -in -Fact Rev. 04/2020 Page 2 of 2 Swiss Re Corporate Solution's PERFORMANCE BOND North American Specialty Insurance Company Washington International Insurance Company Westport Insurance Corporation 1200 Main Street, Suite 800 Kansas City, MO 64105 Bond# 2312216 KNOW ALL BY THESE PRESENTS, that we, Pape & Sons Construction, Inc. , as Principal, and North American Specialty Insurance Company , as Surety, are held and firmly bound unto City of Bremerton , as Obligee, in the penal sum of Two Hundred Seventy One Thousand Nine Hundred Ninety Four & 10/100 Dollars ($ 271,994.10 _) for the payment whereof said Principal and Surety bind themselves, jointly and severally, as provided herein. WHEREAS, Principal has entered into a contract with Obligee dated March 24,2021 6th Street Sewer Replacement for ("Contract"), which is incorporated herein by reference for the limited purpose of defining the scope of the Construction Work. NOW, THEREFORE, the condition of this obligation is such that if Principal promptly and faithfully performs the Construction Work, then this obligation shall be null and void; otherwise to remain in full force and effect. IT IS FURTHER PROVIDED, that: 1. The obligation of Surety under this bond ("Bond") shall arise only when all the following conditions have been met: (A) The Obligee has fulfilled its obligations under the Contract; and (B) Principal is, and Obligee has declared Principal to be, in material default under the Contract for failing to perform the Construction Work ("Principal's Default"); and (C) Obligee has terminated the Contract and notified the Surety in writing of Principal's Default and such termination; and (D) The Obligee has agreed to pay the Contract Balance, in accordance with the terms of the Contract, to the Surety or to a contractor selected to perform the Contract. 2. When all the conditions in Section 1 are met, Surety shall have a reasonable period of time to investigate and elect at its sole discretion one of the following remedies: (A) Notify Obligee that Surety elects to complete the performance of the Construction Work through contractor(s) retained by Surety and then commence such performance with reasonable promptness. In this event, that portion of the Contract Balance as may be required to complete the Construction Work or remedy Principal's Default and to reimburse Surety for its expenditures shall be paid to Surety at the times and in the manner as said sums would have been payable under the Contract to Principal had there been no Principal's Default; or (B) Notify Obligee that it elects to arrange for a contract between Obligee and a replacement contractor acceptable to Obligee, such acceptance not to be unreasonably withheld, guaranteed by both contract payment and performance bonds provided by the replacement contractor in the amount of the replacement contract. In this event, Surety shall pay Obligee that portion of the cost of the replacement contractor that is in excess of the Contract Balance. Such payment(s) may be made to Obligee in a lump sum (in the event of a lump sum contract) or periodically as incurred by Obligee; or (C) Request Obligee to complete the Construction Work. In this event, Surety shall pay Obligee that portion of the reasonable cost to complete the Construction Work incurred by Obligee that is in excess of the Contract Balance; or P•.., nAl nnn P.„o 1 �f Z (D) Arrange to give assistance, financial or otherwise, to the Principal to assist the Principal with completing the Construction Work. This remedy shall be subject to Obligee's agreement, which shall not be unreasonably withheld. The Obligee shall pay the Contract Balance as directed by Surety. In the event Surety provides financial assistance, Surety, in its sole discretion, may upon written notice to Obligee cease providing such financial assistance at any time, in which event Surety shall immediately make a further election under this Section 2; or (E) Notify the Obligee that Surety denies liability. Surety shall cite its reasons for the denial of liability; or (F) After investigation, determine the amount for which Surety may be liable to the Obligee and, as soon as reasonably possible after the amount is determined, make payment to the Obligee. After Obligee has provided Surety with written notice of Principal's Default, and before the commencement of work under Section 2, subparagraphs (A) or (B), Obligee may, pursuant to its Contract rights, mitigate the damages caused by the Principal's Default. If Obligee performs obligations under the Contract during this period, Obligee shall be entitled to deduct the Mitigation Costs from the Contract Balance. If the Contract Balance is exhausted, and Surety elects to proceed under Section 2, subparagraphs (A), (B), (C) or (D), Surety shall reimburse Obligee for the difference between the Contract Balance and the Mitigation Costs incurred and paid by Obligee. 4. If Surety proceeds under Section 2, subparagraphs (A), (B), (C), (D) or (F), Surety may also advise in the notice of its remedy election to Obligee that the Obligee's claim is disputed as to liability and/or amount and Surety is proceeding under and asserting a reservation of all rights, remedies, claims, and defenses. In the event Surety prevails, in whole or in part, with respect to the dispute regarding liability and/or amount of Obligee's claim and Surety paid monies in excess of the funds paid by Obligee to Surety, then Surety shall be entitled to recover the excess from Obligee. 5. Surety's aggregate liability under this Bond is limited to the penal sum of this Bond, regardless of whether the liability arises from the actions or inactions of Principal or Surety. The penal sum of this Bond shall be reduced by and to the extent of any and all monies paid by Surety under this Bond in excess of funds paid by Obligee to Surety. If Surety paid monies in excess of the penal sum of this Bond, then Surety shall be entitled to recover the excess monies from Obligee. The Surety waives notice of any change to the Contract. 6. Definitions: (A) The phrase "Contract Balance," means the total amount payable by Obligee to Principal under the Contract and any amendments thereto, less the amounts properly paid by Obligee under the Contract. (B) The phrase "Mitigation Costs" means the cost actually incurred by Obligee in proper performance of the Construction Work. Such costs shall be at hours and rates not higher than those customarily incurred at the place of the Construction Work unless Surety provides its prior written consent. (C) The phrase "Construction Work" means all labor and materials necessary to complete Principal's scope of work under the Contract Any suit or action by Obligee under this Bond must be instituted within one (1) year from the earliest of the following dates: (A) the date of substantial completion of the Construction Work; (B) the date Principal ceased performing the Construction Work; or (C) the date of Principal's Default. If the limitation period set forth in this Bond is void or prohibited by law, then the minimum limitation period available to sureties as a defense in the jurisdiction of the suit or action shall apply and shall be deemed to have accrued and commenced to run on the earliest of the dates referenced in this Section 7 (A), (B) and (C). It shall be understood that in no event shall punch list, warranty, or maintenance work constitute Construction Work for the purpose of determining the limitation period for filing a suit or action under this Bond. g No prejudgment or pre -award interest may be recovered under this Bond. Post judgment interest shall be calculated from the date of the entry of the judgment, at a rate equal to the weekly average 1-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System, for the calendar week preceding the date of the judgment. The Obligee is the sole beneficiary under this Bond. No right of action shall accrue on this Bond to or for the use of any person other than the Obligee. This Bond is not transferable without the express written consent of Surety, and no successor or assignee of Obligee shall have any rights under this Bond. Any suit or action under this Bond shall be instituted in a State or Federal court of competent jurisdiction in the State in which the Construction Work is situated. The validity, interpretation, construction and performance of this Bond shall be governed by the laws of the State where the Construction Work is performed, without giving effect to the principles of conflict of laws or any provision contained in the Contract. 10. Notwithstanding anything in this Bond or the Contract to the contrary, Surety shall have no liability to Obligee for: legal fees or costs; any form of consequential, indirect, punitive, or exemplary damages; or any liability of Principal for tortious acts, whether or not said liability is direct or imposed by the Subcontract or otherwise. Nor shall this Bond serve as or be a substitute for or supplemental to any insurance coverage required under the Subcontract. 11. Notice or demand given to Surety pursuant to this Bond shall be in writing and delivered to the following mailing address or email address: Swiss Re Corporate Solutions — Surety Claims 1200 Main Street, Suite 800 Kansas City, MO 64105 SuretyClaimsNA_CorporateSolutions@swissre.com Signed this 24th day of March , 20 21 Pape & Sons Construction, Inc. Principal � t 5 a.pG Title: TV-CSU&k - North American Specialty Insurance Company Surety by ad& a Jd e Attorney -in - Fact R nanm*?n Page 3 of 3 SWISS RE CORPORATE SOLUTIONS NORTH AMERICAN SPECIALTY INSURANCE COMPANY WASHINGTON INTERNATIONAL INSURANCE COMPANY GENERAL POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, THAT North American Specialty Insurance Company, a corporation duly organized and existing under laws of the State of New Hampshire, and having its principal office in the City of Overland Park, Kansas, and Washington International Insurance Company, a corporation organized and existing under the laws of the State of New Hampshire and having its principal office in the City of Overland Park, Kansas, each does hereby make, constitute and appoint: THOMAS P. HENTSCHELL, BRADLEY A. ROBERTS, JULIE A. CRAKER, KAREN J. SMITH, and JOANNE REINKENSMEYER JOINTLY OR SEVERALLY Its true and lawful Attomey(s)-in-Fact, to make, execute, seat and deliver, for and on its behalf and as its act and deed, bonds or other writings obligatory in the nature of a bond on behalf of each of said Companies, as surety, on contracts of suretyship as are or may be required or pennitted by law, regulation, contract or otherwise, provided that no bond or undertaking or contract or suretyship executed under this authority shall exceed the amount of: FIFTY MILLION ($50,000,000.00) DOLLARS This Power of Attorney is granted and is signed by facsimile under and by the authority of the following Resolutions adopted by the Boards of Directors of both North American Specialty Insurance Company and Washington International Insurance Company at meetings duly called and held on the 91h of May, 2012: "RESOLVED, that any two of the Presidents, any Managing Director, any Senior Vice President, any Vice President, any Assistant Vice President, the Secretary or any Assistant Secretary be, and each or any of them hereby is authorized to execute a Power of Attorney qualifying the attorney named in the given Power of Attorney to execute on behalf of the Company bonds, undertakings and all contracts of surety, and that each or any of them hereby is authorized to attest to the execution of any such Power of Attorney and to attach therein the seal of the Company; and it is FURTHER RESOLVED, that the signature of such officers and the seal of the Company may be affixed to any such Power of Attorney or to any certificate relating thereto by facsimile, and any such Power of Attorney or certificate bearing such facsimile signatures or facsimile seal shall be binding upon the Company when so affixed and in the future with regard to any bond, undertaking or contract of surety to which it is attached." �n�4nurr+lrrpp .4a� �..urr1 Iif, Q AA6 y;' (1PDljf- yy4 _ ,�,µ,,,�,,,�a,,, pK4aNg2,1�,� ,.... .. s� :�By SEAL I' _ m 4 a s Steven P. Anderson, Senior Vice President of Washington International Insurance Company Z? SEAL F 1973 p,: ,-, Q"p - & Senior Vice President of North American Specialty Insurance Company O ;m_ ' V : :D kj z� &.......... 4111111tllllil4t44� 7y:;Ttt�rhalt fi By Michael A. Son r �'—L"iea Presideill 01"ArAKILMR110H neemanonx nsuronce Tompan}' utniu�uri� & Senior Vice President of North American Specialty Insurance Company IN WITNESS WHEREOF, North American Specialty Insurance Company and Washington International Insurance Company have caused their official seals to be hereunto affixed, and these presents to be signed by their authorized officers this 19 day of JANUARY , 2018 North American Specialty Insurance Company Washington International Insurance Company State of Illinois County of Cook SS: On this 19 day of JANUARY , 20 18 , before me, a Notary Public personally appeared Steven P. Anderson , Senior Vice President of Washington International Insurance Company and Senior Vice President of North American Specialty Insurance Company and Michael A. Ito , Senior Vice President of Washington International Insurance Company and Senior Vice President of North American Specialty Insurance Company, personally known to me, who being by me duly sworn, acknowledged that they signed the above Power of Attorney as officers of and acknowledged said instrument to be the voluntary act and deed of their respective companies. OFFICtAI. SEAL M.NENNY Nmary public • Smt, of Ulhrnis My Cnmmmiun rNpBcs s2f[14482t M. Kenny, Notary Public I,effrc)r Goldberg . the duly elected Assistant Secretary _ c)f North American Specialty Insurance Company and Washington International Insurance Company, do hereby certify that the above and foregoing is a true and correct copy of a Power of Attorney given by said North American Specialty Insurance Company and Washington International Insurance Company, which is still in full force and effect. IN WITNESS WHEREOF, I have set my hand and affixed the seals of the Companies this 24th day of�% March 20 21 Jeffrey Goldberg, Vice President & Assistant Secretary or Washington International Insurance Company & North American Specialty Insurance Company