3862 CR Tractor Reinstate StratfordRESOLUTION NO. 3862
A RESOLUTION OF THE CITY OF MOSES LAKE
AUTHORIZING THE AND DIRECTING THE CITY
MANAGER TO EXECUTE AN AGREEMENT AMENDING
AND REINSTATING THE STRATFORD ROAD PROJECT –
2021 CONTRACT WITH C&R TRACTOR AND
LANDSCAPING, INC.
RECITALS:
1. The City of Moses Lake City Council adopts and incorporates herein the recitals set forth in
the attached “Reinstatement and Amendment to City of Moses Lake Stratford Road Project –
2020 Contract with C&R Tractor and Landscaping, Inc.”
2. It is in the best interest of the City of Moses Lake to execute the attached agreement.
NOW THEREFORE, BE IT RESOLVED by the City Council of the City of Moses Lake:
Section 1. The “Recitals” provisions set forth above are hereby incorporated in this Resolution as
findings in support of the actions authorized in this Resolution.
Section 2. The City Manager of the City of Moses Lake is hereby authorized and directed to
execute and administer the attached and incorporated "Reinstatement and Amendment to City of
Moses Lake Stratford Road Project – 2020 Contract with C&R Tractor and Landscaping, Inc.”
Section 3. The provisions of this Resolution shall become effective upon adoption and shall
continue until further formal action of the City Council.
ADOPTED by the City Council of the City of Moses Lake, Washington, this 14th day of
September, 2021.
____________________________________
David Curnel, Mayor
ATTEST:
______________________________________
Debbie Burke, City Clerk
Document Ref: TZFRW-ELRDS-RMFYC-GGUV9 Page 1 of 1
Signature Certificate
Document Ref.: TZFRW-ELRDS-RMFYC-GGUV9
Document signed by:
Mayor David Curnel
Verified E-mail:
dcurnel@cityofml.com
IP: 63.142.221.35 Date: 16 Sep 2021 19:36:27 UTC
Debbie Burke
Verified E-mail:dburke@cityofml.com
IP: 63.135.54.162 Date: 16 Sep 2021 20:28:33 UTC
Document completed by all parties on:
16 Sep 2021 20:28:33 UTC
Page 1 of 1
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REINSTATEMENT OF AND AMENDMENT
TO CITY OF MOSES LAKE STRATFORD ROAD PROJECT – 2020 CONTRACT
WITH C&R TRACTOR &LANDSCAPING, INC.
The parties to the above-referenced agreement dated May 26, 2020, (“Contract”) and
incorporated bonds, the City of Moses Lake, Washington, a non-charter code city (“City”), C&R
Tractor & Landscaping, Inc., a Washington corporation (“Contractor”), and Old Republic Surety
Company, a Wisconsin corporation (“Surety”)(collectively “Parties”), hereby agree to reinstate
(“Reinstatement”) the Contract subject to the terms and conditions set forth herein, effective
September 14, 2021.
Recitals:
1. City and Contractor executed the Contract on May 26, 2020, for which Surety provided the
performance and payment bonds for the full Contract amount.
2. The Contract was a 100-day project which called for a completion date of November 24, 2020.
3. At the initial pre-construction conference on June 10, 2020, Contractor requested a 3 week
delay of the Contract start date to July 6, 2020, which the City granted.
4. City issued a notice of default on August 31, 2020, following Contractor’s failure to timely
prosecute the work and meet the progress schedule.
5. Contractor responded to the notice of default with an updated, aggressive progress schedule
which would meet the November 24, 2020, completion date.
6. The project was not completed by November 24, 2020, and Contractor requested another
extension of the Contract time. The City agreed to toll the remaining contract days and extend the
completion date to early 2021 when the asphalt plants reopened and the remaining paving work
could be performed.
7. Contractor agreed to commence work on January 13, 2021, to complete the remaining work by
April 19, 2021.
8. City issued a second notice of default on April 21, 2021, following Contractor’s failure to meet
the updated and extended schedule and notification from four subcontractors that they had not
been paid. Contractor responded via letter dated April 27, 2021, indicating that it had been
impacted by the COVID-19 pandemic and was working on obtaining refinancing in order to obtain
a loan with which to pay its subcontractors.
9. The Parties met via a phone conference between City, Contractor, and Surety on May 7, 2021,
during which the Parties agreed that Contractor lacked the financial ability and resources to timely
cure the defaults and that the City should proceed to terminate the Contract in order to pursue
engagement of a completion contractor. City properly terminated the Contract effective May 7,
2021, in accordance with the contract terms.
10. Pursuant to the Parties’ agreement, City attempted to negotiate a completion contract with one
of the sub-contractors, Central Washington Asphalt (“CWA”), without success.
11. On May 10, 2021, CWA submitted a proposed bid for the completion work in the amount of
$535,000.00; City staff met with CWA and were successful in negotiating a lower bid in the
amount of $505,350.50 on May 14, 2021.
12. The Parties reviewed the CWA bid and conferred; Contractor objected to the bid via letter
dated June 4, 2021.
13. City prepared a revised scope of work for the completion contract on June 15, 2021, and
circulated the bid documents for the completion contract to all Parties and received agreement as
to scope of work prior to public notice soliciting bids for the remaining work; the City engineer’s
estimate was $345,303.00.
14. Bid opening was July 23, 2021, and the City received only one bid on the completion contract,
from Central Washington Asphalt (CWA) in the amount of $680,000.00.
15. After further conversations between the Parties, and after City contacted all seven contractors
who had requested contract documents to find out why only they failed to submit bids, the Parties
agreed to modifications of the completion contract schedule in order to attract a larger bidding
response, and City expanded its bid solicitation and advertising in order to maximize the bid
response. The City engineer’s estimate was revised to $422,600.00 based upon the revisions.
16. City agreed to pay contract balances to Surety following receipt of the Contractor’s Letter of
Direction dated August 4, 2021.
17. Despite the expanded solicitation and extended schedule, City received only one bid at the
second bid opening on August 17, 2021, again from CWA and for the same amount as CWA’s
May 10, 2021, bid.
18. City staff contacted CWA and were unsuccessful in attempts to negotiate a lower bid.
19. Surety, City, and Contractor met via phone conference on August 25, 2021, to discuss options
wherein it was agreed that it was necessary to complete the project in 2021 in order to minimize
safety issues and risk to City.
20. Surety, City, and Contractor met again via phone conference on August 27, 2021, and Surety
and Contractor proposed the option of reinstating Contractor under the terminated contract to
complete the agreed upon remaining work in order to reduce the costs.
21. Surety and Contractor represented that the priority was completion of the work in 2021 and
that they would do everything they could to avoid another failure.
22. Surety’s representative (David Garcia of Sage Associates) conducted an extensive site visit
and project walk-through with City staff on September 7, 2021, to confirm the scope of work and
project details for the remaining work.
NOW, THEREFORE, FOR AND IN CONSIDERATION of the Recitals, the covenants,
terms, and conditions hereinafter contained, the Parties agree as follows:
1. Purpose. The purpose of reinstating the Contract is to enable Contractor to complete the
remaining Contract work within this construction season and prior to December 1, 2021, which
will enable the Parties to reduce and mitigate their respective damages.
2. Representations and Covenants of Contractor and Surety. For and in consideration of
permitting the Contract to be reinstated, the Contractor and Surety make the following
representations and covenants to the City:
a. Surety agrees, represents, and covenants that the original performance and payment bonds
under the Contract shall remain fully in force and effect and in accordance with their
original terms, and this reinstatement of the Contract is without prejudice to or waiver by
City.
b. Surety and Contractor agree that the bid process by the City following the May 7, 2021,
termination of the contract was reasonable and that the City is not responsible for and
should not be prejudiced by any delay in getting the Project completed following the May
7, 2021, termination.
3. Reinstatement of Contract. Subject to the following terms and conditions the Contract is hereby
reinstated, with the original payment and performance bonds continuing in full force and effect
thereunder:
a. Contractor shall meet all obligations set forth in the Contract.
b. Surety shall provide assistance to Contractor in the form of project oversight and
management from Sage Associates, Inc., which includes physical presence at the work site
during the reinstatement contract period and through project completion.
c. Surety and Contractor shall make best efforts to resolve all outstanding payment bond
claims prior to recommencing work.
d. Work shall commence on or before September 20, 2021, and shall proceed in accordance
with the attached work schedule proposed by Surety’s representative and Contractor and
accepted by City.
e. No change orders shall be permitted.
4. Additional Remedy. In the event Contractor fails to maintain satisfactory progress of the work
upon reinstatement as determined by City, City reserves the right to award the completion
contract to CWA up through and including October 1, 2021.
5. Reservation of Remedies. Surety and Contractor agree that City has not waived any claims it
may have against the performance bond and any costs and damages caused by Contractor’s
breach and default under the Contract, and the parties agree to defer any claims to a later date
in order to prioritize completion of the remaining Contract work during this construction
season. The City reserves its right to assert any claim or cause of action it may have against
the Contractor or Surety arising out of the Contractor’s breach of contract, including but not
limited to liquidated damages. The Surety and Contractor reserve their rights to assert any
defenses.
6. This Reinstatement shall extend to and be binding upon the Parties and their respective
successors, assigns, and privies.
7. This Reinstatement shall be interpreted and construed in all respects in accordance with, and
governed by, the laws of the State of Washington. Any litigation arising from this
Reinstatement shall be had in a court of proper jurisdiction in the State of Washington, which
shall have exclusive jurisdiction over any matters or issues arising therefrom. Venue of any
action shall lie in Grant County, Washington.
8. The undersigned hereby confirm that this Reinstatement constitutes the entire terms of their
agreement and further acknowledge that they have read and understand this Reinstatement
agreement and have had an opportunity to consult with counsel.
9. This Reinstatement may be executed in counterparts, with each counterpart being deemed one
and the same original document and shall become effective when all Parties hereto have
executed this Reinstatement and have delivered an executed signature page to each of the other
Parties. Each facsimile or electronic signature shall be treated in all respects as having the
same effect as an original signature.
SIGNATURES ON FOLLOWING PAGE
IN WITNESS WHEREOF, the Parties hereto have executed this Reinstatement on the date and
year first-above written.
CITY OF MOSES LAKE
______________________
Allison Williams, City Manager
ATTEST:
_________________________
Debbie Burke, City Clerk
APPROVED AS TO FORM:
___________________________
Katherine Kenison, City Attorney
SURETY:
Old Republic Surety Company
__________________________
By: _______________________
Title: _____________________
Name: ____________________
APPROVED AS TO FORM:
___________________________
Loren Podwill, Surety Counsel
CONTRACTOR:
C&R Tractor and Landscaping, Inc.
By: _________________________
Casey Heaton, Owner/President
APPROVED AS TO FORM:
___________________________
Shawn Ryan, Contractor Counsel