HomeMy WebLinkAbout2021-07-12-D01 LWC North Trunk Sewer Phase 1 and Water Main Extension_Authorize Notice to CureAGENDA ITEM:
CITY OF WAUKEE, IOWA
CITY COUNCIL MEETING COMMUNICATION
MEETING DATE: July 6, 2021
AGENDA ITEM:Consideration of approval of a resolution approving and adopting
recommendation of Engineer Relating to Notice of Default to Priority
Excavating, LLC of Default Under Certain Contract for Work on the Project
Known as The Little Walnut Creek North Trunk Sewer – Phase 1 and Water
Main Extensions and for other action as provided under the Contract and Iowa
Statewide Urban Design and Specifications (SUDAS)
FORMAT:Resolution
SYNOPSIS INCLUDING PRO & CON: The work performed to date for the Little Walnut Creek
North Trunk Sewer - Phase 1 and Water Main Extensions project by Priority Excavating, LLC has not
been satisfactorily completed. The project completion date of June 30, 2021 has been exceeded and
the rate of progress on completing the project has not been progressed or been performed as required
under the Contract Documents.
Despite being placed on Notice of its failure to prosecute the work properly and to perform under the
provisions of the Contract, for much of the contract time the Contractor did not have employees on site
performing the work and has only recently restarted construction. They have repeatedly missed their
own schedule deadlines, have failed to prosecute the work properly, have now missed the schedule
project completion date, and have failed to perform under the provisions of the Contract. It is the
Engineer’s determination that, pursuant to the Contract Documents and SUDAS Section 1080.1.13,
Contractor is in default of the Contract.
Following said relinquishment, the City “shall have full power and authority, without violating the
contract or bond, to take over the completion of the work, to appropriate or use any or all materials and
equipment at the site that may be suitable and acceptable, to enter into agreements with others for the
completion of said contract according to the terms and provisions thereof, or to use such other methods
as in the [City’s] opinion may be required for the completion of said contract in an acceptable
manner.” SUDAS § 1080.1.13.B. Such action is approved by the Engineer.
FISCAL IMPACT INCLUDING COST/BENEFIT ANALYSIS:
COMMISSION/BOARD/COMMITTEE COMMENT:
STAFF REVIEW AND COMMENT:
RECOMMENDATION: Approve the Resolution.
ATTACHMENTS: I. Resolution
II. Engineer’s Letter of Recommendation
PREPARED BY: Rudy Koester
REVIEWED BY: Rudy Koester RK
D1
THE CITY OF WAUKEE, IOWA
RESOLUTION 2021-
RESOLUTION APPROVING AND ADOPTING RECOMMENDATION OF ENGINEER
RELATING TO NOTICE OF DEFAULT TO PRIORITY EXCAVATING, LLC OF
DEFAULT UNDER THAT CERTAIN CONTRACT FOR WORK ON THE PROJECT
KNOWN AS THE LITTLE WALNUT CREEK NORTH TRUNK SEWER - PHASE 1
AND WATER MAIN EXTENSIONS AND FOR OTHER ACTION AS PROVIDED
UNDER THE CONTRACT AND SUDAS
IN THE NAME AND BY THE AUTHORITY OF THE CITY OF WAUKEE, IOWA
WHEREAS, the City of Waukee, Dallas County, State of Iowa, is a duly organized
Municipal Organization; AND,
WHEREAS, the City Council of the City of Waukee, Iowa entered into a contract with
Priority Excavating, LLC for certain work to be performed on the Project known as the Little
Walnut Creek North Trunk Sewer - Phase 1 and Water Main Extensions; AND
WHEREAS, the Project Engineer, Veenstra & Kimm, Inc. has informed the City
Council of the City of Waukee, Iowa that Priority Excavating, LLC is in default of said contract
for failure to perform the work properly, failed to perform under the provisions of the Contract,
failure or refusal to comply with orders of the Engineer within a reasonable time, failure to
provide sufficient workers, equipment, or materials to ensure the proper and timely completion
of the work, and failure to carry on the work in an acceptable manner; AND
WHEREAS, the Project Engineer, Veenstra & Kimm, Inc. has recommended, certified
and approved certain action related to said defaults by Priority Excavating, LLC as follows:
That the City of Waukee give notice, or direct the Engineer to give notice, to the
Contractor, for the project, Priority Excavating, LLC, of default under the Contract.
Should the Contractor fail to cure such defaults in the allotted time, the City should direct
the Contractor to relinquish possession and control of the remaining outstanding,
uncompleted and deficient work on the project as a result of Priority Excavating, LLC’s
defaults under the Contract including, but not limited to SUDAS Section 1080.1.13:
1.Failure by the Contractor to begin work at the time specified;
2.Failure by the Contractor to complete the work within the contract period or any
extension thereof;
3.Failure or refusal by the Contractor to comply with an order of the Engineer
within a reasonable time;
4.Contractor's persistent disregard of laws, ordinances, or instructions of the
Engineer;
5.Contractor's repeated failure to provide sufficient workers, equipment, or
materials to ensure the proper and timely completion of the work;
6.Failure or refusal by the Contractor to replace, perform anew, or correct any
defective or unacceptable work;
7.Contractor's discontinuance of the work without authorization by the Jurisdiction;
8.Failure by the Contractor to carry on the work in an acceptable manner.
as provided in SUDAS 1080.1.13 as well as Section 25.1 of the General Conditions of the
Project’s Specifications manual. Following said relinquishment, the City “shall have full
power and authority, without violating the contract or bond, to take over the completion
of the work, to appropriate or use any or all materials and equipment at the site that may
be suitable and acceptable, to enter into agreements with others for the completion of said
contract according to the terms and provisions thereof, or to use such other methods as in
the [City’s] opinion may be required for the completion of said contract in an acceptable
manner.” SUDAS § 1080.1.13.B. Such action is approved by the Engineer.
WHEREAS, the City Council for the City of Waukee has considered and discussed the
issue and believes it is in the best interest of the City of Waukee to accept and approve the
recommendation of the Project Engineer, Veenstra & Kimm, Inc.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF WAUKEE, IOWA:
1)The City shall, through either legal counsel, the Project Engineer, provide Notice
of Default to Priority Excavating, LLC, enumerating the defaults under the contract and
providing for seven days to cure such defaults.
2)If Priority Excavating, LLC fails to cure the defaults in the allotted time provided
in the Notice, the City shall direct Priority Excavating, LLC to relinquish control and possession
of the remaining outstanding, uncompleted and deficient work to the City of Waukee and the
City of Waukee shall take over such work, including appropriating or using any or all materials
and equipment at the site that may be suitable and acceptable, bidding/letting contracts, entering
into contracts/agreements with others for the completion of said work/contract, and/or using such
other methods as in the City’s opinion may be required for completion of said contract in an
acceptable manner.
3)The City Council for the City of Waukee directs legal council and/or the Project
Engineer to take all further and other action as may be deemed reasonable and necessary for
enforcement of Priority Excavating, LLC, and the Surety’s, liability under the Contract and/or
Bond that the City may suffer by reason of Priority Excavating, LLC’s failure to faithfully
perform the Contract.
4)This Resolution and direction is made with a full reservation of all rights and
defenses the City has or may have under law, in equity, under the terms and provisions of the
contracts and bonds and/or SUDAS.
Passed by the City Council of the City of Waukee, Iowa, and approved this the 12th day of July,
2021.
____________________________
Courtney Clarke, Mayor
Attest:
___________________________________
Rebecca D. Schuett, City Clerk
RESULTS OF VOTE: AYE NAY ABSENT ABSTAIN
Anna Bergman Pierce
R. Charles Bottenberg
Chris Crone
Larry R. Lyon
Ben Sinclair
West Des Moines, IA • Coralville, IA • Dubuque, IA • Mason City, IA • Sioux City, IA
Cedar Rapids, IA • Rock Island, Il • Springfield, IL • Liberty, MO • Rochester, MN
VEENSTRA & KIMM, INC.
3000 Westown Parkway • West Des Moines, Iowa 50266-1320
515-225-8000 • 515-225-7848(FAX) • 800-241-8000 (WATS)
July 8, 2021
Rudy Koester
Public Works Director
City of Waukee
805 University Avenue
Waukee, Iowa 50263
WAUKEE, IOWA
LITTLE WALNUT CREEK NORTH TRUNK SEWER - PHASE 1 AND WATER MAIN
EXTENSIONS
RECOMMENDATION FOR NOTICE TO BE GIVEN TO CONTRACTOR OF DEFAULT
AND, IF CONTRACTOR FAILS TO CURE SAID DEFAULT, TO REQUIRE CONTRACTOR
TO RELINQUISH CONTROL AND POSSESSION OF WORK, CITY TAKE OVER
COMPLETION OF WORK AND FOR OTHER ACTION AS PROVIDED IN THE
CONTRACT AND SUDAS
The work performed to date for the Little Walnut Creek North Trunk Sewer - Phase 1 and Water
Main Extensions project by Priority Excavating, LLC has not been satisfactorily completed. The
project completion date of June 30, 2021 has been exceeded and the rate of progress on completing
the project has not been progressed or been performed as required under the Contract Documents.
Despite being placed on Notice of its failure to prosecute the work properly and to perform under
the provisions of the Contract, for much of the contract time the Contractor did not have employees
on site performing the work and has only recently restarted construction. They have repeatedly
missed their own schedule deadlines, have failed to prosecute the work properly, have now missed
the schedule project completion date, and have failed to perform under the provisions of the
Contract. It is the Engineer’s determination that, pursuant to the Contract Documents and SUDAS
Section 1080.1.13, Contractor is in default of the Contract.
Accordingly, pursuant to the Contract Documents, including SUDAS which is incorporated into
the Contract Documents, the undersigned, on behalf of the Engineer, recommends and certifies to
the City the following action:
That the City of Waukee give notice, or direct the Engineer to give notice, to the Contractor,
for the project, Priority Excavating, LLC, of default under the Contract. Should the Contractor
fail to cure such defaults in the allotted time, the City should direct the Contractor to relinquish
possession and control of the remaining outstanding, uncompleted and deficient work on the
project as a result of Priority Excavating, LLC’s defaults under the Contract including, but
not limited to SUDAS Section 1080.1.13:
Rudy Koester
July 8, 2021
Page 2
1. Failure by the Contractor to begin work at the time specified;
2. Failure by the Contractor to complete the work within the contract period or any
extension thereof;
3. Failure or refusal by the Contractor to comply with an order of the Engineer within a
reasonable time;
4. Contractor's persistent disregard of laws, ordinances, or instructions of the Engineer;
5. Contractor's repeated failure to provide sufficient workers, equipment, or materials to
ensure the proper and timely completion of the work;
7. Failure or refusal by the Contractor to replace, perform anew, or correct any defective
or unacceptable work;
8. Contractor's discontinuance of the work without authorization by the Jurisdiction;
10. Failure by the Contractor to carry on the work in an acceptable manner.
as provided in SUDAS 1080.1.13 as well as Section 25.1 of the General Conditions of the
Project’s Specifications manual. Following said relinquishment, the City “shall have full
power and authority, without violating the contract or bond, to take over the completion of
the work, to appropriate or use any or all materials and equipment at the site that may be
suitable and acceptable, to enter into agreements with others for the completion of said
contract according to the terms and provisions thereof, or to use such other methods as in
the [City’s] opinion may be required for the completion of said contract in an acceptable
manner.” SUDAS § 1080.1.13.B. Such action is approved by the Engineer.
Pursuant to the Contract Documents and SUDAS, the Contractor and Surety shall remain liable
for all costs and damages which the City may suffer by reason of the Contractor’s failure to
faithfully perform the Contract including, but not limited to, all outlay and expenses incurred by
the City for completing and correcting the work, liquidated damages, and the Cities attorney’s fees
as set forth in SUDAS § 1080.1.13 and the Contract Documents.
Nothing herein shall be deemed to relieve the Contractor or Surety from liability and requirements
of the Contract Documents, the Bond, SUDAS Part 1080 1.13 and/or other relevant and governing
provisions and laws.
Rudy Koester
July 8, 2021
Page 3
If you have any questions or comments, please contact us at 225-8000.
VEENSTRA & KIMM, INC.
Andy Willcuts
ARW
275331