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HomeMy WebLinkAboutNotice of Termination for Agreement # 8087_ARC_Demising_Walls_Construction CITY OF Nancy Backus, Mayor - WASHINGTON 25 West Main Street :,t Auburn WA 98001-4998 * wwv✓.auburnwa.gov * 253-931-3000 April 15, 2021 Kelly-Thomas, Inc. Fred Thomas 26318 Entwhistle Road East Buckley, WA 98321 206.786.7480 Fred@kellythomasinc.com RE: Notice of Termination for Agreement# 8087_ARC_Demising_Walls_Construction Contract Mr. Fred Thomas, The City is sending you this notice informing you that effective 4/15/2021 the City is terminating Agreement #8087 for convenience in conformity with paragraph 6 of our agreement (attached). Since no services have been performed in relation to this contract, the City has no obligation of payment under this Agreement. Thank you, Nancy B.. s, City of Au;�it , Mayor ,LC Attachment:Agreement # 8087 ARC Demising_Walls_Construction Contract CC: Kendra Comeau— City of Auburn, Attorney Candis Martinson— City of Auburn, Director of Human Resources & Risk Management Josh Arndt— City of Auburn, Real Property Manager AUBURN MORE TI IAN YOU IMAGINED DocuSign Envelope ID:07D2AC28-051 F-44D1-8812-4007C31087AF CITY OF AUBURN AGREEMENT FOR SERVICES Kelly-Thomas Inc. — Construction of ARC Demising Walls THIS AGREEMENT made and entered into on this 19th of March , 2021, by and between the CITY OF AUBURN ("City"), a municipal corporation of the State of Washington, and Kelly-Thomas, Inc. ("Contractor"), whose address is 26318 Entwhistle Road East, Buckley, Washington 98321. In consideration of the conditions and the mutual promises and covenants contained in this Agreement, the parties agree as follows: 1. Scope of Services The Contractor agrees to perform the tasks described on Exhibit "A". The Contractor will be responsible to provide work products and services of a quality and professional standard acceptable to the City. The Contractor will, without additional compensation, correct or revise any negligent errors, omissions or other deficiencies in its plans, designs, drawings, specification, reports and other services required, whether during or after the Term of this Agreement. Any approval by the City of Contractor's services will not in any way relieve the Contractor of responsibility for the accuracy and adequacy of its services. The Contractor shall obtain and pay for all electrical permits, fees, charges and inspections. The City shall obtain and pay for all other permits. If any part of the Contract requires Work that does not include a description for how the Work is to be performed, the Work shall be performed in accordance with standard trade practice(s). For purposes of the Contract, a standard trade practice is one having such regularity of observance in the trade as to justify an expectation that it will be observed by the Contractor in doing the Work. The Contractor agrees he has satisfied himself as to the nature and location of the Work, the character, quantity and kind of equipment needed during the execution of the Work, the location, conditions and other matters which can in any manner affect the Work under this Contract, and acknowledges that he has had a reasonable opportunity to examine the Project site. Reference Information, whether written or oral, provided to the Contractor is not part of the Contract and there is no guarantee of its accuracy. Any use of Reference Information by the Contractor is done solely at the Contractor's risk. The Contractor shall regularly and promptly remove all refuse, waste and debris produced by his operation. Refuse shall not be permitted to accumulate to the extent that it interferes with free access to the jobsite. Compliance with all safety requirements of good housekeeping is an essential part of the Contractor's obligation. In the event of the Contractor's failure or refusal to meet these requirements, and after 7-days notification, Agreement#8087_ARC_Derising_Walls_Construction March 4,,2021 Page 1 of 16 DocuSign Envelope ID:07D2AC28-051 F-44D1-8812-4007C31087AF refuse removal may be done by the City and charged against the account of the Contractor. 2. Contractor's Representations & Qualifications The Contractor represents and warrants that it has all necessary licenses and certifications to perform the services provided for in the Agreement, and is qualified to perform those services. Contractor represents that the person signing this Agreement on behalf of Contractor has all requisite authority to bind Contractor to the terms and conditions of this Agreement. 3. Compensation As compensation for the Contractor's performance of the services provided for in this Agreement, the City will pay the Contractor the fees and costs specified in Exhibit "B" subject to additions and deductions by Change Order as provided in the Contract Documents. These payments will be full compensation for work performed or services rendered and for all labor, materials, supplies, equipment, overhead, profit, and incidentals necessary to complete the work. No payment shall be issued until a Statement of Intent to Pay Prevailing Wages form, for the Contractor and each and every Subcontractor, has been approved by the State Department of Labor & Industries, and is received by the City. The Contractor will submit to the City an invoice upon completion and delivery to the City of those deliverables described in the scope of work, or a proportionate share of work completed if the work schedule extends beyond 30 days from the Notice to Proceed letter, and the City upon acceptance of the invoice will process the invoice in the next billing/claim cycle, and will remit payment to the Contractor, subject to any conditions or provisions in this Agreement or Amendment, including retainage provisions. The Agreement number must appear on all invoices submitted. Copies of original supporting documents will be supplied to the City upon request. Subsequent invoices shall be submitted every 30 days. The not-to-exceed amount for this agreement is FIFTY ONE THOUSAND ONE HUNDRED FORTY EIGHT DOLLARS AND SIX CENTS ($51,148.06). The Contractor will not undertake any work or otherwise financially obligate the City in excess of this amount without prior written authorization consistent with this agreement. Compensation to be paid the Contractor in succeeding years after the current year will be 'contingent upon availability of funds. 4. Retainage and Prevailing Wages Contractor shall file a "Statement of Intent to Pay Prevailing Wages" with the State of Washington Department of Labor & Industries prior to commencing the Contract work. The Contractor shall pay prevailing wages and comply with Chapter 39.12 of the Revised Code of Washington, as well as any other applicable prevailing wage rate provisions. The prevailing wage rate revision effective date, March 1, 2021 is attached as Exhibit C and by this reference incorporated herein and made a part hereof. No payment shall be issued until a Statement of Intent to Pay Prevailing Wages form, for the Contractor and each and every subcontractor, has been approved by the State Department of Labor & Industries, and is received by the City. Retainage, if applicable, shall not be released until an Affidavit Agreement#8087_ARC_Demising_Walls_Construction March 4, 2021 Page 2 of 16 DocuSign Envelope ID:07D2AC28-051 F-44D1-8812-4007C31087AF of Wages Paid form for the Contractor and each and every subcontractor, has been approved by the State Department of Labor & Industries, and is received by the City. The Contractor shall furnish the City with an executed performance bond for the full Contract amount, unless the contact amount is $150,000.00 or less and the Contractor has elected to have 10% retainage held by the City, in which case a performance bond is not required for this project: The Contractor shall execute a "Declaration of Option for Performance Bond or Additional Retainage" to indicate the option. If the Contractor elects to furnish a performance bond, the City shall hold back retainage in the amount of 5% of any and all payments made to the Contractor. The Contractor can choose to have the retainage held by the City in a non-interest bearing account, have it placed in an_Escrow (interest bearing) Account, or submit a bond in lieu of retainage. If the Contractor elects, l0% retainage, the City will hold 10% of the total Contract amount, pursuant to ROW 39.08.010. Said retainage shall be held by the City for a period of 30 days after the Completion Date, or until receipt of all necessary releases from the State Department of Revenue and State Employment Security Department, including Affidavits of Wages paid for the Contractor and each and every subcontractor, and until settlement of any liens filed under Chapter 60.28 RCW, whichever is later. 5. Defective or Unauthorized Work The City reserves its right to withhold payment from the Contractor for any defective or unauthorized work. Defective or unauthorized work includes, without limitation: work and materials that do not conform. to the requirements of this Contract; and extra work and materials furnished without the City's written approval. If the Contractor is unable, for any reason, to satisfactorily complete any portion of the work, the City may complete the work by contract or otherwise, and the Contractor shall be liable to the City for any additional costs incurred by the City. "Additional costs" shall mean all reasonable costs, including legal costs and attorney fees, incurred by the City beyond the maximum Contract price specified above. The City further reserves its right to deduct the cost to complete the Contract work, including any additional costs, from any and all amounts due or to become due the Contractor. 6. Time forPerformance, Term, and Termination of Agreement The Contractor will not begin any work under this Agreement until authorized in writing by the Notice to Proceed by the City. The term of this Agreement commences on the later date of the Parties execution of this Agreement, as reflected on the signature page. The Contractor will complete the services in accordance with those tasks provided on Exhibit "A" and, subject to extensions for authorized change orders, no later than 30 calendar days after the date of the Notice to Proceed. Completion shall be the date on which the Scope of Work is complete to the extent that it can be occupied or used for its intended purpose in accordance with this contract. City shall extend the Completion Date for City-caused delays and/or if a permit is not issued by the time an inspection is needed. If said work..is not completed within the time specified, the Contractor agrees to pay liquidated'darriages"te the City as follows: Agreement#8087_ARC_Demising_Walls_Construction March 4,2021 Page 3 of 16 DocuSign Envelope ID:07D2AC28-051 F-44D1-8812-4007C31087AF A. The Contractor shall pay liquidated damages for each working day beyond the number of working days established for physical completion, according to the following formula: Contract Price (without tax) x 0.15, divided by the original number of working days for completion. B. The Contractor authorizes the City to deduct these liquidated damages from any money due or coming due to the Contractor. C. Liquidated damages will not be assessed for any days for which an extension of time is granted. No deduction or payment of liquidated damages will, in any degree, release the Contractor from further obligations and liabilities to complete the entire Contract. Termination for cause. Either party may terminate this Agreement upon written notice to the other party if the other party fails substantially to perform in accordance with the terms of this Agreement through no fault of the party terminating the Agreement. The notice will identify the reason(s) for termination, and specify the effective date of termination. In the event of a default by Contractor, City may suspend all payments otherwise due to Contractor and the City will have no further obligations to Contractor. Termination for Convenience. The City may terminate this Agreement upon not less than seven (7) days written notice, which shall contain the effective date of termination, to the Contractor. If this Agreement is terminated through no fault of the Contractor, the Contractor will be compensated for services performed prior to termination in accordance with the rate of compensation provided in Exhibit "B". This payment shall fully satisfy and discharge the City of all obligations and liabilities owed the Contractor, who shall not be liable for any anticipated profits or other consequential damages resulting from the termination. Upon receipt of a termination notice, the Contractor will promptly discontinue all services affected and deliver to the City all data, drawings, specifications, reports, summaries, and such other information and materials as the Contractor may have accumulated, prepared, or obtained in performing this Agreement, whether fully or partially completed. All rights and remedies provided in this Section are not exclusive of any other rights or remedies that may be available to the City, whether provided by Law, equity, in any other agreement between the parties or otherwise. 7. Changes, Protest and Claims The City may issue a written change order for any change in the Contract work during the performance of this Contract. If the Contractor determines, for any reason, that a change order is necessary, the Contractor must submit a written change order request to an authorized agent of the City within 10 calendar days of the date the facts and events giving rise to the requested change occurred. The City too may, without invalidating this Contract, order in writing, extra work or make changes by altering, adding to, or deducting from the Scope of Work. If the City determines that the change, whether initiated by the City or Contractor, 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. If the Contractor fails to request Agreement 4 8087_ARC_Demising_Walls_Construction March 4, 2021 Page 4 of 16 DocuSign Envelope ID:07D2AC28-051 F-44D1-8812-4007C31087AF a change order within the time allowed, 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 Contractor may elect to protest the adjustment as provided below: A. Procedure and Protest by the Contractor. 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 shall: 1.Within 5 days of receiving a written change order or oral order that the Contractor desires to protest, the Contactor shall give a signed written notice of protest to the City; and 2. Supplement the written protest within 14 calendar days with a written statement that provides the following information: a. The date of the Contractor's protest. b. The nature and circumstances that caused the protest. c. The provisions in this Contract that support the protest. d. The estimated dollar cost, if any, of the protested work and how that estimate was determined. e. An analysis of the progress schedule showing the schedule change or disruption if the Contractor is asserting a schedule change or disruption. The Contractor shall keep complete records of extra costs and time incurred as a result of the protested work. The City shall have access to any of the Contractor's records needed for evaluating the protest. 3. The City will evaluate all protests, provided the procedures in this section are followed. If the City determines that a protest is valid, the City will adjust payment for work or time by an equitable adjustment. No adjustment will be made for an invalid protest. B. Contractor's Duty to Complete Protested Work. In spite of any protest, the Contractor shall proceed promptly with the work as the City has ordered. C. Contractor's Acceptance of Changes. 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 the 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. 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 Agreement#8087_ARC_Demising_Walls_Construction March 4,2021 Page 5of16 DocuSign Envelope ID:07D2AC28-051 F-44D1-8812-4007C31087AF from the City any written or oral order (including directions, instructions, interpretations, and determination). G. Claims The Contractor waives right to a claim if they have not followed the protest procedures outlined in this Contract. If resolution of a protest cannot be reached, and the Contractor wishes to pursue a claim, the Contractor shall give written notice of claim to the City within 15 calendar days of the City's notice of its final decision on the Contractor's protest. Any claim for damages, additional payment for any reason, or extension of time, whether under this Contract 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 Contract. At a minimum, a Contractor's written claim must include the information set forth regarding protests in this Contract. 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. The Contractor must, in any event, file any claim or bring any suit arising from or connected with this Contract prior to signing the Final Payment Form. 8. Warranty. All defects in workmanship and materials that occur within one year of the Contract Completion date shall be corrected by the Contractor. When defects are corrected, the warranty for that portion of the work shall extend for one year from the date such correction is completed and accepted by the City. The Contractor shall begin to correct any defects within 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, the City may complete the corrections and the Contractor shall pay all costs incurred by the City in order to accomplish the correction. 9. Ownership and Use of Documents All documents, reports, memoranda, diagrams, sketches, plans, surveys, design calculations, working drawings and any other materials created or otherwise prepared by the Contractor as part of his performance of this Agreement (the "Work Products") will be owned by and become the property of the City, may be used by the City for any purpose beneficial to the City, and are subject to the requirement of the Public Records Act, 42.56 RCW. The Contractor acknowledges that the Agreement, and documents provided in connection with this Agreement, become a public record and may be subject to inspection and copying, unless the information is declared by law to be confidential or is otherwise exempted from public records disclosure requirements. The Contractor agrees to give its fullest assistance to the City in identifying, locating, and copying any records in the Contractor's possession that are responsive, as determined by the City in its sole discretion, to a Public Records Act request received by the City. 10. Records Inspection and Audit All compensation payments will be subject to the adjustments for any amounts found upon audit or otherwise to have been improperly invoiced, and all records and books of Agreement#8087_ARC_Demising_Walls_Construction March 4, 2021 Page 6 of 16 DocuSign Envelope ID:07D2AC28-051 F-44D1-8812-4007C31087AF accounts pertaining to any work performed under this Agreement will be subject to inspection and audit by the City for a period of up to three (3) years from the final payment for work performed under this Agreement. If any litigation, claim, dispute, or audit is initiated before the expiration of the three (3) pear period, all records and books of account pertaining to any work performed under this Agreement will be retained until all litigation, claims, disputes, or audit are finally resolved. 11. Continuation of Performance In the event that any dispute or conflict arises between the parties while this Agreement is in effect, the Contractor agrees that, notwithstanding such dispute or conflict, the Contractor will continue to make a good faith effort to cooperate and continue to work toward successful completion of the delivery of services and its contractual responsibilities. 12. Independent Contractor The Contractor will perform the services as an independent contractor and will not be deemed, by virtue of this Agreement and performance of its provisions, to have entered into any partnership, joint venture, employment or other relationship with the City. Nothing in this Agreement creates any contractual relationship between the Contractor's employee, agent, or subcontractor and the City. 13. Administration of Agreement This Agreement will be administered by Fred Thomas, on behalf of the Contractor, and by the Mayor of the City, or designee, on behalf of the City. Any written notices required by the terms of this Agreement will be served on or mailed to the following addresses: City of Auburn Kelly-Thomas, Inc. Josh Arndt, Real Property Fred Thomas, Partner 25 West Main St 26318 Entwhistle Rd. E Auburn WA 98001-4998 Buckley, Washington 98321 Phone: 253.931.4011 Phone: 253.735.3928 Email: jarndt@auburnwa.gov Cell: 206.786.7480 Email: Fred©Kellythomasinc.com 14. Notices All notices or communications permitted or required to be given under this Agreement will be in writing and will be deemed to have been duly given if delivered in person or sent by regular mail, postage prepaid, [by certified mail, return receipt requested,) and addressed, if to a party of this Agreement, to the address for the party set forth above. If addressed to a non-party, the notice will be sent, in the foregoing manner, to the address designated by a party to this Agreement. Either party may change its address by giving notice in writing to the other party. 15. Insurance Agreement#8087_ARC_Demising_Walls_Construction March 4, 2021 Page 7 of 16 DocuSign Envelope ID:07D2AC28-051 F-44D1-8812-4007C31087AF The Contractor will, at its sole expense, procure and maintain for the duration of this Agreement and 30 days thereafter insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of this Agreement by the Contractor, its agents, representatives, or employees. Contractor's maintenance of insurance as required by the Agreement will 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. The Service Contractor will obtain insurance of the types described below: a. Automobile Liability insurance covering all owned, non-owned, hired and leased vehicles used in connection with performance and construction work of at least: $2,000,000 combined single limit for bodily injury and property damage, $4,000,000 general aggregate (including umbrella limits). Coverage must include the following: a. Owned vehicles b. Leased vehicles c. Hired vehicles d. Non-owned vehicles b. Commercial General Liability - at least $2,000,000 per occurrence and $2,000,000 annual aggregate, including Personal Injury Liability, Bodily Injury, Property Damage Liability and Contractual and Products/Completed Operations Liability naming the City and Feenix Parkside LLC, as additional insured using ISO Additional Insured endorsement CG 20 10 10 01 and Additional Insured-Completed Operations endorsement CG 20 37 10 01 or substitute endorsement providing at least as broad coverage. Coverage must be primary and non-contribution and include the following: (i) Premises — Operations (ii) Elevators and Hoists (iii) Independent Contractor (iv) Contractual Liability assumed under the Professional Services Contract (v) Completed Operations — Products (vi) Explosion, Underground and Collapse (XUC) Coverage c. Workmen's Compensation — Statutory Limits for the State in which the work is to be performed, together with "ALL STATES", "VOLUNTARY COMPENSATION" AND "FOREIGN COMPENSATION" coverage endorsements. d. Builders All Risk in the amount of the full replacement cost of the project improvements. For Automobile Liability and Commercial General Liability insurance, the policies are to contain, or be endorsed to contain that Contractor's insurance coverage will be primary insurance as respects the City and Feenix Parkside LLC. Any insurance, self-insurance, or self-insurance pool coverage maintained by the City will be excess of the Contractor's insurance and will not contribute with it. Insurance is to be placed with an authorized insurer in Washington State. The insurer must have a current A.M. Best rating of not less than A:X. Agreement.#8087_ARC_Demising_Walls_Construction March 4,2021 Page 8 of 16 DocuSign Envelope ID:07D2AC28-051 F-44D1-8812-4007C31087AF Contractor shall list The City of Auburn, Feenix Parkside LLC and Azose Commercial Properties all as Additional Insured. All such policies of insurance must contain a provision that the company writing said policy will give Feenix Parkside LLC thirty (30) days prior written notice of any cancellation or lapse of the effective date or any reduction in the amounts of such insurance. As well, the policies shall preclude subrogation claims by the insurer against anyone insured thereunder. The Contractor will furnish the City with original certificates of insurance and a copy of the amendatory endorsements, including but not necessarily limited to the additional insured endorsement, evidencing the insurance requirements of this Agreement before commencement of the work. The City reserves the right to require that complete, certified copies of all required insurance policies and/or evidence of all subcontractors' coverage be submitted to the City at any time. The City may withhold payment if the Contractor does not fully comply with this request. If the Contractor maintains higher insurance limits than the minimums shown above, the City will be insured for the full available limits of Commercial General and Excess or Umbrella liability maintained by the Contractor, irrespective of whether such limits maintained by the Contractor are greater than those required by this Agreement or whether any certificate of insurance furnished to the City evidences limits of liability lower than those maintained by the Contractor. Failure on the part of the Contractor to maintain the insurance as required will constitute a material .breach of contract, upon which the City may, after giving five business days' notice to the Contractor to correct the breach, immediately terminate the Agreement or, at its discretion, procure or renew such insurance and pay any and all premiums in connection therewith, with any sums so expended to be repaid to the City on demand, or at the sole discretion of the City, offset against funds due the Contractor from the City. 16. Indemnification/Hold Harmless Except for injuries and damages caused by the sole negligence of the City, Feenix Parkside, LLC or Azose Commercial Properties, the Contractor will defend, indemnify and hold the City and its officers, officials, employees, and volunteers harmless from any and all claims, injuries, damages, losses, or suits of every kind, including attorney fees and litigation expenses, arising out of or resulting from the acts, errors, or omissions of the Contractor, its employees, agents, representatives, or subcontractors, including employees, agents, or representatives of its subcontractors, made in the performance of this Agreement, or arising out of worker's compensation, unemployment compensation, or unemployment disability compensation claims. However, 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 Consultant and the Public Entity, its officers, officials, employees, and volunteers, the Consultant's liability, including the duty and cost to defend, hereunder shall be only to the extent of the Consultant's negligence. Agreement#8087_ARC_Demising_Walls_Construction March 4.2021 Page 9 of 16 DocuSign Envelope ID:07D2AC28-051 F-44D1-8812-4007C31087AF The Contractor shall take all precautions necessary and shall be responsible for the safety of its employees, agents, and subcontractors in the performance of this Contract. All work shall be done at the Contractor's own risk, and the 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. The Contractor agrees that neither completion nor final acceptance shall relieve the Contractor of the indemnity and other provisions of this section. If is further specifically and expressly understood that this indemnification constitutes the Contractor's waiver of immunity under Industrial Insurance, Title 51 RCW, solely for the purposes of this indemnification. This waiver has been mutually negotiated by the parties. The provisions of this section will survive the expiration or termination of this Agreement. 17. Assignment and Subcontracting Neither party to this Agreement will assign any right or obligation hereunder in whole or in part, without the prior written consent of the other party. No assignment or transfer of any interest under this Agreement will release the assignor from any liability or obligation under this Agreement, or to cause any such liability or obligation to be reduced to a secondary liability or obligation. The Contractor shall not subcontract work unless the City approves in writing. If the City requests, the Contractor shall provide proof that the subcontractor has the experience, ability, and'equipment the work requires. The Contractor shall require each subcontractor to comply with RCW 39.12 (Prevailing Wages on Public Works) and to furnish all certificates and statements required by the Contract. No payment shall be issued until a Statement of Intent to Pay Prevailing Wages form, for the Contractor and each and every subcontractor, has been approved by the State Department of Labor & Industries, and is received by the City. Approval to subcontract shall not: 1. Relieve the Contractor of any responsibility to carry out the Contract. 2. Relieve the Contractor of any obligations or liability under the Contract and the Contractor's bond. 3. Create any contract between the City and the subcontractor, or 4. Convey to the subcontractor any rights against the City. This section does not create a contractual relationship between the City and any subcontractor. Also, it is not intended to bestow upon any subcontractor, the status of a third-party beneficiary to the Contract between the City and the Contractor. 18. Nondiscrimination The Contractor may not discriminate regarding any services or activities to which this Agreement may apply directly or through contractual, hiring, or other arrangements on the grounds of race, color, creed, religion, national origin, sex, age, or where there is the presence of any sensory, mental or physical handicap. 19. Amendment, Modification or Waiver Agreement 4 8087_ARC_Demising_Walis_Construction March 4, 2021 Page 10 of 16 DocuSign Envelope ID:07D2AC28-051 F-44D1-8812-4007C31087AF • No amendment, modification, or waiver of any condition, provision, or term of this Agreement will be valid or of any effect unless made in writing, signed by the party or parties to be bound, or the party's or parties' duly authorized representative(s) and specifying with particularity the nature and extent of such amendment, modification or waiver. Any waiver, approval or acceptance, or payment by any party will not affect or impair that party's rights arising from any default by the other party. 20. Parties in Interest This Agreement is binding upon, and the benefits and obligations hereto will inure to and bind, the parties and their respective successors and assigns, although this section will not be deemed to permit any transfer or assignment otherwise prohibited by this Agreement. This Agreement is for the exclusive benefit of the parties and it does not create a contractual relationship-with or exist for the benefit of any third party, including contractors, sub-contractors and their sureties. 21. Force Majeure Any delay in the performance of any obligation under this Agreement shall be excused, if and so long as the performance of the obligation is prevented, delayed or otherwise hindered by any act not within the control of a party such as fire, cyber/ransomware attack, earthquake, flood, explosion, actions of the elements, riots, mob violence, strikes, pandemic, lockouts, and emergency orders of the state or federal government. 22. Applicable Law This Agreement and the rights of the parties will be governed by with the laws, regulations, and ordinances of the City, of the State of Washington, and King County. Venue for any action involving this agreement will be in the county in which the property or project is located, and if not site specific, then in King County. It is agreed that any applicable statute of limitation will commence no later than the substantial completion by the Contractor of the services. 23. Captions, Headings and Titles All captions, headings or titles in the paragraphs or sections of this Agreement are inserted for convenience of reference only and will not constitute a part of this Agreement or act as a limitation of the scope of the particular paragraph or sections to which they apply. Where appropriate, the singular will include the plural and vice versa and masculine, feminine and neuter expressions will be interchangeable. Interpretation or construction of this Agreement will not be affected by any determination as to who is the drafter of this Agreement, this Agreement having been drafted by mutual agreement of the parties. 24. Severable Provisions Each provision of this Agreement is intended to be severable. If any provision is illegal or invalid for any reason, such illegality or invalidity will not affect the validity of the remaining provisions. 25. Entire Agreement This Agreement together with any subsequent amendments or addendums contains the entire understanding of the parties in respect to the transactions contemplated and Agreement#8087_ARC_Demising_Walls_Construction March 4, 2.021 Page 11 of 16 DocuSign Envelope ID:07D2AC28-051F-44D1-8812-4007C31087AF supersedes all prior representations, agreements and understandings between the parties, either oral or written. No other understandings, oral or otherwise, regarding this Agreement shall bind any party. 26. Non-Availability of Funds Every obligation of the City under this Agreement is conditioned upon the availability of funds appropriated or allocated for the performance of such obligation; and if funds are not allocated and available for the continuance of this Agreement, then this Agreement may be terminated by the City at the end of the period for which funds are available, without the seven (7) days' notice provided by Section 5. No liability will accrue to the City in the event this provision is exercised, and the City will not be obligated or liable for any future payments or damages as a result of termination under this Section. 27. Counterparts This Agreement may be executed in multiple counterparts, each of which will be one and the same Agreement and will become effective when one or more counterparts have been signed by each of the parties and delivered to the other party. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed effective the day and year first set forth above. CITY OF AUBURN Kelly-Thomas, Inc. r—DocuSigned by: Adigi-AEf�L3�4cvT aat - �� Nancy Backus, Mayor :nature Name: FRP A 771n,i44-i z12. , Title: "56C Date: 2//7/672/ Approved as to form: Federal Tax ID No: V/DocuSigned by: /ei fP i0 earn au, City Attorney Agreement#8087_ARC_Demising_VVails_Cons#ruction March 4,2021 Page 12 of 16 DocuSign Envelope ID:07D2AC28-051 F-44D1-8812-4007C31087AF EXHIBIT A Scope of Services Kelly-Thomas, Inc. 26318 EntT4histle Rd. E. Buckley, Washington 98321 Auburn/Seattle: (253) .735-3928 Sumer/Tacoma: (253) 863-2450 Facsimile: (364) 829-6599 PROPOSAL 4 80S7 DATE: 03/01,1021 Page 1 of 2 Submitted to: Job Name: City of Auburn CeD: (253) 361-1235 Auburn Resource Center Josh Arndt Office:(253) 288-4325 2802-2816 Auburn Was North 25 West Main St. Auburn,WA 98002 Auburn,WA 98001 1. Bad approL 140 lineal feet of 12'0"high wail to underside of trusses and FSK paper sheathing. Wall will be constructed using 6"10-gauge studs ci 24" 518"drywall both sides,fire tape only finish Price includes R-19 sound insulation. 19,219.00 2. Painting-One coat primer and one coat satin latex enamel on the new demising walls. 4,033.00 3. Electrical scope of vrork: 15,151.00 01 Permit Split rsti_ekTlit founres in tint 2816 from I.ait 1312 bask to unit 1316 efctrissl paw u:e mining ces�ing OCC sensor:from unix 2812 Ccauluiewireltreaker. . .00 02 Permit Split emoting kin fixture:in trait 2812 from unit 2310 bock to unit 2312 electrical pond, Add:stitch to dem well in trait 2812 to accottnnodatr lighting Aid(2)LO 'receptacle:to new IT&l III unit 2812 Condnitisirelneakes. 3 30.00 03 Permit Add(1)tint&in*zuinuets&to/Mb 2810 to accommodate Egluine spftt lighting from unit 2- • Add(2)124T;r ecept,ct:J in nut 2310 dewing tsall u:cug electrical panel in unit Relocate(2)RTC unity from 2410 to unit 2308 Add(1)staitt6 in unit 2510 to accamzdate Ming. C53.156.00 4. General Conditions: 2,652.00 • MobRize and layout • Rental equipment • Periodic cleaning and job maintenance • Disposal fees • Supervision and project coordination • Final clean Orer]testd and contractor's fee. F.400.00 C o.tret►Ur,u Agreement#8087_ARC_Demising_Walls_Construction March 4,2021 Page 13 of 16 DocuSign Envelope ID:07D2AC28-051F-44D1-8812-4007C31087AF elly-Thomas, 263,18 Enftrhistie Rd. E. Buckler, Washington 98321 Auburn/Seattle: (253) 735-3928 Sumner/Tacoma: (253)863-2450 Facsimile:(360) 829-6599 PROPOSAL 4 807 DATE: 03i01/2021 Page 2 of 2 Sol-Total 467456.00 (1702 Auburn)10.10 WSST 4112:06 Total 51,148.06 44LTERNATE-.. 1. Prhivide and install 4"rubber base on bath sides of boll)nay%nib.. ADD*NE. 4 p!as WSST EXCLUSIONS AND QUALIFICATIONS: L Rms.poondia.engirserin„solar Tarim.' 1 inspections or fete for istase are? LC.(act in ocettract). 2. SuA.,1/1, andiar disposal of asbestes orIIniser lonterdass annterials are?ILC. 3. Phans data.Era dams,or mpetitcations to none are NIC. 4.Mode= and isiodira comings Stir NIC 5.'Work to be pa:famed&tin camel budans3 hews.lissday tirnFthky.7AM to 3:34) In....Ins,Etabci alert*?in dim proposal Any cher boars or weekend cook spent:022y requested&onto KIM at 1%dun znonts1 roe. E. Cost ofire6eno....gas.pourer.ear.)to perform wort co this' project is PCI.C. 7.Looses fur tuntercroanul by owner. 8. Donne=nod by=foreseen circumstances(ie.,sodergromest mains,es3n2gad ipes.etr. are NIC. So. Anytlin not specifically fisted en its pivotal is NIC. PROPOSAL ACCIEPTANCE: 3/4,2021 Cii.9<mf• Arm Siglaksznr OUR FaoPOSAt.VaLL,LEMAN!N EFFECT FOC 34 11.A.111.Arrh:a utittat TT WELL ItLs MEM'TO 01114 WE MAIM VOLT TOR TLi O7sPORTLSNITY TO 0110TOlECT- CONTRACTOR'S LICENSE. faLLYTEWC11 Agreement#8087_ARC_Demising_Walls_Construction March 42021 Page 14 of 16 DocuSign Envelope ID:07D2AC28-051 F-44D1-8812-4007C31087AF EXHIBIT B Payment Terms Total compensation for the Contractor's services will not exceed $51,148.06 for the term of this Agreement. Payment will be provided by the City as follows: 9 Upon completion and delivery of all deliverables described in Exhibit A subject to any retainage provisions o If the work schedule goes beyond 30 days from the Notice to Proceed than contractor shall submit an invoice describing the percentage of work completed and the City shall pay that proportionate share of the total contract amount as it may be amended. Agreement#8087_ARC_Demising_Walls_Construction March 4, 2021 Page 15 of 16 DocuSign Envelope ID:07D2AC28-051F-44D1-8812-4007C31087AF Exhibit C Prevailing Wage Rates o County work performed: King o Effective Date of wages: March 1, 2021 o Washington State Department of Labor and Industries Wage Lookup o https://secure.ini.wa.gov/wagelookup/?utm medium=email&utm source=q ovdelivery Agreement#8087_ARC_Demising_WaIIs_Construction March 4,2021 Page 16 of 16