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HomeMy WebLinkAboutresolution.council.094-23RESOLUTION #094 (Series of 2023) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN AND TOLIN MECHANICAL. AUTHORIZING THE CITY MANAGER TO EXECUTE SAID CONTRACT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council a contract for, the for purchase and installation of three new gas FTXL Fire Tube Boilers, manufactured by Lochinvar, to replace the three failing Patterson Kelly boilers currently installed at the Wheeler Opera House, between the City of Aspen and Tolin Mechanical, a true and accurate copy of which is attached hereto as Exhibit "A"; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, That the City Council of the City of Aspen hereby approves that Contract for purchase and installation of three new gas FTXL Fire Tube Boilers, between the City of Aspen and Tolin Mechanical, a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager to execute said agreement on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the City of Aspen on the 11 to day of July 2023. Torre, Mayor I, Nicole Henning, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of that resolution adopted by the City Council of the City of Aspen, Colorado, at a meeting held, July 111, 2023. Nicole Henning, City Clerk DocuSign Envelope ID: 876CCOOA-5F05-4585-A797-6071A620576E TolinMechanical A Service Logic Company May 19, 2023 City of Aspen 427 Rio Grande Place Aspen, Colorado 81611 Tolin Mechanical I City of Aspen Wheeler Opera House Boiler Project IHERG1'SIM PAi WIN The City of Aspen purposes the upgrade to and replacement of the boilers and boiler pumps for the City of Aspen Wheeler Opera House boiler plant. Our goal for this Invitation for Bid (ITB) is assure City Representatives that Tolin Mechanical has the experience, knowledge and resources to execute this project in a timely and professional manner. Tolin Mechanical is pleased to be considered as the installing contractor for the Wheeler Opera House boiler plant. We have reviewed and acknowledge the content of the bid documentation, engineered drawings and all addenda issued as part of this process. As a Commercial and industrial HVAC contractor with a local presence, Tolin Mechanical is uniquely qualified to deliver a turnkey solution to the City of Aspen. By way of background, Tolin Mechanical was founded in 1948, headquartered in Denver employing more than 325 associates including 22 in our Mountain Branch. In addition to our Denver operations, Tolin has three Branch offices within Colorado: Silverthorne (Mountain Branch), Colorado Springs and Fort Collins. We are confident our industry experience, technical expertise, breadth of services, depth of resources, local leadership and experienced project technicians creates an ideal partnership for the Town of Snowmass Village. As a leading HVAC contractor in Colorado, we have executed many projects similar in scope and size; we continually pull from these experiences to successfully execute projects that exceed customer expectations on time and on budget. Successful project execution requires a comprehensive knowledge of project deliverables and an experienced staff to coordinate between customers, vendors, subcontractors, local authorities, Homeowners Associations, logistic companies, etcetera. Tolin Mechanical employs a talented staff to accomplish this goal; this project will include a Projects Sales Engineer, Project Manager, Site Supervisor, Project Technicians, Controls Engineer/Technicians, Safety Manager, Energy Engineer, and a Projects Coordinator. 573 Adams Avenue, Units A & B * Silverthorne, Colorado 80498 * (970) 468-1104 * (970) 468-1619 DocuSign Envelope ID: 876CCOOA-5F05-4585-A797-6071A620576E Tolin Mechanical 3uilding -ificieny any �)us.ta!r;hilily A Service Logic Company As part of generating our response to the IFB, we have developed; 1. A project plan consisting of project schedule and subcontractor requirements. 2. A site plan detailing material logistics, laydown areas, equipment staging, vehicle parking; 3. A safety plan ensuring all activities are performed in accordance with Tolin Mechanical's safety procedures and protocols. I appreciate the opportunity to provide this response and look forward to our continued work with you and the City of Aspen. Sincerely, Chris Belby Tolin Mechanical General Manager Mountain Region sue- P�P.I Sawyer Bluhm Tolin Mechanical Projects Sale Engineer 573 Adams Avenue, Units A ✓L B * Silverthorne, Colorado 80498 * (970) 468-1104 " (970) 468-1619 DocuSign Envelope ID: 876CCOOA-5FO5-4585-A797-6071A620576E BID PROPOSAL FORM PROJECT NO.: 2023-192 BID DATE: PROJECT: PROPOSAL SUBMITTED BY: Tolin Mechanical Systems Company CONTRACTOR CONTRACTOR'S PROPOSAL TO: The Governing Body of the City of Aspen, Colorado The undersigned responsible bidder declares and stipulates that this proposal is made in good faith, without collusion or connection with any other person or persons bidding for the same work, and that it is made in pursuance of and subject to all the terms and conditions of the advertisement for bid, the invitation to bid and request for bid, all the requirements of the bid documents including the plans and specifications for this bid, all of which have been read and examined prior to signature. The bidder agrees to keep this bid open for Six 60 canseeutive calendar days from the date of bid opening. The Contractor agrees that construction shall start immediately following a mandatory pre - construction conference held by the Engineering Department, which also constitutes the Notice to Proceed. Submission of this proposal will be taken by the City of Aspen as a binding covenant that the Contractor will finish construction within the time specified in the Special Conditions of this contract document. The City of Aspen reserves the right to make the award on the basis of the bid deemed most favorable to the City, to waive any informalities or to reject any or all bids. The City shall not pay the Contractor for defective work and/or for repairs or additional work required for successful completion of the project. All work not specifically set forth as a pay item in the bid form shall be considered a subsidiary obligation of the Contractor and all costs in connection therewith shall be included in the prices bid for the various items of work. Prices shall include all costs in connection with furnishing the proper and success completion of the BP1-971.doc *Bpi Page 1 Contractor's Initials DocuSign Envelope ID: 876CCOOA-5FO5-4585-A797-6071A620576E work, including furnishing all materials, equipment and tools, and performing all labor and supervision to fully complete the work to the City's satisfaction. Poor quality and workmanship shall not be paid for by the City. Such work product must be removed immediately and replaced properly at no cost to the City. All quantities stipulated in the bid form at unit prices are approximate and are to be used only as a basis for estimating the probable cost of work and for the purpose of comparing the bids submitted to the City. The basis of payment shall be the actual amount of materials furnished and work done. The Contractor agrees to make no claims for damages, anticipated profit, or otherwise on account of any differences between the amount of work actually performed and materials actually furnished and the estimated amount of work. The City reserves the right to increase or decrease the amount of work to be done on the basis of the bid unit price and up to plus or minus Twenty Five (25) Percent of the total bid. By signing this document, Contractor certifies and represents that at this time: (i) Professional shall confirm the employment eligibility of all employees who are newly hired for employment in the United States; and (ii) Professional has participated or attempted to participate in the Basic Pilot Program in order to verify that it does not employ illegal aliens. I hereby acknowledge receipt of ADDENDUM(s) numbered 1 through BP1-971.doc "BP1 Page 2 Contractors Initials DocuSign Envelope ID: 876CCOOA-5F05-4585-A797-6071A620576E ESTIMATED QUANTITYLIS?' Item Cost Remove and dispose of existing boilers 5 259.00 Install (3) Lochinvar FTX1000N 10:1 Turndown ratio, 1 million BTU boilers ' $125, 585.00 Install new flu piping $5,597.00 Connect to the existing piping and modify if needed $15,624.00 Install air and dirt separators with magnets and sweat unions in the return going to each boiler $17,800.00 Install new Grundos boiler pumps 20 919.00 Add lost glycol to the system to correct operating level $892.00 Perform factory startup and test for proper operation $6 291.00 TOTAL COST $197,967.00 BP1-971.doc *BP1 Page 3 Contractor's Initials DocuSign Envelope ID: 876CCOOA-5FO5-4585-A797-6071A620576E Total Bid in Numbers: $197,967.00 Total Bid in Words: One Hundred Ninety Seven Thousand Nine Hundred and Sixty Seven I acknowledge that in submitting this bid it is understood that the right to reject any and all bids has been reserved by the owner. Authorized Officer: -Sawyer Bluhm , Title: Project Sales Engineer Full name signature: �O��VD-O)— Company address: 5573 Adams Ave., STE A & B Silverthorne, CO 80498 Telephone number: 970-468-1104 Email: sbluhmOtolin.Com Attested by: BP1-971.doc "BP1 Page 4 Contractoes Initials DocuSign Envelope ID: 876CCOOA-5F05-4585-A797-6071A620576E Subcontractor & Material Su tier List Name: Rampart Supply , Phone #: 303-629-6122 Address: Service or Product: E ui ment and Piping Supply Name: Pope Mechanical Insulation . Phone #:720-708-4694 Address:12860 W Ceder Dr #207 Lakewood CO 80228 Service or Product: Mechanical Insulation Name: Address: Service or Product: Name: Address: Service or Product: Name: Address: Service or Product: Name: Address: Service or Product: BP1-971.doc *BP1 Page 5 Phone #: Phone #: Phone #: Phone #: Contractor's Initials DocuSign Envelope ID: 876CCOOA-5F05-4585-A797-6071A620576E Tolin Mechanical Building Efficiency and Sustainabihty ~ - A Service Logic Company �Ero6vsma HER Q-05-2023-297571 May 19, 2023 1 of 5 BY AND BETWEEN Tolin Mechanical Systems Company, LLC City of Aspen 573 Adams Avenue, Suites A & B 427 Rio Grande Place Silverthorne, Colorado 80498 Aspen, CO 81611 (Hereinafter referred to as "Tolin") (Hereinafter referred to as "Customer") PROJECT LOCATION: 320 E HYMAN AVE., ASPEN, CO 81611 PROJECT DESCRIPTION: WHEELER OPERA HOUSE BOILER REPLACEMENT We are pleased to offer our proposal to replace the existing heating boilers at the Wheeler Opera House. The existing boilers are reaching their expected useful life and are in need of replacement. Included in this proposal is replacement of the three (3) existing boilers and boiler pumps. OUR PROPOSAL INCLUDES THE FOLLOWING: 1. Drain, disconnect, and dispose of existing boilers and boiler pumps offsite. a. Retain water/glycol solution for reuse. 2. Provide and install three (3) new Lochinvar (M/N: FTX1000N) heating boilers, including: a. Set new boilers in same location as existing. b. Connect boilers to existing supply and return piping i. Isolation valves to be reused. ii. Install new Caleffi Discal Air/Dirt/Magnetic separators in each boiler's return line. c. Install new Lochinvar variable boiler pumps, including: i. Connect to existing electrical service. d. Connect boilers to gas piping. e. Connect boilers to existing electrical service. f. Connect to existing control circuit. g. Connect to existing flue and combustion air. h. Install new condensate drains from boilers to floor drain. New condensate neutralizers. i. Start up, test for proper operation, and place into service. L Includes factory startup. 3. New pipe insulation. 4. Mechanical Permit. S. Provide one (1) year warranty on the new equipment, materials and installation craftsmanship. OUR PROPOSAL EXCLUDES THE FOLLOWING: 1. Providing labor after our normal business hours 7:30 a.m. to 4:30 p.m. Monday through Friday. 2. Providing equipment, materials and labor for work not detailed in this project's scope of work, DocuSign Envelope ID: 876CCOOA-5FO5-4585-A797-607lA620576E Tolin Mechanical A Service Logic Company CU�STh'STf1R f Q-05-2023-297571 May 19, 2023 2 of 5 including: • Tax Exempt. • Permit fees to be waived by City of Aspen. • Existing building or code deficiencies uncovered during work. • Repairs or work to other mechanical equipment. • Integrating to controls system or work to controls system. To be completed by others. • Work to flue piping or combustion air piping outside of boiler room. • Insulation for new work only. • Engineering Services. ■ TAB Scope. • Cutting, patching, or painting any walls, ceilings, or floors. ■ Work not outlined in this scope. • Port -a -potty rental, proposal assumes access to facilities on site. • Proposal assumes ability to store equipment, materials, and tools onsite. • Asbestos testing or abatement. • Fire or life safety scope or work. OUR PRICE FOR THIS SCOPE OF WORK IS...................................................................................... $197,967.00 "This Agreement is the property of Tolin and is provided for the Customer's use only. Tolin guarantees the price stated in this Agreement for thirty (30) days from the proposal date." Tolin Mechanical Systems Company, LLC Sawyer Bluhm Silverthorne Branch Proiect Sales Engineer Title May 19 2023 Date City of Aspen DocuSlgned by: Signature or PO# Sara G. Ott Print Name and Title 7/13/2023 1 6:59:45 AM PDT Date DocuSign Envelope ID: 876CCOOA-5FO5-4585-A797-6071A620576E Tolin MechanicaI r1 eiudn nca t_�lin,:�nr; ,�i,c' �us[ainabi'�ity A Service Logic Company TERMS AND CONDITIONS TOLIN MECHANICAL SYSTEMS COMPANY, LLC 1. Applicability. These terms and conditions (these "Terms") are the only terms which govern the sale of the goods ("Goods") and services ("Services") by Tolin Mechanical Systems Company, LLC ("Tolin") to 1 ("Customer"). The accompanying [estimate/confirmation of sale/invoice] (the "Sales Confirmation") and these Terms (collectively, this "Agreement") comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings. These Terms prevail over any of Customer's general terms and conditions of purchase regardless whether or when Customer has submitted its purchase order or such terms. Fulfillment of Customer's order does not constitute acceptance of any of Customer's terms and conditions and does not serve to modify or amend these Terms. In the event of a conflict between these Terms and the Sales Confirmation, these Terms shall control and prevail. 2. Deliven of Goods. Tolin shall deliver the Goods to the location described in the Sales Confirmation within the time described in the Sales Confirmation. Delivery of the Goods shall be made FOB origin. Customer releases Tolin for any delays, loss or damage to the Goods in transit. Title to the Goods passes to Customer upon payment for the Goods in full. Customer shall inspect the Goods immediately upon their delivery. Customer shall be deemed to have accepted the Goods unless it notifies Tolin in writing of any nonconforming Goods within 1 day after delivery. Customer shall furnish Tolin written evidence of the nonconforming Goods or other documentation as required by Tolin. If Customer timely notifies Tolin of any nonconforming Goods, Tolin shall, in Tolin's sole discretion (as Customer's sole and exclusive remedy), (a) replace such nonconforming Goods with conforming Goods, or (b) credit or refund the price for such nonconforming Goods. 3. Performance of Services. Tolin shall use reasonable efforts to meet any performance dates to render the Services specified in the Sales Confirmation, and such dates shall be estimates only. With respect to the Services, Customer shall (a) cooperate with Tolin in all matters relating to the Services and provide access to Customer's premises (and such office accommodation and other facilities as may reasonably be requested by Tolin) for the purposes of performing the Services; (b) respond promptly to any Tolin request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Tolin to perform Services in accordance with the requirements of this Agreement; and (c) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start. 4. Price. Customer shall purchase the Goods and Services from Tolin for the prices stated in the Sales Conformation or (if not stated therein) Tolin's published price list; provided, however, the prices stated in the Sales Confirmation or Tolin's published price list are estimates and are subject to change (without notice) to the prices in effect at the time of delivery or performance. All prices are exclusive of all sales, use and other similar taxes and charges, which shall be paid by Customer. 5. Payment Terms. Customer shall pay to Tolin an advance of not less than 25% of the total estimated price of the Goods and Services to be furnished pursuant to the Sales Confirmation, which advance shall be applied to Tolin's final invoice. In addition, Customer agrees to pay progress payments to Tolin (no more frequently than monthly) for the price of the Goods and Services furnished by Tolin to Customer during the period covered by Tolin's invoice. Customer shall pay all undisputed amounts on each of Tolin's invoices within 10 days of the delivery by Tolin to Customer of Tolin's invoice. Where required under applicable law, Customer may retain up to 5% of the amount of each invoice (except for Tolin's final invoice) to secure the payment of those suppliers and subcontractors who provided materials and services to Tolin in the performance of the Sales Confirmation. Subject to applicable law, Customer shall disburse any retained amounts to Tolin within 10 days of the delivery by Tolin to Customer of Tolin's final invoice. Customer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the maximum rate allowed by law, calculated daily and compounded monthly. Customer shall reimburse Tolin for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees. Customer shall not withhold payment of any amounts due and payable to Tolin by reason of any set-off of any claim or dispute with Tolin, whether relating to Tolin's breach, bankruptcy or otherwise. DocuSign Envelope ID: 876CCOOA-5FO5-4585-A797-607lA620576E Tolin Mechanical �,ustainabiiiT.'V yyl �F --ill, A Service Logic Company 6. Limited Warranty. Tolin warrants that the Goods will be free from defects in materials and workmanship under normal application, use, installation, operation and service for a period of 1 year from the date the Goods are shipped. Tolin does not warrant (and hereby disclaims any warranty relating to) the quality of any Goods manufactured by third parties. Customer's exclusive remedy for defects in Goods manufactured by third parties shall be against Tolin's suppliers or the manufacturers of the Goods. To the extent transferrable, Tolin agrees to assign all manufacturers' written warranties covering the Goods to Customer upon Customer's final payment for the Goods. Tolin warrants to Customer that it shall perform the Services in a workmanlike manner (meaning a manner deemed proficient and safe by those with the knowledge, training and experience to judge such Services). This workmanship warranty will terminate one (1) year from the date Services are performed. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION, THE GOODS AND SERVICES ARE FURNISHED BY TOLIN ON AN "AS IS, WHERE IS" BASIS, AND TOLIN MAKES NO WARRANTY, AND EACH OF TOLIN AND CUSTOMER HEREBY DISCLAIMS, WAIVES AND RELEASES ANY WARRANTY, WITH RESPECT TO THE GOODS OR SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. Tolin shall not be liable for a breach of warranty unless Customer delivers written notice of the breach to Tolin within the applicable warranty period. Customer shall not operate any Goods or equipment on which Tolin furnishes Services until project completion, as certified by Tolin. Tolin shall not be liable for damage to Goods or Customer's equipment, or for breach of warranty, if Customer: (x) misuses, alters or repairs such Goods or equipment without the prior written consent of Tolin; or (y) uses such Goods or equipment after discovering a defect. Subject to the limitations herein, with respect to any defective Goods or Services for which Customer's notice of the defect has been timely delivered to Tolin, Tolin shall, in its sole discretion, either: (i) repair, replace or reperform the defective Goods or Services or (ii) credit or refund the price of such defective Goods or Services; provided that, if Tolin so requests, Customer shall, at Tolin's expense, return such Goods to Tolin. THE REMEDIES SET FORTH IN THIS SECTION SHALL BE THE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY AND TOLIN'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN THIS SECTION. 7. Limitation of Liability. CUSTOMER WAIVES, RELEASES AND DISCLAIMS ANY CLAIMS AGAINST TOLIN FOR ANY CONSEQUENTIAL, PUNITIVE, EXEMPLARY, SPECIAL OR INDIRECT DAMAGES (INCLUDING WITHOUT LIMITATION LOST SALES, USE, INCOME, PROFIT, REVENUE OR OPPORTUNITY). IN NO EVENT SHALL TOLIN'S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO TOLIN BY CUSTOMER FOR THE GOODS AND SERVICES SOLD HEREUNDER IN THE IMMEDIATELY PRECEDING ONE (1) YEAR PERIOD. 8. Indemnification. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER SHALL INDEMNIFY. DEFEND, RELEASE, AND HOLD HARMLESS TOLIN. ITS AFFILIATES, AND ITS AND THEIR RESPECTIVE AGENTS, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES FROM AND AGAINST ALL CLAIMS, DAMAGES, LOSSES AND EXPENSES (INCLUDING BUT NOT LIMITED TO ATTORNEY'S FEES] RELATING DIRECTLY OR INDIRECTLY TO THE GOODS OR SERVICES, REGARDLESS OF WHETHER SUCH CLAIMS ARE OCCASIONED BY OR RESULTING FROM THE STRICT LIABILITY OR NEGLIGENCE OF ANY INDEMNIFIED PERSON, IN WHOLE OR IN PART, WHETHER SOLE, JOINT, CONCURRENT, ACTIVE OR PASSIVE. if any law limits the extent to which indemnification may be provided to an indemnified person that is negligent, solely ne li ent or otherwise at fault and such law its applicable to this Agreement, then this Agreement shall automatically be amended to provide that the indemnification provided hereunder shall extend only to the maximum extent permitted by such law. X Insurance. Each of Tolin and Customer shall, at its own expense, maintain and carry insurance (with minimum limits of $500,000 per occurrence) including commercial general liability (including product liability and liability covering independent contractors). Customer shall carry all risk property insurance to the full value of the Goods DocuSign Envelope ID: 876CCOOA-5FO5-4585-A797-607lA620576E Tolin Mechanical ['Uildinn Ctficiencx mrd Sustaincb lity -0 - 0 il A Service Logic Company and name Tolin as an additional insured. Customer shall require its insurers to waive all rights of subrogation against Tolin's insurers and Tolin. COA has own insurances however will not add additional insurers. S B 6/19/2023 10. Termination. Tolin may terminate this Agreement with immediate effect upon written notice to Customer if (a) Customer fails to pay any amount when due, has not performed or complied with any of these Terms, or becomes insolvent; or (b) any project to which the Goods and Services relates is paused for a period of 30 days through no act or fault of Tolin. Customer shall notify Tolin in writing of any alleged breach of this Agreement. Tolin shall have 10 days after receipt of notice of the alleged breach to cure the alleged breach. Upon termination of this Agreement, Tolin may immediately recover from Customer payment for all work to date and for any proven loss, including reasonable profit and damages. If this Agreement is terminated, the parties shall remain liable for all obligations and liabilities incurred prior to termination, and the terms and conditions relating to indemnities, interest, confidentiality, taxes, disclaimer of consequential damages and any limitation of liability, shall survive termination for the applicable statute of limitations period. Confidential lnformation. All information of Tolin disclosed by Tolin to Customer in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied by Customer unless authorized in advance by Tolin in writing. Upon Tolin's request, Customer shall promptly return all documents and other materials received from Tolin. This Section does not apply to information that is: (a) in the public domain; (b) known to Customer at the time of disclosure; or (c) rightfully obtained by Customer on a non -confidential �} basis from a third party. City of Aspen is subject to Colorado Open Records Law, so we cannot accept this paragraph. S B 12. Delays. Tolin shall be excused from complying with the terms and conditions of this Agreement (and 6/19/2023 shall not be liable to Customer for any failure or delay in Tolin's performance) when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Tolin including, without limitation: (a) any act or omission of Customer or its agents, contractors (other than Tolin), consultants, representatives or employees, or (b) any acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion, or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, pandemic, lockouts, strikes or other labor disputes (whether or not relating to either parry's workforce), telecommunication breakdown, power outage, restraints or delays affecting carriers, or inability or delay in obtaining supplies of adequate or suitable materials (including the Goods). 13. Relationship. This Agreement shall not be construed as creating any agency, partnership, franchise, business opportunity, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties. Neither party shall have authority to contract for or bind the other party. No relationship of exclusivity shall be construed from this Agreement. 14. Miscellaneous. This Agreement is governed by the laws of the State in which the Goods are delivered and/or the Services are performed. EACH PARTY HEREBY VOLUNTARILY AND IRREVOCABLY WAIVES, DISCLAIMS AND RELEASES ANY RIGHT TO TRIAL BY JURY IN ANY LITIGATION, ACTION OR OTHER PROCEEDING BROUGHT IN CONNECTION WITH THIS AGREEMENT. This Agreement is binding on (lie parties and their respective successors and assigns. These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party. [End of Terms and Conditions]