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HomeMy WebLinkAbout25-180 - Amendment A - Electrical Services Northwest, LLC - Electrical Installation: Joseph Foster Memorial Park RestroomAmendment #1 Between the City of Tukwila and Electrical Services Northwest LLC That portion of Contract No. 25-180 between the City of Tukwila and Electrical Services Northwest LLC is hereby amended as follows: Exhibit A: Exhibit A is hereby replaced by the version attached to this amendment. All other provisions of the contract shall remain in full force and effect. Dated this 24th day of June, 2025. CITY OF TUKWILA Signed by: S 4u-" Kris Kelly, Deputy Parks & Recreation Director ATTEST/AUTHENTICATED: Signed by: �9�34 Jenni er Marsha�ll, De...puty City Clerk APPROVED AS TO FORM: Signed by: d— aaAA Office o icy torney CONTRACTOR: --DocuSigned by: By. �dV161& jt,VM EECFJ Printed Name:cl i nton Teem Title: owner/operations Manager CA Reviewed May 2020 Page 1 of 1 ESN Terms and Conditions A proposal or quotation issued by Electrical Services Northwest named in the proposal ("E.S.N.") provided to you (the "Proposal") is an offer to sell services to you and/or procure equipment, parts, components, and software ("Procured Items") for you as specified in the Proposal ("Services") pursuant to these terms (the "Terms"). By accepting the Proposal, instructing E.S.N. to begin work or by executing the Proposal, you are agreeing to be bound by these Terms. The Proposal and Terms together form the entire agreement between you and E.S.N. (the "Agreement"). E.S.N. reserves the right to increase fees via Change Order should the terms or conditions of the service or the costs associated with the procurement of equipment, parts, components, and software increase during the term of the engagement. Your Obligations and Changes You agree to pay E.S.N. fees, charges, and reimbursable expenses for the Services and applicable taxes thereon (the "Charges") within 30 days after receipt of the invoice by you unless otherwise specified in the Proposal. Invoices are deemed received by you within 24 hours of being sent by E.S.N. If the invoice is not paid by the due date, such charges may accrue late interest up to 1.5% of the outstanding balance per month, or the maximum permitted by law, whichever is lower, from the date such payment is due until the date paid. A surcharge of 2.5% of the invoice amount will apply to all invoices paid by credit card. You will be billed weekly for Services performed during the prior week for Services provided on a time and materials basis, as well as fixed price jobs without milestones; otherwise, you will be billed upon the completion of applicable milestones as set out in the Proposal. In addition, E.S.N. may suspend performance of the Services without liability to you until payment of all overdue amounts is made in full, including applicable interest and may require a retainerfor Services to be rendered in future. All expenses incurred by E.S.N. relating to the collection of past due amounts shall be charged to your account. You will provide E.S.N. with access to the job site and all information about hazards including Material Safety Data Sheets as well as timely decisions upon request and all documentation and information reasonably required by E.S.N. for its provision of the Services. E.S.N. is entitled to rely upon the accuracy of that documentation and information and you assume the risk of any inaccuracy unless validation of that documentation and information is specifically part of the Services. You may not require E.S.N. or its employees as a condition to site access or otherwise, to further agree or to enter into any agreement which waives, releases, indemnifies, or otherwise limits or expands any right or obligations whatsoever hereunder. You and E.S.N. shall take all such reasonable steps to protect the confidentiality of information provided by one to the other and neither party shall disclose same or use it for purposes other than for the project under which the Services are rendered. If, during the term of this Agreement, circumstances or conditions that were not originally known to E.S.N. become known, to the extent that they affect the Services, Prices, Charges, schedule, allocation of risks or other material terms of this Agreement, E.S.N. reserves the right to renegotiate appropriate portions of this Agreement. E.S.N. shall notify you in writing ofthe changed conditions necessitating renegotiation, and you and E.S.N. shall promptly and in good faith enter into renegotiation of this Agreement to address them and it is specifically agreed that the re -negotiation may result in a change in the scope of the Services, the Charges, the schedule, or other material terms of this Agreement and that a change order premium may be applied by E.S.N.. Standard of Care and Warranty E.S.N. Services shall reflect that degree of care and skill ordinarily exercised by members of the same profession currently practicing under similar circumstances at the same time and in the same or similar locality (the "Standard of Care"). Upon prompt, written notice to E.S.N., but in any event within one (1) year of completion of the Services, that the Services or part of the Services fail to meet that Standard of Care, E.S.N. shall, at its option, re -perform the portion of the Services not meeting the Standard of Care to remedy the deficiency, or pay you the amount of the Charges paid by you for the Services not meeting the Standard of Care. All Procured Items carry only the specific manufacturer's warranty related to it or extended to E.S.N. by its supplier and E.S.N. provides no separate warranty including but not limited to any warranties relating to title and non -infringement of third -party intellectual property rights. E.S.N. will assign or flow through to you all warranties provided by third parties with respect to the Services. You will be responsible for all E.S.N. costs associated with your cancellation of any order of Procured Items including shipping and cancellation or re -stocking charges. E.S.N. bears no liability for any delays in shipping or delivery of Procured Items. The risk of loss of Procured Items passes to you at the same time as E.S.N. supplier's terms transfer that risk to E.S.N. Except for the Standard of Care, E.S.N. disclaims all warranty, guarantee or condition, statutory or otherwise, express, or implied, written, or oral, including but not limited to warranties of merchantability and fitness for a particular purpose. Nothing in the Agreement creates a fiduciary duty owed by one party to the other. The Limitation of Liability provision below limits E.S.N. liability to you. Limitation of Liability In recognition of the relative risks and rewards for you and E.S.N. in connection with the project under which E.S.N. provides the Services, you and E.S.N. agree that notwithstanding any other provision in the Agreement, the common law, applicable statutes, or any other legal theory, and to the fullest extent permitted by law, THE TOTAL AGGREGATE LIABILITY OF E.S.N. AND, TO THE EXTENT LEGALLY LIABLE IN ANY MANNER, THE LIABILITY OF ITS OFFICERS, DIRECTORS, PARTNERS, EMPLOYEES, SHAREHOLDERS, OWNERS AND SUBCONSULTANTS, FOR ANY AND ALL CLAIMS, LOSSES, COSTS, DAMAGES OF ANY NATURE WHATSOEVER OR CLAIMS OR EXPENSES FROM ANY CAUSE OR CAUSES RESULTING FROM OR IN ANY WAY RELATED TO THE PROJECT, THE SERVICES OR THE AGREEMENT, INCLUDING LEGAL FEES AND COSTS AND EXPERT -WITNESS FEES AND COSTS, IS LIMITED to, at E.S.N. option, either the re -performance by Shermco of the Services not meeting the Standard of Care to remedy the deficiency or the payment by E.S.N. to you for actual damages incurred by you directly up to an amount equal to the Charges paid byyou for the Services not meeting the Standard of Care. This limitation limits any and all of E.S.N. liability or cause of action however alleged or arising including any indemnity obligations, and regardless of the success or effectiveness of other remedies, relating in any fashion to any work and any Services, whether originally performed or re -performed, any revisions to the work or the services rendered hereunder and any misrepresentations made during the course of rendering those services whether by E.S.N. employees, sub -contractors, consultants, or agents, and includes without limitation, those caused by E.S.N. negligence or gross negligence, a fundamental breach of contract or breach of a fundamental term or any other breach of duty whatsoever unless otherwise prohibited by law. Notwithstanding any other provision of this Agreement, and to the fullest extent permitted by law, neither party shall ever be liable to the other for any special, indirect, incidental, punitive, or consequential damages arising out of the project, the provision of the Services or the Agreement regardless of whether such losses were foreseeable at the time of the making of the Agreement. This mutual waiver of damages includes, but is not limited to loss of use, business interruption or loss of revenue, savings, reputation, data, computer functionality, use of equipment, earnings, income or profits, that either party may have incurred from any cause of action including negligence, strict liability, breach of contract and breach of warranty of any kind even if such party has been advised of the possibility of such potential loss or damage in advance. E.S.N. shall not be responsible for the acts or omissions of you, your employees, contractors, subcontractors, agents, or their employees, nor liable for any loss, injury, or damage to persons or property caused by their negligence or fault. Ownership and Use of Documents, Patents and Trademarks All documents, including drawings, plans, models, designs, specifications, reports, photographs, computer software, surveys, calculations, computer print-outs, electronic files, and other data used in connection with the Services and which were prepared by, or on behalf of, E.S.N. (the "Documents") and all patents, trademarks, copyrights, industrial or other intellectual property rights resulting from the Services or from concepts, products, or processes that are developed or first reduced to practice by E.S.N., or others on behalf of E.S.N., in performing the Services (the "Intellectual Property") are E.S.N. property whether the work is executed or not and together, are E.S.N. "Instruments of Service". E.S.N. retains all common law, statutory and other reserved rights thereto. You may only use the Instruments of Service as permitted under these Terms if you have paid the Charges. Thereafter, you are granted a non- exclusive license to use the Intellectual Property inherent in the Instruments of Service for the life of, and only for, the project under which E.S.N. provided the Services and retain and use a copy of the Documents all solely for purposes of its maintenance and repair. The terms of use and license of any of E.S.N. intellectual property licensed to you under a separate license agreement are not governed by this Agreement. You will not, directly, or indirectly, disclose to third parties, use, misuse or modify the Instruments of Service except as specifically authorized in this Agreement or explicitly agreed to in writing by E.S.N. You will, to the fullest extent permitted by law, indemnify and hold harmless E.S.N. from any and all claims by any party (including claims of infringement of third - party intellectual property rights), damages, liabilities or costs, including reasonable legal fees and expenses on a solicitor and own client basis, arising, directly or indirectly in any manner whatsoever, out of any such unauthorized disclosure, use, misuse or modification of the Instruments of Service. You agree that E.S.N. is not responsible for or liable to you or anyone else for the consequences, financial, legal, or otherwise, of your disclosure, use, misuse, or modification of the Instruments of Service. Remedies on Breach Nothing in the Agreement shall operate to limit a party's legal remedies for breach ofthe other party's obligations hereunderwhich shall, always, be cumulative. You agree that any material breach of this Agreement will cause irreparable harm to E.S.N., that such harm will be difficult if not impossible to ascertain, and that Shermco shall be entitled to equitable relief, including injunction, against any actual or threatened breach hereof, without bond and without liability should such relief be denied, modified, or vacated. Neither the right to obtain such relief nor the obtaining of such relief shall be exclusive of or preclude E.S.N. from any other remedy. Force Majeure E.S.N. shall not be responsible or liable for any loss, damage, detention or delay arising directly or indirectly from any cause or event beyond E.S.N. reasonable control including war, invasion, insurrection, riot, the order of any civil or military authority, or by fire, flood, weather or other acts of the elements or acts of God or other emergencies, pandemics or other public health emergencies, breakdown, lockouts, strikes or labor disputes; the lack of availability of equipment, supplies or products (but not to the extent that any such lack of availability of any of the foregoing results from E.S.N. failure to have exercised reasonable diligence); failure of any Government agency to act in a timely manner, or, failure of performance by you or your contractors or consultants; or without limiting the foregoing, any other cause beyond E.S.N. reasonable control. General Nothing in the Agreement shall create a contractual relationship with, or a cause of action in favor of, any third party. The Services are being performed solely for your benefit and no other party shall have any claim against E.S.N. because of the Agreement or the performance or non- performance of the Services. E.S.N. may provide Services through resources of its subsidiaries or affiliates and may subcontract performance of the Services without your consent but remains liable, therefore. Netitfre���rty�shradd; �dermngm3�he�te�m��of�tfre���cga��e�mer�ts�nd �fe��� pe�oed .e�(�) �ersm�tber�of�;�mwFtd�ut�t�he� prf��wrmt�ten��on �6nt�ef� tie ®tf� r a ty, offer e feymend 3 0 ctove solicit arvy e loyees-or pers�oen���ef�tl�em�odf�or�per3�y�e�ha�re��been��6ng���n �er���socaot�ed wfti�t�e^�ervmc�;�: This Agreement supersedes all prior negotiations, discussions, agreements, or representations whether written or oral. No other terms, conditions, warranties, or understandings whether express or implied, form a part of this Agreement. No amendment or waiver of the Agreement is binding unless agreed to in writing by both parties, a waiver of one provision does not operate to waive any other provision and no waivers of a provision of the Agreement shall act as a subsequent waiver of the same provision. If any provision of the Agreement is invalid or unenforceable, the remaining provisions are valid and binding. E.S.N. may, at any time, at its sole option, assign this Agreement wholly or in part. Termination and Survival Either party may terminate this Agreement upon material breach of this Agreement by the other party upon five (5) days' written notice to the breaching party or for convenience upon giving the other party not less than fifteen (15) calendar days' written notice and, in the event of termination of this Agreement by either party, you shall, within fifteen (15) calendar days of receipt of E.S.N. final invoice, pay E.S.N. for all Charges up to and including the date of termination. If a party is purporting to terminate for material breach, the breaching party shall have seven (7) days to resolve the breach in which case, the Agreement shall not be terminated. Obligations related to confidentiality, payment for Services and indemnification survive the termination of this Agreement. Client: city of Tukwila �grrerYby- By:VtS Kris Ke�w EB73764AE3545C... 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