HomeMy WebLinkAboutEC16-044 - Original - M.A. Mortenson Company - ShoWare Center De-Humidifier Settlement - 02/01/2016 Records emenlz �
KENT
' Document
s,.
WABHINOTON �tt„ w�tlf� .
ik atrY
'tt 1 Viz, ?f4a,.s,a�,7 _
' `
CONTRACT COVER SHEET
This is to be completed by the Contract Manager prior to submission
to City Clerks Office. All portions are to be completed.
If you have questions, please contact City Clerk's Office.
Vendor Name M.A. Mortenson
Vendor Number:
JD Edwards Number
Contract Number: E0(19 _ OLN
This is assigned by City Clerk's Office
Project Name: ShoWare Center De-Humidifier Settlement
I
Description: ❑ Interlocal Agreement ❑ Change Order Amendment ® Contract
❑ Other: Settlement Agreement
Contract Effective Date 111 Iu Termination Date: Lido€ 10
Contract Renewal Notice (Days—`
Number of days required notice for termination or renewal or amendment
Contract Manager: Ben Wolters Department: Econ & Comm. Dev.
Contract Amount: $15,000
I
Approval Authority: (CIRCLE ONE) Department Director Mayor City Council
Detail: (i.e. address, location, parcel number, tax id, etc.):
On-call inspection coverage
This is a law suit settlement agreement for de-humidifiers at ShoWare Center
As of; 08/27/14
SETTLEMENT AGREEMENT (the "Aareement")
The City of Kent ("City"), M. A. Mortenson Company ("Mortenson"), Hermanson
Company LLP ("Hermanson"), Applied Systems NW, Inc. ("Applied Systems"), and
Munters Corporation —Air Treatment ("Munters") (all of collectively the `Parties" or
individually a 'Party"). in respect to certain alleged defects in construction and design of
the Kent Events Center, now known as the ShoWare Events Center(the 'Project'),
agree as follows:
WHEREAS, the City entered into a contract with Mortenson for Mortenson to
provide construction services for the Project;
WHEREAS, Mortenson entered into a subcontract agreement with Hermanson
for Hermanson to provide certain labor, materials, work and services related to the
Project;
WHEREAS, Hermanson entered into an agreement with Applied Systems for
Applied Systems to provide certain labor, materials, work and services related to the
Project;
WHEREAS, Applied Systems entered into an agreement with Munters for
Munters to provide certain labor, materials, work and services related to the Project;
WHEREAS, the City alleges some or all portions of the dehumidifiers and related
systems at the Project are or may be defective in construction or design (referred to as
the "Dehumidifier Claim");
WHEREAS, the Parties desire to resolve any and all claims or allegations arising
from or related to the Dehumidifier Claim. To accomplish full resolution regarding the
Dehumidifier Claim, Mortenson, Hermanson and Applied System agree to make a one-
time payment to the City in the amounts listed below and Munters agrees to provide the
extended warranty as listed below to the City on the rotors of the dehumidifier- and
related-systems.
NOW THEREFORE, in consideration of the mutual covenants and conditions herein,
and for other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged by each Party, the Parties for themselves, their successors,
assigns and legal representatives agree as follows:
1. The foregoing recitals are hereby incorporated herein by reference in their
entirety.
2. The Parties hereto acknowledge and agree that this Agreement fully and finally
resolves, satisfies and releases all claims between and among them airing out of the
Dehumidifier Claim.
Payment and Release of Mortenson Hermanson and Applied Systems
3. In consideration of and in full and final satisfaction of all differences of opinions,
claims, issues and disputes in regards to the Dehumidifier Claim:
a. Mortenson agrees to pay the City five thousand dollars ($5,000.00) within
fifteen (15) days of the full execution of this Agreement.
1
b. Hermanson agrees to pay the City five thousand dollars ($5,000.00)
within fifteen (15) days of the full execution of this Agreement.
c. Applied Systems agrees to pay the City five thousand dollars ($5,000.00)
within fifteen (15) days of the full execution of this Agreement.
4. Upon receipt of the settlement amount described in Paragraph 3, the City, on
behalf of itself and its council, constituents, administrators, successors, predecessors,
assigns, agents, attorneys, insurers and representatives, hereby irrevocably and
unconditionally remises, generally releases and forever discharges Mortenson,
Hermanson and Applied Systems and their members, officers, directors, shareholders,
subsidiaries, affiliates, successors, predecessors, assigns, agents, underwriters,
attorneys, sureties, insurers, and representatives for, of and from any and all demands,
sums of money, actions, rights, causes of action, obligations, claims, expenses,
damages,judgments, losses and/or liabilities of any kind or nature whatsoever, that
arise out of or are in any manner whatsoever, directly or indirectly (whether past, present
or in the future), connected with or related to the Dehumidifier Claim.
5. The City acknowledges that, by agreeing to make payment referenced in
Paragraph 3, Mortenson, Hermanson and Applied Systems are seeking full and final
resolution of the Dehumidifier Claim and any future claims related to the Dehumidifier
Claim.
Warranty by Munters
6. In consideration of, and in full and final satisfaction of, all differences of opinions,
claims, issues and disputes in regards to the Dehumidifier Claim, Munters agrees to
provide directly to the City a three-year parts and labor warranty, commencing on the
date of this Agreement, for any repair work necessary on the rotors of the dehumidifiers
and related systems at the Project. If repair work is necessary, the City and Munters will
coordinate directly for completion of necessary warranty work.
7. In consideration for the extended warranty from Munters, the City, on behalf of
itself and its council, constituents, administrators, successors, predecessors, assigns,
agents, attorneys, insurers and representatives, hereby irrevocably and unconditionally
remises, generally releases and forever discharges Munters and its members, officers,
directors, shareholders, subsidiaries, affiliates, successors, predecessors, assigns,
agents, underwriters, attorneys, sureties, insurers, and representatives for, of and from
any and all demands, sums of money, actions, rights, causes of action, obligations,
claims, expenses, damages, judgments, losses and/or liabilities of any kind or nature
whatsoever, that arise out of or are in any manner whatsoever, directly or indirectly
(whether past, present or in the future), connected with or related to the Dehumidifier
Claim; except, this waiver shall in no manner apply to extended warranty provided
directly to the City by Munters in this Paragraph.
8. Munters warrants that any necessary warranty work on the rotors of the
—dehumidifieTsand-related systems at Project shall-be performed as detailed in the
extended warranty attached hereto as Exhibit A. Munters agrees, for such warranty
work;
a. Materials and equipment furnished will be of good quality and new unless
the Contract Documents require or permit otherwise;
b. Warranty work will be free from defects.
2
I
General Provisions
9. The laws of the state of Washington shall govern the validity, construction,
interpretation, and effect of this Agreement, regardless of any applicable law regarding
the conflict of laws or the interpretation of contracts.
10. This Agreement shall be binding upon and inure to the benefit of the parties and
their respective heirs, predecessors, parents, successors, assigns, affiliates, employees,
agents and any corporation or entity to which or with which any party to this Agreement
may merge or consolidate.
11. This Agreement is executed without reliance on any promise, warranty or
representation by any Party or Party representative other than those expressly contained
herein, and each Party has carefully read this Agreement and has had the opportunity to
consult with its respective counsel regarding its meaning and consequences. Each
signatory to this Agreement has acted of his or her own free will. This Agreement may
be amended only by an agreement in writing. Each Party has cooperated in the drafting
and preparation of this Agreement.
12. This Agreement may be executed in multiple counterparts, each of which shall be
deemed an original with signatures exchanged by mail or by email in .pdf format. It shall
not be necessary in making proof of this Agreement or its terms to produce or account
for more than one of such counterparts.
13. Each Party represents and warrants to the other Parties that it is the real party in
interest to enter into this Agreement, that it is authorized to do so, and that it has not
sold, executed, transferred, conveyed or contractually disposed of any claim, demand,
action, cause of action, obligation, damage and/or liability herein released. This
Agreement shall bind and inure to the benefit and be enforceable by the Parties hereto
and each of their respective heirs, executors, administrators, successors, assigns,
agents and legal representatives.
14. Any provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this Agreement or
affecting the validity or enforceability of such provision in other jurisdictions.
15. Disputes between the Parties regarding this Agreement shall be resolved by
arbitration arbitrated by the American Arbitration Association pursuant to the
Construction Industry Arbitration Rules with a hearing venue of Seattle, Washington.
16. This Agreement is a compromise of disputed claims. The terms of this
Agreement shall not be construed as an admission of fault or liability by any Party with
all Parties expressly denying such responsibility or liability.
17. This Agreement is a product of mutual negotiation and no presumption shall be
applied in interpretation of this Agreement that any terms shall be more strictly construed
against any Party by reason of any rule of construction that a document is to be more
strictly construed against the Party who prepared or drafted this Agreement through
counsel or otherwise.
Agreed:
3
The City of Kent Hermanagn Company LLP
A
B By
Name :s
)(: Name
[Print] C 1 [Print
Title
Title c
M. A. Mortenson Company Applied Systems NW. Inc.
By &� , -L� .;,2,
NameM Ovlvu) Name�Iitutw�-5
Pr tj [Print]
Title Title
Munters Corporation-Air Treatment
13
Name
[Print]
Title
4
f
Exhibit A: Munters Corporation-Air Treatment Extended Warranty
LABOR and MATERIAL WARRANTY
36 MONTH PLAN
DD1, Model A40-SSOOCG Serial #A08GA4027791
DD2, Model A40-SSNNCG Serial#A08GA4027793
ShoWare Center,Kent WA
Effective to 11/5/2018
Scope: Warranty includes Parts and Labor for the Hubs and Supports
What is included: Written narrative report,detailing findings,recommendations,and repairs performed
Examine site routine maintenance records for Reducer lubrication,seal clearance
inspection and adjustment
Desiccant Wheel Parts and Labor warranty:Includes hub,bearings,and supports
24/7 Technical support including weekends and holidays
What is excluded: Technician Labor and Expenses for Non-Warranty Service Calls
Routine Maintenance as delineated in the Installation,Operation,and Maintenance
Manual.
Equipment Repairs or Modifications from Original Design
Holiday or Weekend work
Pre-Requisite: Startup Services performed by Munters li
Munters Labor and Material Labor Warranty Service Plan extends the Munters Basic Product
Limited Warranty(below)to provide for parts and labor services by a Munters technician to
perform corrective action on equipment deemed by Munters to be under warranty. The warranty
period shall be for thirty-six(36)months from the date that such Product becomes operational.
See Munters Product Basic Limited Warranty for additional Terms and Conditions.
MUNTERS PRODUCT BASIC LIMITED WARRANTY
The Warranty applies only to Products that are properly installed,maintained and operated under normal conditions with competent
supervision in accordance with the instruction manual,good maintenance practice and Munters recommendations,if any,made by
Munters in writing. Without limiting the foregoing,the Warranty shall be void,and Munters shall have no liability for,in the case of
any Products that:(a)have been disassembled,repaired or tampered with in any way,except when such work has been done with
Munters'prior written approval,(b)have been damaged by use or operation in excess of any maximum pressures,temperatures or
rated capacities as specified by Munters in writing,(c)have been damaged by corrosion,or have degradation in performance as a
result of dirt,dust,or other foreign material,or(d)are considered consumable.
Munters'obligation,and Purchaser's sole and exclusive remedy,under the Warranty is limited to repair or replacement at Munters'
facility,at Munters'option,of any Products(or parts thereof)determined to be defective in workmanship or material during the
applicable warranty period. The Warranty is a parts only warranty,and except as may be provided in"Additional Terms and
Conditions—Service Plans,"if these Additional Terms are applicable,the Purchaser's remedy under the Warranty does not include
services or labor. 'the warranty period shall not be extended by the performance of warranty repairs or replacements.
The Warranty shall be voided if payment is not made in accordance with the terms set forth in Munters'standard terms and conditions
of sale.
THIS WARRANTY IS EXPRESSLY IN LIEU OF ALL OTHER WARRANT'ES EXPRESSED OR IMPLIED,AT LAW OR IN
EQUITY,WITH RESPECT TO THE PRODUCTS,ANY RELATED SERVICES OR LABOR OR THEIR CHARACTERISTICS,
QUALITY OR PERFORMANCE,INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR
5
i
FITNESS FOR A PARTICULAR PURPOSE,OR NON-INFRINGEMENT OF ANY MTELLECTIJAL PROPERTY RIGHTS Op
THIRD PARTIES,AND ANY AND ALL SUCH WARRANTIES AND REPRESENTATIONS ARE HEREBY DISCLAIMED. NO
AGENT,REPRESENTATIVE,OR DEALER,OR ANY OTHER PERSON OR ENTITY,IS AUTHORIZED TO GIVE.ON
MUNTERS'BEHALF ANY REPRESENTATION OR WARRANTY AS TO PRODUCT(S)OR TO ASSUME FOR MUNTERS
ANY LIABILITY PERTINENT TO PRODUCT(S)UNDER ANY CIRCIJMSTANCES,
i
Munters Responsibility:
• Munters Corporation shall maintain a Service Department to bundle all warranty claims,and shall make every provision to
resolve warranty claims quickly.
Munters Corporation shall ship parts or products(equipment)repaired or replaced under this warranty to the customer F.O.B.
Munters Corporation factory. Method of shipment shall be standard ground transportation at Munters Corporation expense.
Munters Corporation shall not bear the cost of expedited delivery.
• Munters Corporation's obligation under this warranty is limited to repair or replacement,at its sole discretion,of warranted
products which Munters Corporation's examination shall disclose to it's satisfaction to be defective.
Customer Responsibility:
• To adhere to the requirements set forth in Munters Corporation Terms of Sale,including timely and full payment.
• Purchase factory supplied Startup Services and PrimaCaire Warranty Plan as an acknowledged line item on the original purchase
order to Munters for the equipment to extend Munters Product Warranty as noted in scope above.
• The customer must contact Munters Corporation Service Department at the Products'manufacturing location,
o provide model,serial number and part number of product or part and a description of failure
o to obtain warranty service or written authorization to repair or replace defective products;and
o to obtain written authorization to return products believed to be defective
• Issue a Purchase Order for product shipment in advance of warranty determination for I)new parts needed;2)expedited
delivery charges;3)returned goods charges;4)labor;and 5)warranty claim processing fees if requested
• Defective products must be returned within 30 days to receive credit.
• The customer shall pay all charges and costs associated with expedited delivery and all labor and equipment charges(such as
crane,lifting devices,rigging,etc.)for removal or replacement of defective components. If the customer requires expedited
delivery,the customer must inform Munlers Corporation Service Department of the requirement.
• To keep this warranty in full effect,the customer must:
o maintain the product according to Munters Corporation Products'written instructions
• Munters Corporation shall in no way be prevented from providing warranty service using its employees or contractors.
Exclusions;
This warranty does not cover:
• Physical damage resulting from accident,or improper transportation,handling,or installation;
• Damage or operational problems caused by corrosion,or excessive dirt,dust or other foreign material;
• Damage or operational problems caused by lack of proper cue or maintenance,negligence,or improper application or use of the
equipment
• Installation or connection of power supply and signals,external ductwork,piping or charging by others
• Components supplied or installed by the customer or others including but not limited to valves,filters,driers,accumulators and ',
program based controllers;
• Any Munters Corporation Products which:
o has been repaired or altered in any manner without express written permission from Munters Corporation Service
Department;or
o has been operated in any manner contrary to Munters Corporation Products'written instructions.
o have outstanding invoice for non-warranty,work that remain unpaid beyond 90 days after invoice.
In such cases that Munters Corporation is prevented from providing service through its employees or contractors,the Customer
accepts full responsibility for any warranty claim and Munters Corporation shall be absolved of any and all responsibility or liability
for the repair.
Support:
Technical troubleshooting and product support are available via phone on a twenty-four hour basis. Please contact the original
equipment manufacturing facility or our Munters websile.
i
6
UPGRADING TO AN EXPANDED OR EXTENDED WARRANTY PLAN
INCLUDING PERFORMANCE INSPECTION:
Munters offers expanded or extended Warranty Plans. Such plans could increase the labor coverage and/or extend the
timeframe of the warranty. Such an extension could include:
.➢ Equipment repairs or modifications fiom original design
➢ Extended duration of coverage
i
UPGRADING TO INCLUDE A MAINTENANCE PLAN:
Munters also offers a full Maintenance Plan to our customers for maximization of uptime and highest performance of
equipment.This plan extends the time spent on site and increases the frequency of filter changes,belt and drive
inspections,and seal maintenance.The Maintenance Plan covers:
➢ Preventive and routine maintenance
➢ Minor equipment repairs or modifications
➢ Installation of spare or replacement parts
For further information,please email one of our Service Representatives at:
ServiceAirTUSAgMunters.com
7