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Home My WebLink AboutCAG2020-228 - Other - Terra Dynamics, Inc. - West Fenwick Park Warranty Agreement - 03/02/2022Contract Other 3/4/22 ___ _____ CONTRACTOR WARRANTY AGREEMENT FOR INSTALLED KOMPAN EQUIPMENT This Contractor Warranty Agreement for Installed KOMPAN Equipment ("Warranty Agreement") is between Terra Dynamics, Inc., a Washington corporation ("Terra Dynamics"), and the City of Kent ("City"), a Washington municipal corporation. BACKGROUND A. In July 2020, the City contracted with Terra Dynamics to renovate parts of the existing West Fenwick Park ("Project"). This Project included construction of a pre -fabricated picnic shelter; upgrades to the playground, the field, and irrigation; installation of a KOMPAN Multi Use Games Area ("MUGA") with synthetic turf; repairs to path lighting; and Americans with Disabilities Act (ADA) upgrades. B. The Project was completed in December of 2021. However, the manufacturer's warranty was voided on components that that have been field modified for the MUGA. The field -modified components are identified in Exhibit A. C. To ensure that the City receives the benefit of its bargain, Terra Dynamics has agreed to assume the responsibility for the manufacturer's warranties that were voided. These are identified in Exhibit B. However, should the City determine that repair and replacement of the field -modified components will not suffice to ensure a safe, durable MUGA, then the City may require Terra Dynamics to replace these components. D. This Warranty Agreement is not intended to alter or otherwise change any other warranty Terra Dynamics may be required to provide under the separate Project agreement. THE PARTIES THEREFORE AGREE AS FOLLOWS: AGREEMENT 1. Purpose. The purpose of this Warranty Agreement is for Terra Dynamics to assume and fulfill the manufacturer's warranty responsibilities for the KOMPAN's products depicted in Exhibit A and as described in Exhibit B, except as otherwise provided in Section 2, guaranteeing that the City will be placed in the same position as if the MUGA had been installed in accordance with the manufacturer's specifications and the manufacturer's warranty still valid on all components, including field -modified components. Contractor Warranty Agreement Page 1 2. Warranty. 2.1. Terra Dynamics hereby expressly warrants all KOMPAN's products installed in the Project that have been modified for the time periods set forth in Exhibit B. Except that those products covered by the "LIFETIME Warranty" in Exhibit B will instead be warranted for a period of twenty (20) years. The warranty period applies from the date of installation of the MUGA. Terra Dynamics shall fulfill the terms of the KOMPAN warranty as set forth in this Section 2, and will not be excused from performance for any claims that the products were installed incorrectly. 2.2. Pursuant to this Warranty Agreement, Terra Dynamics, at its sole cost, shall repair or replace any modified defective materials in the Project, to the satisfaction of the City. The City will not be responsible for any costs related to the repair or replacement of modified defective materials or the failure of materials covered by this Warranty Agreement. Terra Dynamics shall coordinate and pay for all parts, shipping costs, and labor necessary for any repair or replacement of any modified or non -factory components. 2.3. Terra Dynamics shall begin to repair or replace materials pursuant to this Warranty Agreement within seven (7) calendar days of its receipt of notice from the City. If Terra Dynamics fails to complete the repair or replacement within a reasonable timeframe as determined by the City, the City, at its sole discretion, may perform the work itself or through another contractor. Terra Dynamics shall then reimburse the City for any costs it incurs to accomplish these repairs or replacement of materials. 2.4. Any repair or replacement of materials or any other work completed pursuant to this Warranty Agreement shall be executed and completed in accordance with the manufacturer's specifications where possible. If the City, in its sole discretion, determines that it is not possible for the repair or replacement to be executed and completed in accordance with the manufacturer's specifications, then the finished product shall adhere to the following criteria as documented in Project close out procedures: o All end caps on posts and panels shall be flush o All gates shall be fully functioning, including latching and swinging o All bolts shall be installed flush and stable o All field welds and surfaces shall match factory finish; and o Tabs shall not protrude beyond the plane of the fence into the field. Any repair or replacement of materials pursuant to this Section 2.4 shall also be free from defects and performed in a good and workmanlike manner. Contractor Warranty Agreement Page 2 2.5. This Warranty Agreement does not cover any damage caused by accident, improper care, normal wear and tear, surface corrosion on metal parts, discolored surfaces, and other cosmetic issues or failures due to misuse or vandalism. Natural changes in wood over time are considered cosmetic issues and are also not covered under this Warranty Agreement. 2.6. This Warranty Agreement will not alter or otherwise change any other warranty Terra Dynamics may be required to provide under the separate Project agreement. 3. Citv's Reservation of Rights. If the City, in its sole discretion, determines the repair and replacement of materials under this Warranty Agreement will not result in a safe, durable MUGA, then Terra Dynamics shall rebuild the modified MUGA components at its own expense and upon a timeline set forth by the City. 4. Indemnification. Terra Dynamics shall indemnify, defend, and hold the City, its officers, officials, boards, commissions, agents, and employees, harmless from any action or claim for injury, damage, loss, liability, cost or expense, including court and appeal costs and reasonable attorneys' fees or reasonable expenses, arising from any casualty or accident to person or property, including, without limitation, damages in any way arising out of, or by reason of, any construction, excavation, operation, maintenance, reconstruction, or any other act done under this Warranty Agreement, by or for Terra Dynamics, its agents, or its employees, or by reason of any neglect or omission of Terra Dynamics. Terra Dynamics shall consult and cooperate with the City while conducting its defense of the City under this Warranty Agreement. Terra Dynamics shall not be obligated to indemnify the City to the extent of the City's negligence or willful misconduct. Contractor Warranty Agreement Page 3 S. Notice. Any notice or information required or permitted to be given to the parties under this Warranty Agreement may be sent to the following addresses unless otherwise specified: CITY: Parks, Recreation & Community Service City of Kent ATTN: Terry Jungman; Parks Planning 220 Fourth Avenue South Kent, WA 98032 EMAIL: Tjungman@kentwa.gov TERRA DYNAMICS: Vern Orr P.O. BOX 2479 Auburn WA 98071 Email: Vern @terradynamics 6. Non -waiver of Breach. The failure of the City to insist upon strict performance of any covenants and agreements contained in this Warranty Agreement, or to exercise any option conferred by this Warranty Agreement, will not be construed to be a waiver or relinquishment of those covenants, agreements, or options, and the same will remain in full force and effect. 7. Governing Law and Venue. This Warranty Agreement is governed by and construed in accordance with the laws of the State of Washington. Venue for any dispute related to this Warranty Agreement will be the King County Superior Court. B. Modification. This Warranty Agreement may only be amended by written consent of the City. The City's decision to approve a request for a written amendment will be at its sole discretion. 9. Attorney Fee Recovery. Terra Dynamics shall be responsible for any attorney fees, litigation costs, and court fees the City incurs enforcing this Warranty Agreement. 10. Assignment. This Warranty Agreement may not be assigned without the written consent of the other party. 11. Entire Agreement. This Warranty Agreement, together with any exhibits, represents the entire agreement between Terra Dynamics and the City regarding the subject of this Warranty Agreement, and incorporates all prior understandings and agreements between them. Contractor Warranty Agreement Page 4 12. Counterparts. This Warranty Agreement may be executed by authorized counterparts and by electronically transmitted signatures and be valid as if each named representative has signed the original document. IN WITNESS, the parties below execute this Contract, which shall become effective on the last date entered below. All acts consistent with the authority of this Contract and prior to its effective date are ratified and affirmed, and the terms of the Contract will be deemed to have applied. TERRA DYNAMICS, INC. CITY OF KENT 2�2215:47 By. Ve��eO28, PST) By: 1 V Print Name: Vern Orr Print Name: Dana Ralph Its: General Manager Its: Mayor Date Signed: Feb 28,2022 Date Signed: 03/02/2022 Attest: et4� 6wk Kent City Clerk Approved as to Form: ity Attorney's Office Contractor Warranty Agreement Page 5 X Represents panels shortened between 1/2" to 1-1/2" to fit post spacing 9'-11" 6'-9" [205cm] G I EXHIBIT A 3'-3" [100cm] EAST / WEST VIEWS 126'-10" [3866cm] 63'-0" _ [1920cm] 5' 0 5 to NORTH / SOUTH VIEWS s/is"- '-o" WEST FENWICK PARK Elevation Views, N,S,E,W FAS370964 Custom MUGA NOT FOR CONSTRUCTION uoTes: s 20' EoupR ."iuo. numu. - I = oEP= 2'-4" [70cm] N0. REVISION ISSUE DATE REVIEW BY: REPS NAME: Hlghwire PLAN NORTH DATE: 02/25/21 DRAWN BY: ei SHEET: L2.0 KO1M`PANN. X Represents panels shortened between 1/2" to 1-1/2" to fit post spacing 9'-11" 6'-9" [205cm] G I EXHIBIT A 3'-3" [100cm] EAST / WEST VIEWS 126'-10" [3866cm] 63'-0" _ [1920cm] 5' 0 s to NORTH / SOUTH VIEWS s/is"- '-o" WEST FENWICK PARK Elevation Views, N,S,E,W FAS370964 Custom MUGA NOT FOR CONSTRUCTION uoTes: s 20' EoupR ."iuo. numu. - IFs oEP= 2'-4" [70cm] N0. REVISION ISSUE DATE REVIEW BY: REPS NAME: Hlghwire PLAN NORTH DATE: 02/25/21 DRAWN BY: ei SHEET: L2.0 KO1M`PANN. • KOMPAN a Let's play KOMPAN, Inc. 605 West Howard Lane Suite 101 Austin, TX 78753 Phone: 1 -800-426-9788 www.kompan.us May 6, 2021 Highwire, Inc. 2106 North 281" Street Tacoma, WA 98403 Ref: West Fenwick Park Freegame Arena Warranty To Whom it May Concern: Thank you for your inquiry regarding the warranty of your FAS-CUSTOM ID: 370964 Freegame Arena. Based on the information we have been provided, the structure was not installed to specifications. The installer performed modifications to the structure that were not reviewed or approved by Kompan prior to the work occurring. Kompan will continue to warranty the parts of the structure that were not modified and remain in factory condition. However, Kompan will not provide warranty coverage for the following areas: • Functionality of moving parts (gates & goals) that may be affected by the incorrect layout of posts. • Rusting or deterioration on the posts near the areas of modification. • Any structural failure to the new connections installed by others that may occur due to normal usage of the play area (ball bounce or physical activity). • The rail caps that will not fully insert into the posts due to the modifications. • Any unseen issues caused as a result to modifications in field. Kompan stands behind the superior quality of our products and industry leading warranties. We will continue to provide coverage for parts of the structure that were unaffected by infield modifications. https://www.kompan.us/warranty-global-menu Best Regards, 1 Jared Mathusek, Director of Installation KOMPAN, Inc. jarema@kompan.com Attached: Layout Drawing EXHIBIT B EXHIBIT A General KOMPAN Warranty 2021 — US+CA LIFETIME* Warranty • Hot dip galvanized structural parts, Steel poles, Cross beams, Floor frames, and Top brackets. • Stainless steel hardware • EcoCoreTm and other .sigh -density polyethylene (HDPE) panels 15 Years Warranty • High pressure laminate (HPL) floors & panels • Aluminum Parts 10 Years Warranty • Painted top layer of galvanized and aluminum metal posts & parts. • Other galvanized metal parts • Stainless -steel Slides • Corocord Hercules rope • Handles, seats and other solid plastic parts • Plastic slides and other hollow plastic parts • Transparent PE panels e.g. GIANTS • Non -painted aluminum & metal parts • Wood -plastic composite (WPC) • Robinia, Siberian larch, pine and other wood types • Ropes & Net constructions 5 Years Warranty • Resin coated plywood plates • Springs & ball bearing assemblies • Graphic print on transparent PE panels e.g. GIANTS • Concrete elements • Galaxy Connection balls 2 Years Warranty • Movable plastic & metal parts • Rubber membranes material • Screens and electronic components • Sunshades & sail solutions EXHIBIT B 1. Warranty coverage This warranty applies to KOMPAN's products for the time periods described for each product type above and with the limitations described in this warranty. The warranty period applies from the date of purchase by the first customer. This warranty covers only defects in materials. KOMPAN's liability under this warranty is limited to repair or replacement of defective products, without charge, at KOMPAN's discretion. Defective electronic components will be delivered and changed by a KOMPAN ICON Professional installer free of charge 2. Proper installation and maintenance The warranty only applies if KOMPAN's products have been installed according to the instructions provided by KOMPAN and maintained correctly according to the KOMPAN Maintenance Manual. The warranty for ICON electrical components is dependent on those products being installed by an ICON trained and approved installer. 3. Warranty exclusions This warranty does not cover any damage caused by accident, improper care, negligence, normal wear and tear, surface corrosion on metal parts, discolored surfaces and other cosmetic issues or failures due to misuse or vandalism. Natural changes in wood over time are considered cosmetic issues and are not covered. 4. Near water installation Products installed in direct contact with chlorinated water or saltwater (Wateraarks), or products installed within 650 feet from the shore are not covered by the KOMPAN warranty for any defects caused by corrosion. Products installed in coastal areas, within 200 meters of the shore, will only be covered by the warranty for half the period of the standard product warranty in relation to defects caused by corrosion. KOMPAN's lifetime warranty if applicable is limited to a 10-year warranty in relation to such products. 5. Third party supplied products & services. KOMPAN provides non-KOMPAN branded products and installation services performed by certified third party suppliers. This general KOMPAN warranty does not apply to such non-KOMPAN branded products and installation services, which may carry their own warranties. KOMPAN will pass on information about such warranties where possible. 6. Freight & Warehousing Global transport and logistics arranged by Kompan appointed forwarder. Products/items are not to be stored outside waiting for installation and must be always kept dry. * KOMPAN's LIFETIME warranty is in effect for the lifetime of the product until the product is uninstalled and/or taken out of use. In addition, KOMPAN's general terms & delivery conditions apply and supplement this warranty. EXHIBIT B signature: A--aZ �- Email: rlashley@kentwa.gov Signature: Brian Leven hagen 23, 202216:33 PST) Email: bjlevenhagen@kentwa.gov E-TRANSMITTAL: Contractor Warranty Agreement for West Fenwick Park MUGA Final Audit Report 2022-02-28 Created: 2022-02-17 By: Lynn Osborn (losborn@kentwa.gov) Status: Signed Transaction ID: CBJCHBCAABAAkzNU4f7sdrMB8Jgesj7jZme6gX9dFQad "E-TRANSMITTAL: Contractor Warranty Agreement for West F enwick Park MUGA" History Document created by Lynn Osborn (losborn@kentwa.gov) 2022-02-17 - 8:25:08 PM GMT- IP address: 146.129.252.126 Document emailed to Ronald Lashley (rlashley@kentwa.gov) for signature 2022-02-17 - 8:27:01 PM GMT Email viewed by Ronald Lashley (rlashley@kentwa.gov) 2022-02-22 - 8:03:20 PM GMT- IP address: 146.129.252.126 =� Document e-signed by Ronald Lashley (rlashley@kentwa.gov) Signature Date: 2022-02-22 - 8:08:00 PM GMT - Time Source: server- IP address: 146.129.252.126 Document emailed to Brian Levenhagen (bjlevenhagen@kentwa.gov) for signature 2022-02-22 - 8:08:02 PM GMT Email viewed by Brian Levenhagen (bjlevenhagen@kentwa.gov) 2022-02-24 - 0:32:06 AM GMT- IP address: 146.129.252.126 Document e-signed by Brian Levenhagen (bjlevenhagen@kentwa.gov) Signature Date: 2022-02-24 - 0:33:16 AM GMT - Time Source: server- IP address: 146.129.252.126 Document emailed to Vern Orr (vern@terradynamics.com) for signature 2022-02-24 - 0:33:18 AM GMT f Email viewed by Vern Orr (vern@terradynamics.com) 2022-02-28 - 11:44:58 PM GMT- IP address: 13.52.61.199 a Document e-signed by Vern Orr (vern@terradynamics.com) Signature Date: 2022-02-28 - 11:47:41 PM GMT - Time Source: server- IP address: 96.85.222.49 a Adobe Sign Agreement completed. 2022-02-28 - 11:47:41 PM GMT 8 Adobe Sign