Document Moscow_doc_790f513266

AGREEMENT FOR PROFESSIONAL SERVICES RELATED TO HAMILTON-LOWE AQUATICS CENTER SLIDE RESURFACE BETWEEN CITY OF MOSCOW, IDAHO AND WIDTEW ATER WEST INDUSTRIES, LTD. THIS AGREEMENT FOR PROFESSIONAL SERVICES RELATED TO HAMILTON-LOWE AQUATICS CENTER SLIDE RESURFACE, made and entered into this ~ day of ,L/p. ~(l(sf , 2013, by and between City of Moscow, Idaho, a municipal corporation of the State of Taaho, 206 East Third Street, Moscow, Idaho, 83843 (hereinafter "CITY"), and Whitewater West Industries, Ltd., 6700 McMillan Way, Richmond, BC, Canada, V6W 117 (hereinafter "CONTRACTOR"). WITNESSETH: WHEREAS, CITY intends to contract for the resurface and repair work of both water slides located at the Hamilton-Lowe Aquatics Center (Green PS/32A T Combo Slide and Blue Open 54/54AT Combo Slide) [one fifty four inch (54") Aquatube water slide approximately two hundred twenty six feet (226') long (hereinafter "Slide and the second slide, a thirty two inch (32") Aquatube, approximately one hundred seventy two feet (172') long (hereinafter "Slide and also the color coating of the exterior ·of slides with high gloss UV resistant coating, cleaning, polishing and sealing inside of tube sections of both Slides (hereinafter referred to as "PROJECT") which PROJECT is more specifically described hereinbelow; and NOW, THEREFORE, it is agreed, for and in consideration of the mutual covenants and promises between the parties hereto, as follows: SECTION I: PROJECT Description/Scope of Work: PROJECT work shall include the repair and cleaning of two Combo Slides located at the City-owned Hamilton-Lowe Aquatics Center, resurfacing with Silk Gel, inside of open flume slide area and inside tube section of slide to first joint, color coat exterior of slide with high gloss UV resistant coating, clean polish and seal inside of tube section with high gloss protective sealant and repairing chips and cracks and top up caulk joints. SECTION II: Compensation: A. CONTRACTOR shall perform all work necessary to complete the PROJECT for an amount not to exceed One Hundred Thirty Three Thousand Five Hundred Forty Eight Dollars ($133,548). AGREEMENT FOR PROFESSIONAL SERVICES WHITEWATER WEST INDUSTRIES, LTD. PAGE I 0F9 ---PAGE BREAK--- B. Other Considerations Regarding Fees and Costs. CONTRACTOR shall be paid Fifty Percent (Sixty Six Thousand, Seven Hundred Seventy Four Dollars [$66,774]) of the not to exceed PROJECT cost upon completion of Fifty Percent (50%) of the PROJECT work. The determinatism of percent of PROJECT work completed shall be made by CITY. CONTRACTOR shall be paid the remaining fees owing to CONTRACTOR, up to Sixty Six Thousand, Seven Hundred Seventy Four Dollars ($66,774) within Thirty (30) days following completion of the PROJECT work and acceptance of the PROJECT work by CITY. Shipping terms: FOB location of Job Site. Import Duty and Taxes are not included and are to be added to invoices unless Tax Exempt Certificate is provided by CITY. SECTION III: CONTRACTOR's Responsibilities: CONTRACTOR shall complete the entire work on the PROJECT. Such work shall be conducted in a good and workmanlike manner which meets or exceeds industry standards. SECTION IV: CITY's Responsibilities: CITY, at no extra charge to CONTRACTOR, shall: 1. Provide CONTRACTOR with its color selections with enough advance notice for CONTRACTOR to procure the necessary materials and equipment; 2. Perform submissions to building authorities; 3. Obtain necessary building permits; 4. Provide inspections as required; 5. Provide continuous access for CONTRACTOR during the term of this Agreement; 6. Provide pool, slide and play structure water drainage as required; 7. Allow for two days travel where a specific number of days is provided rn CONTRACTOR'S bid; 8. Provide water pressure adequate for PROJECT; 9. Provide two hundred forty by sixty (240 x 60) amp and one hundred twenty by thirty ( 120 x 30) amp electrical supplies during PROJECT; 10. Provide access to PROJECT site for all equipment necessary trucks, cranes, forklifts, manlifts, scaffold, etc.); 11. Provide convenient and adequate area for equipment and for storage of equipment; 12. Provide protection for equipment against paint over-spray, debris, etc.; 13. Provide adequate security to protect materials and equipment; AGREEMENT FOR PROFESSIONAL SERVICES WHITEWATER WEST INDUSTRIES, LTD. PAGE20F9 ---PAGE BREAK--- 14. Dispose of all waste materials; and 15. Allow not less than seventy two (72) hours at least sixty five degrees Fahrenheit (65°) for curing. SECTIONV: PROJECT Schedule: CONTRACTOR shall complete the PROJECT on or before October 10, 2013. In the event of . unavoidable delays due to weather, shipping delays or other circumstances beyond CONTRACTOR's control, CONTRACTOR shall be granted an extension equal to the time elapsed during such delay. SECTION VI: Independent CONTRACTOR: The contracting parties warrant by their signature that no employer/employee relationship is established between CONTRACTOR and CITY by the terms of this Agreement. It is understood by the parties hereto that CONTRACTOR is an independent contractor and as such neither it nor its employees, if any, are employees of CITY for purposes of tax, retirement system, social security (FICA) withholding. SECTION VII: Termination: A. Termination of Agreement. This Agreement may be terminated by CONTRACTOR upon thirty (30) days' written notice, should CITY fail to substantially perform in accordance with its terms through no fault of CONTRACTOR. CITY may terminate this Agreement upon thirty (30) days' written notice without cause and without further liability to CONTRACTOR except as designated by this section. In the event of termination, CONTRACTOR shall be paid for services performed to termination date, including direct expense and including a percentage of the fixed fee based upon the work completed. B. Termination of PROJECT. If any portion of PROJECT covered by this Agreement shall be suspended, abated, abandoned, or terminated, CITY shall pay CONTRACTOR for the services rendered to the date of such suspended, abated, abandoned, or terminated work; the payment to be based, insofar as possible, on the amounts established in this Agreement or, where the Agreement cannot be applied, the payment shall be based upon a reasonable estimate as mutually agreed upon between the two parties as to the percentage of the work completed. AGREEMENT FOR PROFESSIONAL SERVICES WHITEWATER WEST INDUSTRIES, LTD. PAGE30F9 ---PAGE BREAK--- SECTION VIII: Insurance: A. If, at any time, a surety on any such bond is declared as bankrupt or loses its right to do business in the State of Idaho or is removed from the list of surety companies accepted on Federal bonds, the CONTRACTOR shall, within ten (10) days after notice from CITY to do so, substitute an acceptable bond (or bonds) in such form and sum signed by such other surety or sureties as may be satisfactory to CITY. The expense of such replacement bonds shall be borne by the CONTRACTOR. No further payments by CITY pursuant to this Agreement shall be deemed due nor shall be made until the new surety or sureties shall have furnished an acceptable bond to CITY. B. 1. The CONTRACTOR shall not commence work until he/she has obtained all insurance required under this section or until he/she has satisfied CITY in this respect; nor shall he/she allow any subcontractor to commence work until such subcontractor has also obtained such required insurance applicable to such subcontractor's work. The CONTRACTOR shall maintain such required insurance coverage throughout the term of this Agreement and will hold CITY harmless and shall indemnify CITY for any losses arising out of the CONTRACTOR's operations, including any contingent liability arising therefrom. The cost of such insurance shall be borne by the CONTRACTOR. The CONTRACTOR shall furnish copies of all insurance policies and/or certificates of insurance to CITY at the time of execution of this Agreement. Each policy shall include a provision to the effect that it shall not be subject to cancellation, or reduction in the amounts of its liabilities, or any other material change, until notice has been given in writing to CITY and the Parks and Facilities Manager not Jess than fifteen (15) days prior to such action. CONTRACTOR shall further cause CITY to be named as an additional insured on all applicable insurance policies. 2. The CONTRACTOR shall take out and maintain, during the term of this Agreement, statutory worker's compensation insurance for all employees who will work on this PROJECT, and if any work is subcontracted, the CONTRACTOR shall require the subcontractor similarly to provide such insurance for all of the subcontractor's employees unless they are included under the protection afforded by the CONTRACTOR. 3. The CONTRACTOR shall take out and maintain during the term of this Agreement comprehensive public and general liability insurance. The comprehensive public and general liability insurance shall have, at a minimum, a coverage limit of at least Five Hundred Thousand Dollars ($500,000) per occurrence, and One Million Dollars ($1,000,000) aggregate. Policies containing deductible clauses will not be acceptable. AGREEMENT FOR PROFESSIONAL SERVICES WHITEWATER WEST INDUSTRIES, LTD. PAGE40F9 ---PAGE BREAK--- SECTION IX: Slide Resurface Warranty: CONTRACTOR warrants to CITY that at the time the products were applied, the products are free from defects in material and workmanship in the course of application to the applied surfaces and that the coatings will not develop excessive fading, excessive chalking, excessive on-uniformity of color, and film integrity within the limits as defined below: Workmanship Warranty. CONTRACTOR warrants that its labor, materials and equipment ("Workmanship") supplied in connection with this Agreement will be free from defects (meaning, for the avoidance of doubt, any defect whatsoever which shall be reasonably apparent from a purely visual inspection of the refinished slide). The workmanship warranty ("Workmanship Warranty") covers peeling, cracking, blistering, and/or delamination, under conditions of normal use, which are the result of improper surface prep or application of the products by CONTRACTOR' s certified applicator. Product Warranty. CONTRACTOR warrants that the products, as applied, will be free from excessive color fade, excessive chalking and excessive non-uniformity, except for lhe below mentioned limits, definitions and exclusions (the "Product Warranty"). Definitions: Excessive Fading shall mean a change in color during the warranty period that exceeds eight Delta E units (Hunter Color Difference) if calculated from measurements on any spectrophotometer or colorimeter designed to adequately measure color by reflectance readings in accordance with ASTM D-2244-85, Section 6.3. Numerical units are defined as the numerical value equal to the square root of the sum of the squares Delta L, Delta a and Delta b measured on the exposed coated surfaces which have been cleaned in accordance with CONTRACTOR's cleaning and application instructions. Operating the water slide at water chemistry levels that are higher than the industry standard 3 PPM chlorine levels may accelerate color fading and is not covered under this warranty. Excessive Chalking means will not chalk in excess of a numerical rating of six during when measured in accordance with the standard procedures specified in ASTM D-4214, Method D659. Excessive Non-uniformity shall mean a non-uniform fading during the warranty period to the extent that adjacent panels have a color difference greater than the original limits of acceptable color expressed in the same system of color measurement described hereinabove. It is understood that fading or color changes may not be uniform if the surfaces are not equally exposed to the sun and elements. Film Integrity shall mean that the coating sha!l not delaminate or show signs of cracking, peeling or blistering discernible to the naked eye resulting from the natural elements in the atmosphere at the location where the water slide is located. AGREEMENT FOR PROFESSIONAL SERVICES WHITEWATER WEST INDUSTRIES, LTD. PAGE50F9 ---PAGE BREAK--- Warranty Period shall mean in the case of the Workmanship Warranty for a period of one year from the earlier of the date of acceptance of such Workmanship, or the first commercial use thereof. In the case of the product warranty, for a period of three years from the earlier of the date of acceptance of such refinishing application, or the first commercial use thereof. Limitations: This warranty shall not cover the following: 1. Gouges, gashes, deep cuts and scratches in the coating; 2. Damage from unsupervised, unapproved and inappropriate water park maintenance and repair procedures; 3. Acts of vandalism, damage or abuse; 4. Damage fromforce majeure; 5. Damage from cleaning the refinished area with solvent-based cleaners. 6. Damage from cleaning the refinished area with a high-pressure water power washer with a psi over Fifteen Hundred (1,500) and/or positioning the spray tip nozzle closer than Ten inches (10") from the surface; or 7. Damage from operating the water slide at water chemistry levels higher than the NSPI industry standard 3 PPM chlorine levels. Warranty Service. ("Warranty Service") shall consist of, at the CONTRACTOR's option, repair of the warrantable refinished area, at CONTRACTOR's cost. Warranty service may be obtained by providing CONTRACTOR with written notification of a defect within thirty (30) days of defect discovery and before the expiration of the warranty period. After Warranty Service, the warranty, with respect to a corrected problem will continue for the remaining unexpired warranty period or sixty (60) days, whichever is longer. CONTRACTOR reserves the right to inspect the application and perform an electronic inspection with a mil gauge for warranty verification purposes. CITY agrees to provide copies of the daily water chemistry and maintenance log reports to CONTRACTOR for the previous One Hundred ( 100) days in order to assess water chemistry levels and maintenance practices that may void the warranty. SECTIONX: Hold Harmless/Indemnification: In addition to other rights granted CITY by the Contract Documents, CONTRACTOR shall indemnify and save harmless the CITY, its officers and employees, from all suits, actions, or claims of any character brought because of any injuries or damages received or sustained by any person, persons, or property on account of the operations of CONTRACTOR or its subcontractors; or on account of or in consequence of any neglect in safeguarding the work; or through use of unacceptable materials in constructing the work; or because of any act or AGREEMENT FOR PROFESSIONAL SERVICES WHITEWATER WEST INDUSTRIES, LTD. PAGE 6 0F9 ---PAGE BREAK--- omission, neglect, or misconduct of CONTRACTOR or its subcontractors; or because of any claims or amounts recovered from any infringements of patent, trademark or copyright; or from any claims or amounts arising or recovered under the Workmen's Compensation Act or any other law, ordinance, order or decree. SECTION XI: Conflict of Interest: CONTRACTOR covenants that it presently has no interest and will not acquire any interest, direct or indirect, in the PROJECT which would conflict in any manner or degree with the performance of its services hereunder. CONTRACTOR further covenants that, in performing this Agreement, it wi11 employ no person who has any such interest. Should any conflict of interest arise during the performance of this Agreement, CONTRACTOR shall immediately disclose such conflict to the PROJECT Engineer/Engineer and City. SECTION XII: Entire Agreement, Modification And Assignability: This Agreement and the exhibits hereto contain the entire agreement between the parties, and no statements, promises, or inducements made by either party, or agents of either party are valid or binding unless contained herein. This Agreement may not be enlarged, modified or altered except upon written agreement signed by the parties hereto. CONTRACTOR may not subcontract or assign its rights (including the right to compensation) or duties arising hereunder other than as contemplated by this Agreement, without the prior written consent and express authorization of CITY. SECTION XIII: Adherence To Law Required: All applicable local, state and federal statutes and regulations are hereby made a part of this Agreement and shall be adhered to at all times. Violation of any of these statutes or regulations by CONTRACTOR shall be deemed material and shall subject CONTRACTOR to termination of this Agreement for cause. No pleas of misunderstanding or ignorance on the part of CONTRACTOR will in any way serve to modify the provisions of this requirement. CONTRACTOR and its surety shall indemnify and save harmless CITY and its employees, agents, engineers and representatives against any claim or liability arising from or based on the violation of any such laws, codes, ordinances, or regulations, whether by CONTRACTOR, CONTRACTOR's employees, or its subcontractors. AGREEMENT FOR PROFESSIONAL SERVICES WHITEWATER WEST INDUSTRIES, LTD. PAGE 7 0F9 ---PAGE BREAK--- SECTION XIV: Non-Discrimination: CONTRACTOR shall not discriminate against any employee or applicant for employment on the basis of race, color, religion, creed, political ideals, sex, sexual orientation, age, marital status, physical or mental handicap, or national origin. SECTION XV: Legal Fees: In the event either party incurs legal expenses to enforce the terms and conditions of this Agreement, the prevailing party is entitled to recover reasonable attorney's fees and other costs and expenses, whether the same are incurred with or without suit. SECTION XVI: Jurisdiction and Venue: This Agreement shall be construed in accordance with and shall be subject to the laws of the State of Idaho and that the venue of any such action shall be the Second Judicial District of the State of Idaho in and for Latah County. SECTION XVII: Special Warranty: CONTRACTOR warrants that nothing of monetary value has been given, promised or implied as remuneration or inducement to enter into this Agreement. CONTRACTOR further declares that no improper personal, political or social activities have been used or attempted in an effort to influence the outcome of the competition, discussion, or negotiation leading to the award of this Agreement. Any such activity by CONTRACTOR shall make this Agreement null and void. SECTION XVIII: Communications: Such communications as are required by this Agreement shall be satisfied by mailing or by personal delivery to the parties at the following address: Contractor: Scott Heke Whitewater West Industries, Ltd. 6700 McMillan Way Richmond, BC Canada, V6W IJ7 AGREEMENT FOR PROFESSIONAL SERVICES WHITEWATER WEST INDUSTRIES, LTD. City: City Engineer City of Moscow 206 East Third Street P 0 Box 9203 Moscow, Idaho 83843 PAGE80F9 ---PAGE BREAK--- SECTION XIX: Execution: IN WITNESS WHEREOF, said CONTRACTOR and CITY have caused this Agreement to be executed on the day and year first above written. CONTRACTOR cott Heke, VP After Sales & Service Dept. CITY City of Moscow, Idaho ATTEST l OJLU.AML S~el'~e Kttt~!:, City Clerk ~ & ~ LX.p~~ Approved As To Form: ~ Roderick Hall, City Attorney ACKNOWLEDGMENT PROVINCEOF ' City of _ ~ . _ ) ss: ) ) On this I'-day of fl o f IJ ff- , 2013, before me, the undersigned, a Notary in and for said State, personally appe'ked Scott Heke, known to me to be the person whose name is subscribed to the foregoing Agreement and acknowledged to me that he executed the same in his capacity as VP After Sales and Service Department and authorized representative of Whitewater West Industries, Ltd. AGREEMENT FOR PROFESSIONAL SERVICES WHITEWATER WEST INDUSTRIES, LTD. PAGE90F9 ---PAGE BREAK--- ~WHITEWATER I. ATTACHMENT 1 I. RESURFACE and REPACR SERVICES and TECHINIC!ANS WhiteWater will provide fully experienced and capable Service Technicians for I.he resurface & repair of your White Water equipment as defined herein. All resurface and repair work will be conducted in a prompt, professional, safe manner by our Service Technicians in accordance with the principles of quality workmanship 11nd to WhiteWater quality and safety standards. 11. SCOPE OF WORK DETAILS The resurface and repair provisions listed herein are estimates of work that can be completed within a set number of days or hours per task. Due to varying conditions and variations in access and volumes of material to be processed contracts will be defined as a set number of man days and set quantities to be processed. lll. MATERIALS SPECIFICATIONS A site specific list of materials, equipment and specifications will be provided once a complete service scope has been defined on site with the owner's representative and service technicians. IV. WHITEWATER AGREES TO: WhiteWater agrees to perform the following: 1) To supply all WhiteWater Service Technicians and labour completely capable in the resurface and repair of the equipment and to direct the work in accordance with commonly accepted principles of good workmanship. 2) To provide all transportation, lodging, meals and other living expenses for the Whitewater Technicians during the above work. 3) Provide all materials, and equipment required to complete the resurface and repair of the waterslides. 4) It is understood that must be applied lo the original gel coat rrom the factory, removal of any additional coatings layers are not included in this estimate. 5) Clean up any over-spray associated with this work. 6) To provide adequate protection for the equipment against paint over-spray, debris or misuse by workers or equipment during the completion of the project. 7) If for reasons beyond Whitewater's control service durntion extends past the specified period, the purchaser shall reimburse Whitewater at specified daily rate plus actual expenses. V. PURCHASEROBLIGATIONS: The purchaser agrees to provide at no extra charge to WhiteWater, the following: a) Purchaser agrees to provide Whitewater with its colour selections with enough advanced time for Whitewater to procure the necessary materials and equipment. b) To perfonn submissions to building authorities and obtain necessary building pennits. ATTACHMENT ---PAGE BREAK--- ~WHITEWATER~ c) To obtain all licenses, permits and bonding, if required and make all submissions as required by local authorities. d) To provide all 3nl party inspections as required by local authorities. e) It is understood that sufficient resources and access will be supplied to Whitewater to complete the work in the specified duration. t) To provide continuous access for workers for the duration of the term of the contract, and if technicians or work crews must make additional trips due to unforeseen delays then costs for return trips are reimbursable at actual cost. a) To provide pool, slide and play structure water drainage as required for continuous work flow. g) Where a specific number of days are provided for in a quotation. it is assumed to include for two days of travel so actual on-site days will be adjusted accordingly. h) To provide adequate water at a useable pressure of psi and within JOO ft of work area throughout the job site to enable crews to perform the work. i) To provide 240 x 60 amp and l20 x 30 amp electrical supplies at convenient locations within HIO ft of work area throughout the job site to enable crews to perfonn the work. j) To provide adequate access to the site for trucks, cranes, forklifts, manlifts, scaffold and other equipment necessary to perform the work. k) To provide adequate area for equipment and fOT storage of the equipment, convenient to the site and close to the final position of the equipment. 1) To provide adequate protection for the equipment against paint over-spray, debris, concrete spatter or misuse by other trades during the completion of the project. m) To provide adequate security to protect the construction materials, tool<; and equipment during the project. n) Dispose of all waste materials. o) Any other eJCpenses not specifically defined in WhiteWater's obligations. p) If as a result of the purchaser's delay White Water is unable to test the equipment when WhiteWater's scope of work is completed, the Purchaser will be liable for the eJCtra costs incurred to enable White Water to return to the site for testing. q) The owner agrees to grant additional time to the schedule at no cost to Whitewater for delays due to inclement weather, equipment malfunctions, shipping delays or other schedule impacts beyond the control of Whitewater or the owner. r) The owner agrees to allow adequate cure time for new coatings prior to use, not less than 72 hrs at 65 degrees fahrenheit or as otherwise recommended by Whitewater. s) Purchaser agrees to allow WhiteWater to utilize photos and statements to promote and market at its discretion. •In Addition and specific to this contract the aereed to: ATIACHMENT ---PAGE BREAK--- ~WHITEWATER 11. - Attachment 2 - General Terms and Conditions 1. Representations and Warranties 1.1. By Whitewater. Whitewater represents and warrants to the Purchaser, and covenants and agrees with the Purchaser as follows: 1.1.1. Whitewater is authorized to enter into this Agreement and has the capabilities to carry out its responsibilities described herein; 1.1.2. To the best of Whitewater's knowledge, Whitewater will be able to meet the time deadlines set forth in the Performance Schedule; and 1.1.3. Has or will arrange for Insurance as per Section 6. "Insurance". 1.2. By the Purchaser. The Purchaser hereby represents and warrants to Whitewater and covenants and agrees with Whitewater as follows: 1.2.1. The Purchaser is authorized to enter into this Agreement; 1.2.2. All building pennits and licenses have been obtained by the Purchaser to allow Whitewater to complete its obligations hereunder, including, without limitation, its obligation to install the Equipment at the Waterpark; 1.2.3. The Purcha~er knows of no other impediment, other than which is expressly set forth herein, which would delay, hinder of prevent Whitewater from carrying out its duties hereunder. SLIDE RESURFACE WARRANTY WhileWater warrants to Company that at the time lhe Products were applied, the Products are free from defects in material and workmanship in the course of application to the applied surfaces and that the coatings will not develop excessive lading. excessive chalking, excessive non-unilorrnity ot color, and film integrity within the limits as defined below: Worl!mansh!o Warranty: Whitewater warrants that its labor, materials and equipment ("Workmanship; supplied in connection with this Agreement will be free from defects (meaning, for the avoidance of doubt, any defect whatsoever which shall be reasonably apparent from a purely visual inspection of the refinished sllde. The warranty rworkmanship Warranty") covers peeling, cracking, blistering, and or delamlnatlon, under conditions of normal use, which are lhe result of Improper surface prep or application of the ProdUcts by Whitewater's Certined Applicator. Product Warran!y: WhiteWater warrants that the Products, as applied will be free from excessive color lade, excessive chalking and excessive non- uniforrnily, except for the below mentioned 6mils, definitions and exclusions ( the "Product Warranty"). Deflnl!lon11: Excessive Fading: shall mean a change In color during the Warranly Period that exceeds B Delta E units (Hunter Color Difference) if calculated from measurements on any spectrophotometer or colorimeter designed to adequately measure color by reflectance readings in accordance with ASTM D-2244-65, Section 6.3. Numerical units are defined as the numerical value equal to the square root of Iha sum of the squares Della L. Delta a and Delta b measured on the exposed coated surfaces which have been cleaned In accordance with WhiteWater West's cleaning and application instructions. Operating the water slide at water chemistry levels that are higher than the industry standard 3 PPM chlorine levels may accelerate color lading and is not covered under lhis warranty. Excessive Chalking: means will not chalk in excess of a numerical rating of 6 during when measured in accordance with the standard procedures specified In ASTM D-4214, Method 0659. Excessive Non-uniforrnilY: shall mean a non-uniform lading during the Warranly Period to the extent that adjacent panels have a color difference greeter lhan the original limits ol acceptable color expressed in the same system of color measurement described above. ft is understood that fading or color changes may not be uniform if the surfaces are not equally exposed lo the sun end elements. Film lntearitv: shall mean that the coating shall not delaminate or show signs of cracking, peeling or blistering discernible to the naked eye resulting from the natural elements in the atmosphere at the location where the water slide Is located. Warranty Period: shell mean in the case of the Workmanship Warranty for a period of one year from the earlier or the date of acceptance of such Workmanship, or the Hrst commercial use thereof. In the case of the Product Warranty !or a period of three years from Iha earlier of the date of acceptance of such refinishing application, or the first commercial use thereof. Limitations: ATTACHMENT ---PAGE BREAK--- Q't. WHITEWATER~ This Warranty shall not cover the following: 1. Gouges, gashes, deep cuts and scratches in the coating; 2. Damage from unsupervised, unapproved and inappropriate water park marntenance and repair procedures; 3. Acts of vandalism, damage or abuse; 4. Damage from farce majeure; 5. Damage from cleaning the refinished area with solvent-based cleaners. 6. Damage from cleaning the refinished area with a high-pressure water power washer with a psi over 1,500 end/or positioning the spray tip nozzle closer than 1 O" from the surface; or 7. Damage from operating the water slide at waler chemistry levels higher than the NSPI industry standard 3 PPM chlorine levels. Warranty Service: Warranty service ("Warranty Service") Warranty Service shall consist of, at the Whitewater's option, repair of the warrantable refinished area, al WhileWater's cost Warranty Service may be obtained by providing WhiteWater with written notification of a defect within thir1y (30) days of defect discovery and before the expiration ol the Warranty Period. Alter warranty service, the warranty wfth respect lo a corrected problem will continue for the remaining unexpired warranty period or sixty (60) days, whichever IS longer. WhiteWaler reserves the right to inspect the application and perform an electronic inspection with a mil gauge for warranty verilication purposes. The Company agrees to provide copies ol the daily water chemistry and maintenance leg reports to for the previous 100 days in order lo assess water chemistry levels and maintenance practices that may void the warranty. WITEWATER EXCLUDES AND IS NOT RESPONSIBLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF ANY BREACH OF THIS EXPRESSED WARRANTY AS IT RELATES TO OUR PRODUCTS THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED. INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WHITEWATER IS NOT LIABLE FOR ANY CONSEQUENTIAL DAMAGES OR INCIDENTAL DAMAGES ASSOCIATED WITH ANY BREACH OF ANY EXPRESS, WRITTEN, ORAL, OR IMPLIED WARRANTY ON THE PRODUCTS. WHITEWATER'S EXCLUSIVE REMEOY FOR ANY BREACH OF WARRANTY IS AS SET FORTH IN THIS WARRANTY. ANY ALTERCATION OF THE APPLIED PRODUCTS UNDERTAKEN WITHOUT PRIOR WRITTEN AUTHORIZATION FROM WHITEWATER WILL VOID THIS WARRANTY. 2. Covenants 2.1 Whitewater Covenants: Whitewater hereby covenants and agrees with the Purchaser that Whitewater will: 2.1.l Carry out the Work in a manner consistent with the standards; 2.1.2 Whitewater will use best efforts to meet the Performance Schedule; and 2.1.3 The Equipment will be suitable for its intended purpose. 2.2 Purchaser Covenants: The Purchaser hereby covenants and agrees with Whitewater that the Purchaser will: 2.2-1 Concurrently with the payment of the balance, pay all sales or use taxes payable in respect of the purchase and sale of the Equipment; 2.2.2 Acknowledge that the name "Whitewater" and all drawings. blue prints, electtonic files and architectural and engineering papers provided by Whitewater are the property of Whitewater and will not use or suffer the use of similar names or logos and will not use, copy, transmit or alter the above mentioned documents without the written consent of Whitewater; 2.2.3 Will obtain all consent.~. waivers, approvals, permits and licenses required for Whitewater to carry out the Work at the Waterpark; 2.2.4 Will provide Whitewater reasonable access to the Waterpark to facilitate Whitewater carrying out its duties hereunder; 2.2.5 Will review progress in the Work and provide approvals to Whitewater as expeditiously as possible; and 2.2.6 Will operate the Equipment in accordance with Whitewater's Manual. 3. Title and Security 3.1 Not applicable. ATIACHMENT ---PAGE BREAK--- ~WHITEWATER 4. Dekus 4.1 Ir the project is dela:ycd a~ u result of the Purchaser not mcetini scheduled ntilcstonc:s by a11y act or omission of lhe Purchaser, or by uny third party employed by !he Purchaser, then Lhc project schedule. will be al1ercd accordingly and Whitewater will be e11litled to reimbursement for c:ittm costs ll5 a iresult of such delo.y. Within four days of s.uch delay occuning Whitcw.ater musi submh, i11 writ.ing, 11 clmim outlining the oosts (or when: not pracli cal, the e,<;tima~ed C(lSlS) of s11ch delay or the delay wi II be deemed not to im:rca!iC Whitcwalcr's .cosL~ and they will not l>c .:miitlcd to C1ttra compensation. 4.2 ID! case of Purchaser's foilure to make in accordance with Secttion 4, Wtiiu:watcr lhe right to stop work u1:11il such i:imc as payments ~ mule. with adjusrmenls to the Project Schedule. Whitewater shall pro\"idc the Purchaser a minimum of scvi:n du~ notice md cure time Jbe(orc any work stoppage for non-payment. 4.3 If the project is delayed a resul1 of Whitewater not meeting scheduled mile:\tones then the project Sichedule will be altered accordingly. Th.: Purch:11scr ~ cntatlcd to reimbursement ror C.Xrtl'll coslS 1u a re.suit of such delay. Thcsi: ~.1.1m cQSIS ~ limittcl to d.~ct consU'lltlion expcn:;cs only. Such: cost;.<; as loot revenue nnid marketing costs an: not reimbursable. llic must submit 11 claim, in writing witllin rour days of such delay or lhe dcluy will be deemed not to increas.e the Purchaser's cos1s and the Purch:a.'ICr will not be entitled to nny 5. Terminalion 5. I 8 y Purchaser 5.1. I The Purcllaser ucknowlodgcs that once an order is placed with WhiatwaLcr, c11.pcnse is incurred by Whi1ewntc:r to pro\"idc the De.sign Service.~. and manufocturing the equipment and according!)!'. lhis Agreement may not be terminated l>y then: is a material default by Whitewater undenhis Agreement and in that ca'IC only in accordance with Section 5 .1.2. or5. 1.3. 5_ I .2 If Whitewater defaults in carrying out it.s duties under thi.s Agreement, the Purchaser will give WhitewatCJ' notice or the: default i11 whiich C3$e Whitewater will have ten (10) da)'$ to l'Cllloedy the dc:raull or propose 1t satL~fnctory remedy to cure: the default. If 'Whitewater is unable to make such remedy, the Purdia...er m.ay elecr to terminate the Agreement. 5.1.3 The Purchaser can terminate !his Agreement. without cau~. subject to making payment to WltirewMer it\ w alitOi.ir\t:pro ma lo the pcrocntage of wart- perfonned of the contract value. 5.2 By Whitcwarer 5.2.1. If the P11rchaser should fail or wrongfull>• refuse to approve or refuse to make payment in occord:mcc wilh Section 4, then Whitewater IT\ll!r' elc.ct 10 term.in3.le the by Mliec in writing. Whitewater may recover from Pure.baser payment for all work satisfactorily completed and to n:covcr all d~ct costs pror.atcd (rom cont.fact 11mo11nts, incurred 11p to the tfolc of 1em1ination. U Purch:1scr cures its nonpayment witllin (15) days th~n Wh itcwater's notice o( tennina1io11 wil! be fl:ndercd 6. Jmumnce ATTACHMENT ---PAGE BREAK--- ~1 WHITEWATER 6.1 Whitewater agrees to maintain compensation insurance for the protection of its' employees, and to ensure all of its' contractors maintain the same. 6.2 Whitewater agrees to maintain general product liability insurance with a single claim limit of at least $2,000,000. 7. Indemnificatio11 7. l The Purchaser agrees to indemnify and save harmless Whitewater, its' agents, successors, assigns, and employees, from all claims, damages, costs, demands, suits, actions, or claims for contribution or indemnity resulting from the improper operation or incorrect use of the Equipment, including legal costs of responding to or defending such claims, suits or actions. 8. Assig11ment 8.1 Whitewater may not a.~sign a portion of this contract to other parties without the written consent of the Purchaser. Whitewater may use subcontractors in the fulfillment of the contract. 8.2 The Purchaser may not assign the contract without the written consent of Whitewater. 9. Disputes 9.1 Claims, disputes or other matters in question between the parties to this Agreement arising out of or relating to this Agreement or breach thereof shall be directed by arbitration in Texas, USA under the Rules of Conciliation and Arbitration of The American Arbitration Association (the "AAA Rules"). 9.2 Demand for arbitration shall be filed in writing with the other party to this Agreement and with the AAA. A demand for arbitration shall be made within a reasonable time after the claim, dispute or other matter in question has arisen. The award rendered by the arbitrator or arbitrators shall be final, and judgment may be entered upon in accordance with applicable law in any court having jurisdiction thereof. 9.2. l Whitewater will have no obligation to pursue arbi1.ration of any dispute if it relates to the non- payment of any amounts owing by the Purchaser under this Agreement and in which case Whitewater will have the right to commence legal action to enforce payment of the indebtedness and enforce any security or proprietary interest, without resorting to arbitration. IO. Jurisdiction 10.1 This agreement shall be construed in accordance with, and will be subject to, the laws of the State of Texa~. The courts of Texas shall have exclusive jurisdiction in respect of disputes relative to this Agreement. II. Force Majeure 11. l Any prevention, delay or stoppage due to strikes, walkouts, labor disputes, acts of God, governmental actions, civil commotion, fire, or any other causes beyond the reasonable control of the Purchaser or Whitewater shall not be deemed to be a breach of the Agreement. The Purchaser or Whitewater shall have a reasonable time after cessation of the above mentioned causes to render performance as specified in the Agreement. End of Contract. ATTACHMENT