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HomeMy WebLinkAboutWhiteWater West Industries - 2017 AgreementAGREEMENT FOR SERVICES (For contracts over $5,000 — NON - DESIGN, NON - ENGINEERING TYPE CONTRACTOR) This AGREEMENT made this 5th day of September, 2017, between: CITY: City of Gilroy, having a principal place of business at 7351 Rosanna Street, Gilroy, California and CONTRACTOR: WhiteWater West Industries, having a principal place of business at 6700 McMillan Way, Richmond, BC V6W 1J7, BC, Canada. ARTICLE 1. TERM OF AGREEMENT This Agreement will become effective on September 25th, 2017 and will continue in effect through June 30th, 2018 unless terminated in accordance with the provisions of Article 7 of this Agreement. Any lapse in insurance coverage as required by Article 5, Section D of this Agreemen". ball terminate this Agreement regardless of any other provision stated herein. r� Initial ARTICLE 2. INDEPENDENT CONTRACTOR STATUS It is the express intention of the parties that CONTRACTOR is an independent contractor and not an employee, agent, joint venturer or partner of CITY. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between CITY and CONTRACTOR or any employee or agent of CONTRACTOR. Both parties acknowledge that CONTRACTOR is not an employee for state or federal tax purposes. CONTRACTOR shall not be entitled to any of the rights or benefits afforded to CITY'S employees, including, without limitation, disability or unemployment insurance, workers' compensation, medical insurance, sick leave, retirement benefits or any other employment benefits. CONTRACTOR shall retain the right to perform services for others during the term of this Agreement. ARTICLE 3. SERVICES TO BE PERFORMED BY CONTRACTOR A. Specific Services CONTRACTOR agrees to: Perform the services as outlined in Exhibit "A" ( "Specific Provisions ") and Exhibit "B" ("Scope of Services "), within the time periods described in Exhibit "C" ( "Milestone Schedule "). B. Method of Performing Services CONTRACTOR shall determine the method, details and means of performing the above - described services. CITY shall have no right to, and shall not, control the manner or determine the method of accomplishing CONTRACTOR'S services. 4815 -6790 -99580 _ 1 MBRANSON104706038 C. _Employment of Assistants CONTRACTOR may, at the CONTRACTOR'S own expense, employ such assistants as V CONTRACTOR deems necessary to perform the services required of CONTRACTOR by this Agreement, subject to the prohibition against assignment and subcontracting contained in Article 5 below. CITY- may not control, direct, or supervise CONTRACTOR'S assistants in the performance of those services. CONTRACTOR assumes full and sole responsibility for. the payment of all compensation and expenses of these assistants and for all state and d federal, income tax, unemployment insurance, Social Security, disability insurance and other applicable _ withholding. D. Place of Work CONTRACTOR shall perform the services required by this Agreement at any place or location and, at such times as CONTRACTOR shall determine is necessary to prop_ erly and timely perform CONTRACTOR'S "services. ARTICLE 4. COMPENSATION A. Consideration In consideration for the services to be performed by CONTRACTOR, CITY agrees to pay CONTRACTOR the amounts set forth in Exhibit "D "' ( "Payment Schedule"). In no event however shall the total compensation paid to CONTRACTOR exceed $42,658.00. B. Invoices CONTRACTOR shall submit invoices for all services rendered. C. Payment Payment shall be due according to the P a Ym ent schedule set forth in Exhibit "D ". No payment _ will be made unless CONTRACTOR has first provided City with a written receipt of invoice describing • the work performed and any approved direct expenses (as provided for in Exhibit "A ", Section IV) incurred during the preceding period. If CITY objects to all or any portion of any invoice, CITY shall notify CONTRACTOR of the objection within thirty (30) days from receipt of the invoice, give reasons for the objection, and pay that portion •of the invoice not in dispute. It shall not constitute a default or breach of this Agreement for CITY not to pay any invoiced amounts to which_ 'it has objected until' the objection has been resolved by mutual agreement of the parties. D. Expenses CONTRACTOR shall be responsible for all costs and expenses incident to the performance of services for CITY, including but not limited to, all. costs-'of equipment used or provided by CONTRACTOR, all fees, fines, licenses,, bonds o_r - taxes required of or imposed against CONTRACTOR and all other of CONTRACTOR'S costs of -,doing business. CITY shall not be- 4815 - 6790- 9958v1_ _?_ MBRANSOM04706038 responsible for any expenses incurred by CONTRACTOR in performing services for CITY, except for those expenses constituting "direct expenses" referenced on Exhibit "A." ARTICLE 5. OBLIGATIONS OF CONTRACTOR A. Tools and Instrumentalities CONTRACTOR shall supply all tools and instrumentalities required to perform the services under this Agreement at its sole cost and expense. CONTRACTOR is not required to purchase or rent any tools, equipment or services from CITY. B. Workers' Compensation CONTRACTOR agrees to provide workers' compensation insurance for CONTRACTOR'S employees and agents and agrees to hold harmless, defend with counsel acceptable to CITY and indemnify CITY, its officers, representatives, agents and employees from and against any and all claims, suits, damages, costs, fees, demands, causes of action, losses, liabilities and expenses, including without limitation reasonable attorneys' fees, arising out of any injury, disability, or death of any of CONTRACTOR'S employees. C. Indemnification of Liability, Duty to Defend As to all liability, to the fullest extent permitted by law, CONTRACTOR shall defend, through counsel approved by CITY (which approval shall not be unreasonably withheld), indemnify and hold harmless CITY, its officers, representatives, agents and employees against any and all suits, damages, costs, fees, claims, demands, causes of action, losses, liabilities and expenses, including without limitation attorneys' fees, arising or resulting directly or indirectly from any act or omission of CONTRACTOR or CONTRACTOR'S assistants, employees or agents, including all claims relating to the injury or death of any person or damage to any property. D. Insurance In addition to any other obligations under this Agreement, CONTRACTOR shall, at no cost to CITY, obtain and maintain throughout the term of this Agreement: (a) Commercial Liability Insurance on a per occurrence basis, including coverage for owned and non -owned automobiles, with a minimum combined single limit coverage of $1,000,000 per occurrence for all damages due to bodily injury, sickness or disease, or death to any person, and damage to property, including the loss of use thereof. As a condition precedent to CITY'S obligations under this Agreement, CONTRACTOR shall furnish written evidence of such coverage (naming CITY, its officers and employees as additional insureds on the Comprehensive Liability insurance policy referred to in (a) immediately above via a specific endorsement) and requiring thirty (30) days written notice of policy lapse or cancellation, or of a material change in policy terms. 4815 -6790- 9958v1 _3 _ MBRANSON104706038 E. Assignment Notwithstanding any other provision of this Agreement, neither this Agreement nor any duties or obligations of CONTRACTOR under this Agreement may be assigned or subcontracted i by CONTRACTOR without the prior written consent of CITY, which CITY may withhold in its sole and absolute discretion. F. State and Federal Taxes As CONTRACTOR is not CITY'S employee,-CONTRACTOR shall be responsible for paying all required state and federal taxes. Without limiting the foregoing, CONTRACTOR ,acknowledges and agrees that: CITY will not withhold FICA (Social Security) from CONTRACTOR'S_ payments; o CITY will not make state or federal un_em_ployment insurance contributions on CONTRACTOR'S behalf; CITY will not withhold state or federal income tax from payment to CONTRACTOR; • CITY will not make disability insurance contributions on behalf of CONTRACTOR; C_I_TY will not obtain_ workers' compensation insurance on behalf of CONTRACTOR. G. Prevailing Wage CONTRACTOR agrees and acknowledges that it is its obligation to determine whether, and to what extent, the work performed under this Agreement is subject to any Codes,, Ordinances, -_ Resolutions, Rules and other Regulations and established policies of CITY and the laws of the State of California, the United States, the California Labor Code and, Public Contract Code :relating to public contracting .and prevailing wage laws. CONTRACTOR shall ensure that all assistants and/or subcontractors are informed of any comply,with any requirement to pay prevailing wages in compliance with the California Labor Code and the regulations thereunder. It is the duty of CONTRACTOR to post a copy of applicable prevailing wages at the job site. Prevailing wage information may be'obtained at www.dir.ca.gov. ARTICLE 6. OBLIGATIONS OF CITY A. Cooperation of-City CITY agrees to respond to all reasonable -requests of.CONTRACTOR and provide access, at reasonable times following receipt by CITY of reasonable notice, to all documents reasonably necessary to the performance of CONTRACTOR'S duties under this Agreement. 4815- 6790- 9958v1 MBRANSON104706038 r -4- B. Assignment CITY may assign this Agreement or any duties or obligations thereunder to a successor governmental entity without the consent of CONTRACTOR. Such assignment shall not release CONTRACTOR from any of CONTRACTOR'S duties or obligations under this Agreement. ARTICLE 7. TERMINATION OF AGREEMENT A. Sale of CONTRACTOR'S Business/ Death of CONTRACTOR. CONTRACTOR shall notify CITY of the proposed sale of CONTRACTOR's business no later than thirty (30) days prior to any such sale. CITY shall have the option of terminating this Agreement within thirty (30) days after receiving such notice of sale. Any such CITY termination pursuant to this Article 7.A shall be in writing and 'sent to the address for notices to CONTRACTOR set forth in Exhibit` A, Subsection V.H., no later than thirty (30) days after CITY' receipt of such notice of sale. If CONTRACTOR is, an individual, this Agreement shall be deemed automatically terminated upon death of CONTRACTOR. B. Termination by City for Default of CONTRACTOR Should CONTRACTOR default in the performance of this Agreement or materially breach any - of its provisions, CITY, at CITY'S option, may terminate this Agreement by giving written notification to CONTRACTOR. For the ,purposes of this section, m_ _aterial breach of this Agreement shall include, but not be limited to the following: I. CONTRACTOR'S failure to professionally and /or timely perform any of the services contemplated by this Agreement. F 2. CONTRACTOR'S 'breach of any of its representations, warranties or covenants contained in this Agreement. CONTRACTOR shall be entitled to ,payment only for work completed in accordance with the terms of this Agreement through the date of the termination notice, as reasonably determined by -` -CITTY, provided that such payment shall' riot exceed the amounts set -forth in this Agreement for -the -tasks described on Exhibit C" which have been fully, competently and timely rendered by CONTRACTOR. Notwithstanding the foregoing, if CITY terminates this Agreement due to CONTRACTOR'S default in the performance of this Agreement or material breach by CONTRACTOR of any of its provisions, then in addition to any other rights and remedies CITTY - may have, CONTRACTOR shall reimburse C_ ITY, within ten (10) days after demand, for-any and all costs and expenses incurred by CITY'in order to complete the tasks constituting the scope of work as described in this Agreement,,-to the extent such costs and expenses exceed the amounts CITY would have been obligated to pay CONTRACTOR for th_e performanc_ e_ of that task pursuant to this Agreement. 4815. 6790 -99580 MBRANSON104706038 C. 'Termination for Failure to Make Agreed -Upon Payments Should CITY fail to pay CONTRACTOR all or any part of the compensation set forth in Article 4 of this Agreement on the date due, then if and only if such nonpayment constitutes a default under this Agreement, CONTRACTOR, at the CONTRACTOR'S option, may terminate this _ Agreement if such default is not remedied' by CITY within thirty (3 0) days after demand for such payment is given by CONTRACTOR to CITY. D. Transition after Termination - Upon termination, CONTRACTOR shall immediately stop work, unless cessation could potentially cause any damage or harm to person or property; in which case CONTRACTOR shall cease such work as soon as it is safe to do so. CONTRACTOR shall incur no further expenses in' connection with this Agreement. CONTRACTOR shall promptly deliver to CITY all work done s toward' .completion of the services required hereunder; and shall act m such a manner as to, facilitate any the assumption of CONT_RACTOR's duties by any new CONTRACTOR hired' by- the CITY to complete such services. ARTICLE 8. GENERAL PROVISIONS A. Amendment & Modification No amendments, modifications, alterations, or changes to the terms of this Agreement shall be effective unless and until made in a writing signed by both parties hereto. B. Americans with Disabilities Act of 1990 Throughout the term of this Agreement, the CONTRACTOR shall comply fully with all applicable provisions of the Americans with Disabilities Act of 1990 ( "the Act ") in its current form and as it may be amended from time to time. CONTRACTOR shall also require such compliance of all subcontractors performing work under this Agreement, subject to' the prohibition against assignment and subcontracting contained in Article 5 above. The CONTRACTOR shall defend with counsel acceptable to CITY, indemnify and hold! harmless the CITY OF G_I_LROY, its officers, employees, agents and representatives from and against all suits, claims, demands, damages, costs, causes of action, losses, liabilities, expenses and fees, including without limitation reasonable attorneys' fees, that may arise out of any violations of the Act by the CONTRACTOR, its subcontractors, or the officers, employees, agents or representatives of either. C. Attorneys' Fees If any action at law or in equity, including an action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement, the prevailing party will be entitled to reasonable attorneys' fees, which may be set by the court in the same action or in a separate action brought for that purpose, in addition to any other relief to which that -party may be entitled. 4815 - 6790- 9958v1 _6_ MBRANSON104706038 D. Captions The captions and headings of the various sections„ paragraphs and subparagraphs of the Agreement are for convenience o_ my and shall n_ of be cons_ ide_ red_ nor referred to for resolving questions of interpretation. E. Compliance with Laws The CONTRACTOR shall keep itself informed of all State and National Paws and all municipal ordinances and regulations of the CITY which in any manner affect those engaged or employed in :the work, or the materials used in the work, or which in any way affect the conduct of the work, and of all such orders and decrees of bodies or tribunals having any jurisdiction or authority over the same. Without limiting the foregoing, CONTRACTOR agrees to observe the provisions of the Municipal Code of the CITY OF- GILROY, obligating every contractor or subcontractor under a contract or subcontract to the CITY OF GILROY for public works or for goods or services to refrain from discriminatory employment or subcontracting ,practices on the .basis of'the "race, color, sex, religious creed, national origin, ancestry of any employee; applicant for employment, or any potential subcontractor. F. Conflict of Interest CONTRACTOR certifies that to the best of its knowledge, no CITY employee or office of any public agency interested in this Agreement has any pecuniary interest in the business of CONTRACTOR and that no person associated with CONTRACTOR has any interest that would 'constitute a conflict of interest in any manner or degree as to the execution or performance of this Agreement. G.' Entire Agreement This Agreement supersedes any and all prior agreements, whether oral or written, 'between `the parties hereto with respect to the rendering of services by CONTRACTOR_ for CITY and _ contains all the covenants and agreements between the parties with respect to the rend"e_ring of such services in any manner whatsoever. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by- any party, or anyone acting on behalf of any party, which are not embodied herein, and that.no other agreement, statement or promise not contained in this Agreement shall be valid or binding: No other agreements or conversation with any officer, agent or employee of CITY prior to execution of this Agreement shall affect or modify any of the terms or obligations contained, in any documents comprising this Agreement. 'Such other, agreements or conversations shall be considered as unofficial information and in no way binding upon CITY. H. Governing Law and Venue This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflict of laws provisions.of an y jurisdiction. The exclusive jurisdiction and venue with respect to any and all disputes arising hereunder shall be in state and federal courts located in Santa Clara County, California. 4815 -6790- 9958v1 =7= MBRANSON104706038 I. Notices Any notice to be given hereunder by either party to the other may be effected either by personal delivery in writing or by mail, registered or certified, postage prepaid with return receipt requested. Mailed notices shall be addressed to the parties at the addresses appearing in Exhibit "A ", Section V.H. but each party may change the address by written notice in accordance with this paragraph. Notices delivered personally will be deemed delivered as of actual receipt; mailed notices will be deemed delivered as of three (3) days after mailing. J. Partial Invalidity If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way. K. Time of the Essence All dates and times referred to in this Agreement are of the essence. L. Waiver CONTRACTOR agrees that waiver by CITY of any one or more of the conditions of performance under this Agreement shall not be construed as waiver(s) of any other condition of performance under this Agreement. Executed at Gilroy, California, on the date and year first above written. CONTRACTOR: WhiteWater West Industries By: i Name: t t Title: ; > -_ vLer- Social Security or Taxpayer Identification Number 98- 0126754 Approved as to Form 6�k'huyi� City Attorney 4815 - 6790 -99580 MBRANSON104706038 -8- CITY: CITY OF GILROY By: Name- (SA'V-U Title: EXHIBIT "A" SPECIFIC PROVISIONS I. PROJECT MANAGER CONTRACTOR shall provide the services indicated on the attached Exhibit "B ", Scope of Services ( "Services "). (All exhibits referenced are incorporated herein by reference.) To accomplish that end, CONTRACTOR agrees to assign Steve Bushing, who will act in the capacity of Project Manager, and who will personally direct such Services. Except as may be specified elsewhere in this Agreement, CONTRACTOR shall furnish all technical and professional services including labor, material, equipment, transportation, supervision and expertise to perform all operations necessary and required to complete the Services in accordance with the terms of this Agreement. II. NOTICE TO PROCEED /COMPLETION OF SERVICE A. NOTICE TO PROCEED CONTRACTOR shall commence the Services upon delivery to CONTRACTOR of a written "Notice to Proceed ", which Notice to Proceed shall be in the form of a written communication from designated City contact person(s). Notice to Proceed may be in the form of e -mail, fax or letter authorizing commencement of the Services. For purposes of this Agreement, I1iQk QtMC4 J shall be the designated City contact person(s). Notice to Proceed shall be deemed to have been delivered upon actual receipt by CONTRACTOR or if otherwise delivered as provided in the Section V.H. ( "Notices ") of this Exhibit "A ". B. COMPLETION OF SERVICES When CITY determines that CONTRACTOR has completed all of the Services in accordance with the terms of this Agreement, CITY shall give CONTRACTOR written Notice of Final Acceptance, and CONTRACTOR shall not incur any further costs hereunder. CONTRACTOR may request this determination of completion when, in its opinion, it has completed all of the Services as required by the terms of this Agreement and, if so requested, CITY shall make this determination within two (2) weeks of such request, or if CITY determines that CONTRACTOR has not completed all of such Services as required by this Agreement, CITY shall so inform CONTRACTOR within this two (2) week period. III. PROGRESS SCHEDULE The schedule for performance and completion of the Services will be as set forth in the attached Exhibit "C ". IV. PAYMENT OF FEES AND DIRECT EXPENSES Payments shall be made to CONTRACTOR as provided for in Article 4 of this Agreement. 4815 - 6790 -99580 _ 1 MBRANSON104706038 Direct expenses are charges and fees not included in Exhibit "B ". CITY shall be obligated to pay only for those direct expenses which have been previously approved in writing by CITY. CONTRACTOR shall obtain written approval from CITY prior to incurring or billing of direct expenses. Copies of pertinent financial records, including invoices, will be included_ with the submission of billing(s) for all direct expenses. V. OTHER PROVISIONS A. STANDARD OF WORKMANSHIP CONTRACTOR represents and warrants that it has the qualifications, skills and licenses necessary to perform the Services, and its duties and obligations, expressed and implied; contained herein, and CITY expressly relies upon CONTRACTOR'S representations and warranties regarding its skills, qualifications and licenses. CO_ NTRACTOR shall perform such Services and duties in conformance to and consistent with the standard's generally reco_ gnized a_ s being employed by professionals in the same discipline in the State of California. Any plans, designs, specifications, estimates, calculations, reports and other documents furnished under this Agreement shall be of a quality acceptable to CITY. The minimum criteri a for acceptance shall be a product of neat appearance, well' - organized, technically and grammatically correct, checked and having the maker and checker identified. The minimum standard of appearance, organization and content of the drawings shall be that used by CITY for similar purposes. B. RESPONSIBILITY OF CONTRACTOR CONTRACTOR shall be responsible for the professional quality, technical accuracy, and the coordination of the Services furnished by it under this Agreement. CONTRACTOR shall not be _responsible for the accuracy of any project or technical information provided by the CITY. The CITY_'S review, acceptance or payment for any of the Services shall not be construed to operate as a waiver of any rights under this Agreement or of any cause of action arising out of the performance of this Agreement, and CONTRACTOR shall be and remain liable to CITY in accordance with applicable law for all damages to CITY caused by CONTRACTOR'S negligent performance of any of the services furnished under this Agreement. C. RIGHT OF CITY TO INSPECT RECORDS OF CONTRACTOR CITY, through its authorized employees, representatives or agents, shall have the right, at any and all reasonable times, to audit the books and records (including, but not limited to, invoices, vouchers, canceled checks, time cards, etc.) of CONTRACTOR for the purpose of verifying any and' all charges made by CONTRACTOR in connection with this Agreement. CONTRACTOR shall maintain for a minimum period of three (3) years (from the date of final payment to CONTRACTOR), or for any longer ,period required by law, sufficient books and records in accordance with standard California accounting practices to establish the correctness of all charges submitted to CITY by CONTRACTOR, all of which shall be made available C I_TY_ at the CITY's offices within five (5) business days after CITY's request. 4815 - 6790- 9958v1 MBRANSON104706038 D. CONFIDENTIALITY OF' MATERIAL All ideas, memoranda, specifications; plans, manufacturing procedures, data (including, but not limited to, computer data and source code), drawings, descriptions, documents, discussions or other information developed or received by or for CONTRACTOR and all other written and oral information developed' or received by or for CONTRACTOR and all other written and oral information submitted to CONTRACTOR in connection with the performance of this Agreement shall be held confidential by CONTRACTOR and shall not, without the prior written consent of CITY, be used for any purposes other than the performance of the Services, nor be disclosed to an entity not connected with the ,performance of the such Services. Nothing furnished to CONTRACTOR which is otherwise known to CONTRACTOR or is or becomes generally known to the related industry (other than that which becomes generally known as the result of CONTRACTOR'S disclosure thereof) shall be deemed_ confidential. CONTRACTOR shall not use CITY'S name or insignia, or distribute publicity pertaining to the services rendered under this Agreement in any magazine; trade paper, newspaper or other medium without the express written consent of CITY. E. NO PLEDGING OF CITY'S CREDIT. Under no circumstances shall CONTRACTOR have the authority or power to pledge the credit of CITY or incur any obligation in the name of CITTY. F. OWNERSHIP OF MATERIAL. All, material including, but not limited to, computer information, data and source code, sketches, tracings, drawings, plans, diagrams, quantities, estimates, specifications,, ,proposals, tests, maps, - calculations, photographs, reports and other material developed, collected, prepared (or caused to be prepared) under this Agreement shall be the property of CITY, but CONT_ RACTO_ R may retain and use copies thereof subject to Section V.D of this Exhibit "A ". CITY shall not be limited in any way in its use of said material at any time for any work, whether or not associated with the City project for which the Services are performed. However, CONTRACTOR shall not be responsible for, and City shall indemnify CONTRACTOR from, damages resulting from the use of said material for work other than PROJECT, including, but not limited to, the release of this material to third parties for work other than on PROJECT. G. NO THIRD PARTY BENEFICIARY. This Agreement shall not be construed or deemed to be an agreement for the benefit of any third party or parties, and no third party or parties shall have any claim or right o_ f action_ hereunder for any cause whatsoever. 48153790- 9958v1 _3= MBRANSON104706038 H. NOTICES. Notices are to be sent as follows: CITY: Walter Dunckel City of Gilroy 7351 Rosanna Street Gilroy; CA 95020 CONTR_ AC_ TOR - WhiteW ater-W est -Industries 6700 - McMillan Way Richmond: BC V6W__1J7, Canada I, FEDERAL FUNDING REQUIREMENTS. Q If the box to the left of this sentence is checked; this Agreement involves federal funding and the requirements of this Section V.I. apply. If the box to the left of this sentence is checked, this Agreement does not involve federal funding and the requirements of this Section V.I. do not apply. - 1. DBE Program CONTRACTOR shall comply with the requirements of Title • 49, Part 26, Code of Federal Regulations (49 CFR 26) and the City- adopted Disadvantaged Business Enterprise programs: 2. Cost Principles Federal Acquisition Regulations in Title_ 48, C_ FR 31, shall b_ a used to determine the allowable cost for individual items. 3. Covenant against Contingent Fees The CONTRACTOR warrants that he /she has not employed or retained any company or,pers_op, other than a bona fide employee working for the CONTRACTOR, to solicit or secure this Agreement, and that he /she has not paid' or agreed to pay any company or person, other than a, bona fide employee, any fee, commission, percentage, brokerage fee, gift -or any other consideration, contingent upon or resulting from the award_oi formation of this Agreement. Fbr breach or violation of this warranty, the L- ocal Agency " shall have the right to annul this - Agreement without liability or, at its discretion, to deduct- from the agreement price or consideration, or otherwise recover, the full amount of suc_ h fee, c_ o_ mmission, percentage, brokerage fee, gift or contingent fee. 4815- 8790- 9958v1 MBRANS004708038 -4- EXHIBIT "B" SCOPE OF SERVICES For closed flume (Slide A): Clean all interior and exterior surface areas, removing calcium buildup and other surface blemishes. Prepare all interior surfaces and apply Gel Coat and PSX 700 Ultra respectively. Top up caulking. Capture overspray. On interactive aquatic slide area: Repair previously painted areas where paint did not adhere properly, and repaint those areas. 4815 -6790 -99580 MBRANSON104706038 -1- EXHIBIT "C" MILESTONE SCHEDULE Work to be completed prior _t_o May 15t_h, 2018. 4815 -6790- 9958vli MBRANSOM04706038 4- EXHIBIT "D" PAYMENT SCHEDULE A payment of $21;329 to be paid' at 50% completion. The remaining $21,329 to be paid within 30 days of successful completion of the project. 4815 - 6790- 9958v1 MBRANSON104706038 ACOeevP CERTIFICATE OF LIABILITY INSURANCE DATE(MM /DD/YYYY) �� 10/23/2017 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER ICONTACT BFL CANADA Insurance Services Inc. Suite 200 - 1177 West Hastings Street Vancouver, BC V6E 2K3 INSURED Whitewater West Industries Ltd. 6700 McMillan Way Richmond, BC V6W 1J7 COVERAGES rFRTICICATF h111MOCD. LC 64 - 678 -547 (A/. No. Ertl, (FAX, No) 604- 683 -9316 ADDRESS glagaditis @bflcanada.ca Insurance NAIC # THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR - TYPE OF INSURANCE ADDL SUBR POLICY NUMBER POLICY EFF MM /DD POLICY EXP MWDD/YYYY LIMITS X COMMERCIAL GENERAL LIABILITY CLAIMS -MADE Fx] OCCUR EACH OCCURRENCE $ 2,000,000 USD DAMAGE T RENTED PREMISES Ea occune"ce $ 300,000 USD MED EXP (Any one person) $ 5,000 USD A Y 1000122366 -10 11/30/2016 11/30/2017 BADVINJURY $ 1,000,000 USD GEN'L AGGREGATE LIMIT APPLIES PER X POLICY [::] PRO- JECT LOC -PERSONAL GENERAL AGGREGATE $ 2,000,000 USD PRODUCTS - COMP /OPAGG $ 2,000,000 USD OTHER Non -Owned Automobile Liability $ 1,000,000 USD AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT Ea accident $ ANY AUTO ALL OWNED SCHEDULED AUTOS AUTOS HIRED AUTOS AUTOS ON -OWNED BODILY INJURY (Per person) $ H BODILY INJURY (Per accident) $ PROPERTY DAMAGE Per accident $ $ - 1 A X UMBRELLA LIAB EXCESSLIAB X OCCUR CLAIMS -MADE Y 1000047349 -10 11/30/2016 11/30/2017 EACH OCCURRENCE $ 3,000,000 USD AGGREGATE - GENERAL $ 3,000,000 USD DED RETENTION $ $ WORKERS COMPENSATION AND EMPLOYERS' LIABILI Y YIN ANY PROPRIETOR/PARTNER/EXECUTIVE ❑ OFFICER /MEMBER EXCLUDED? (Mandatory in If yes, describe under und DESCRIPTION OF OPERATIONS below NIA A PER OTH- STATUTE ER E L EACH ACCIDENT $ E L DISEASE - EA EMPLOYE $ E L DISEASE - POLICY LIMIT 1 $ A Professional Liability (Claims Made) PLTOAAW95RO04 11/30/2016 11/30/2017 Each Loss $1,000,000 USD Aggregate per Policy Period $1,000,000 USD DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached If more space Is required) Project No 38030 It is understood and agreed that City of Gilroy, its officers, officials and employees are added as Additional Insured(s) to the Commercial General Liability policy, but only with respect to liability ansing out of the operations of the Named Insured as it relates to the activity to which this certificate applies r%0C2T111T1^ATC LI Al - City of Gilroy, Its officers, officials and employees 7351 Rosanna Street Gilroy, CA 95020 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. REPRESENTATIVE ©1988 -�'i AL;UKU 25 (2014101) The ACORD name and logo are registered marks of ACORD Insurance Services Inc. All rinhfc roc. -I Liberty International Underwriters,, Endorsement No. 37 ADDITIONAL INSURED(S) Effective Date: 02/22/2017 Policy Number: 1000122366 -10 Issued to: Whitcwatct West Industries Ltd., Whitcwater Composites Ltd., 398314 BC Ltd., Whirewater International LLC:, F1owRider Surf Ltd., Chutter Recreations Ltd. Issued b5% Liberty Mutual Insurance Company Broker: BPL Canada Insurance Services Inc. — Vancouver Coverage under this Policy applies to the following additional "Insured(s) ", but only with respect to liability arising out of the operations of the Named Insured: City of Gilroy, its officers, officials and employees 7351 Rosanna Street Gilroy, CA 95020 Premium: Not Applicable ALL OTHER TERMS AND CONDITIONS REMAIN UNCHANGED. P" .—., C- s Authorized Representative of Liberty Mutual Insurance Company February 22, 2017 Date Update: 01.12 Commercial General Liability Policy Liberty International Underwriters, a Division of the Liberty Mutual Insurance Company CERTIFICATE OF LIABILITY INSURANCE DATE`MM,DDI 10/23r2017 10/23r2017 017 o17 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder Is an ADDITIONAL INSURED; the policy(les) must be endorsed. If SUBROGATION IS WANED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder In fleu of such endorsement (s). PRODUCER Liberty Mutual Insurance 175 Berkeley Street NAME: Amy Mehta FNORE 416 -3076 F Na rxtis _No. E mAa ��SS: amy.mehta@libertyiu.com INSURERM AFFORDING COVERAGE NAIC 0 Boston, MA 02116 INSURER A: Employers Insurance Company of Wausau INSURED INSURER B S 06uRERC: DAMAGE T PREMISES nee Whitewater West Industries Inc. a/o Whitewater West Industries Ltd.; a/o FlowRlder Inc. 9250 East Costilla Avenue, Suite 500B Greenwood Village, CO 80112 INSURER D MED EXP Ww an person) INSURER rz: PERSONAL & ADV INJURY S INSURER F ' GENERALAGGREGATE I+rtVG�Af!GC rco"ClP -ATc k1nM12012. REVISION NUMBER: vv� THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUW OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. TR TYPE OF INSURANCE DL SUER POLICY NUMBER M I) EFF P WDC YY LI6'tITS COLIMERCULL GENERAL LIABILITY CLAIMS-MADE F-1 OCCUR EACHOCCURRENCE S DAMAGE T PREMISES nee $ MED EXP Ww an person) $ PERSONAL & ADV INJURY S GENIL AGGREGATE LIMITAPPLIES PER: POLICY PRO- CTT LOC OTHER; GENERALAGGREGATE S PRODUCTS - COMPIOPAGO S S AUTOMOBILE LIASILITY ANY AUTO ALL OWNED SCHEDULED AUTO$ AUTOS HIRED AUTOS OgWNED B depot IN LIMIT S BODILY INJURY (Per person) $ BODILY INJURY (Per acddenl) S PROPERTYt E S S UMRELLA LI AB EXCE_SSLIAB OCCUR EACH OCCURRENCE S HCLAIMS40DE AGGREGATE S DEO RETENTIONS S A WORXERSCOMPENSAMON AND EMPLOYERS' LIABILITY YIN ANYPROP'RIErORIPARTNERIEXECUTNE ❑NIA (Mandatory N (Mandatory In NH) Ir yyoess d--be under DESCRIPTION OF OPERATIONS Debar WCC -B71- 170574-027 07fd12017 07/312018 X I STATUTE I I ER EJ_ EACH ACCIDENT $1,000.000 EJ_ DISEASE - EAEMPLO S1 E.L. DISEASE - POLICY LIMIT S 1 OW OW DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (ACORD 101, Additional Romarks Schadalo, may bo otmchad U mom spoor Is rogalmd) Project No. 38030 Project Location State: California - rtr,e -wT� urtf nrn CANCFI I A-rinm City Of Gilroy, its officers, officials and employees 7351 Rosanna Street Gilroy, CA 95020 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE For US Workers' Campensftn Only L0I958 -2014 AGORU GORPUHA I ION. All ngms reserved. ACORD 25 (2014101) The ACORD name and logo are registered marks of ACORD