HomeMy WebLinkAboutContractAGREEMENT FOR INSPECTION SERVICES
THIS AGREEMENT, dated for reference purposes only as May 13, 2022, is by and between the
City of Renton (the “City”), a Washington municipal corporation, and Whitewater West Industries
Ltd. (“Consultant”) a Foreign Profit Corporation of Richmond BC, Canada, Registered
in 8BTIJOHUPO. To conduct a visual inspection of the condtion of both waterslides at the
Henry Moses Aquatic Center. The City and the Consultant are referred to collectively in this
Agreement as the “Parties.” Once fully executed by the Parties, this Agreement is effective as of
the last date signed by both parties.
1. Scope of Work: Consultant agrees to provide One Whitewater Sr. Advisor for 1 day to
perfom a visual inspection of both water sides as specified in Exhibit A, which is attached
and incorporated herein and may hereinafter be referred to as the “Work.”
2. Changes in Scope of Work: The City, without invalidating this Agreement, may order
changes to the Work consisting of additions, deletions or modifications. Any such changes
to the Work shall be ordered by the City in writing and the Compensation shall be
equitably adjusted consistent with the rates set forth in Exhibit A or as otherwise mutually
agreed by the Parties.
3. Time of Performance: Consultant shall commence performance of the Agreement
pursuant to the schedule(s) set forth in Exhibit A. All Work shall be performed by no later
than 8/1/2022.
4. Compensation:
A.Amount. Total compensation to Consultant for Work provided pursuant to this
Agreement shall not exceed $8,047.50, plus any applicable state and local sales taxes.
Compensation shall be paid based upon Work actually performed according to the
rate(s) or amounts specified in Exhibit A. The Consultant agrees that any hourly or flat
rate charged by it for its Work shall remain locked at the negotiated rate(s) unless
otherwise agreed to in writing or provided in Exhibit A. Except as specifically provided
herein, the Consultant shall be solely responsible for payment of any taxes imposed
as a result of the performance and payment of this Agreement.
B.Method of Payment. On a monthly or no less than quarterly basis during any quarter
in which Work is performed, the Consultant shall submit a voucher or invoice in a form
specified by the City, including a description of what Work has been performed, the
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name of the personnel performing such Work, and any hourly labor charge rate for
such personnel. The Consultant shall also submit a final bill upon completion of all
Work. Payment shall be made by the City for Work performed within thirty (30)
calendar days after receipt and approval by the appropriate City representative of the
voucher or invoice. If the Consultant’s performance does not meet the requirements
of this Agreement, the Consultant will correct or modify its performance to comply
with the Agreement. The City may withhold payment for work that does not meet the
requirements of this Agreement.
C. Effect of Payment. Payment for any part of the Work shall not constitute a waiver by
the City of any remedies it may have against the Consultant for failure of the
Consultant to perform the Work or for any breach of this Agreement by the
Consultant.
D.Non-Appropriation of Funds. If sufficient funds are not appropriated or allocated for
payment under this Agreement for any future fiscal period, the City shall not be
obligated to make payments for Work or amounts incurred after the end of the
current fiscal period, and this Agreement will terminate upon the completion of all
remaining Work for which funds are allocated. No penalty or expense shall accrue to
the City in the event this provision applies.
5.Termination:
A.The City reserves the right to terminate this Agreement at any time, with or without
cause by giving ten (10) calendar days’ notice to the Consultant in writing. In the event
of such termination or suspension, all finished or unfinished documents, data, studies,
worksheets, models and reports, or other material prepared by the Consultant
pursuant to this Agreement shall be submitted to the City, if any are required as part
of the Work.
B.In the event this Agreement is terminated by the City, the Consultant shall be entitled
to payment for all hours worked to the effective date of termination, less all payments
previously made. If the Agreement is terminated by the City after partial performance
of Work for which the agreed compensation is a fixed fee, the City shall pay the
Consultant an equitable share of the fixed fee. This provision shall not prevent the
City from seeking any legal remedies it may have for the violation or nonperformance
of any of the provisions of this Agreement and such charges due to the City shall be
deducted from the final payment due the Consultant. No payment shall be made by
the City for any expenses incurred or work done following the effective date of
termination unless authorized in advance in writing by the City.
6.Warranties And Right To Use Work Product: Consultant represents and warrants that
Consultant will perform all Work identified in this Agreement in a professional and
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workmanlike manner and in accordance with all reasonable and professional standards
and laws. Compliance with professional standards includes, as applicable, performing the
Work in compliance with applicable City standards or guidelines (e.g. design criteria and
Standard Plans for Road, Bridge and Municipal Construction). Professional engineers shall
certify engineering plans, specifications, plats, and reports, as applicable, pursuant to
RCW 18.43.070. Consultant further represents and warrants that all final work product
created for and delivered to the City pursuant to this Agreement shall be the original work
of the Consultant and free from any intellectual property encumbrance which would
restrict the City from using the work product. Consultant grants to the City a non-
exclusive, perpetual right and license to use, reproduce, distribute, adapt, modify, and
display all final work product produced pursuant to this Agreement. The City’s or other’s
adaptation, modification or use of the final work products other than for the purposes of
this Agreement shall be without liability to the Consultant. The provisions of this section
shall survive the expiration or termination of this Agreement.
7.Record Maintenance: The Consultant shall maintain accounts and records, which
properly reflect all direct and indirect costs expended and Work provided in the
performance of this Agreement and retain such records for as long as may be required by
applicable Washington State records retention laws, but in any event no less than six
years after the termination of this Agreement. The Consultant agrees to provide access
to and copies of any records related to this Agreement as required by the City to audit
expenditures and charges and/or to comply with the Washington State Public Records Act
(Chapter 42.56 RCW). The provisions of this section shall survive the expiration or
termination of this Agreement.
8.Public Records Compliance: To the full extent the City determines necessary to comply
with the Washington State Public Records Act, Consultant shall make a due diligent search
of all records in its possession or control relating to this Agreement and the Work,
including, but not limited to, e-mail, correspondence, notes, saved telephone messages,
recordings, photos, or drawings and provide them to the City for production. In the event
Consultant believes said records need to be protected from disclosure, it may, at
Consultant’s own expense, seek judicial protection. Consultant shall indemnify, defend,
and hold harmless the City for all costs, including attorneys’ fees, attendant to any claim
or litigation related to a Public Records Act request for which Consultant has responsive
records and for which Consultant has withheld records or information contained therein,
or not provided them to the City in a timely manner. Consultant shall produce for
distribution any and all records responsive to the Public Records Act request in a timely
manner, unless those records are protected by court order. The provisions of this section
shall survive the expiration or termination of this Agreement.
9.Independent Contractor Relationship:
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A.The Consultant is retained by the City only for the purposes and to the extent set forth
in this Agreement. The nature of the relationship between the Consultant and the City
during the period of the Work shall be that of an independent contractor, not
employee. The Consultant, not the City, shall have the power to control and direct the
details, manner or means of Work. Specifically, but not by means of limitation, the
Consultant shall have no obligation to work any particular hours or particular
schedule, unless otherwise indicated in the Scope of Work or where scheduling of
attendance or performance is mutually arranged due to the nature of the Work.
Consultant shall retain the right to designate the means of performing the Work
covered by this agreement, and the Consultant shall be entitled to employ other
workers at such compensation and such other conditions as it may deem proper,
provided, however, that any contract so made by the Consultant is to be paid by it
alone, and that employing such workers, it is acting individually and not as an agent
for the City.
B.The City shall not be responsible for withholding or otherwise deducting federal
income tax or Social Security or contributing to the State Industrial Insurance
Program, or otherwise assuming the duties of an employer with respect to Consultant
or any employee of the Consultant.
C.If the Consultant is a sole proprietorship or if this Agreement is with an individual, the
Consultant agrees to notify the City and complete any required form if the Consultant
retired under a State of Washington retirement system and agrees to indemnify any
losses the City may sustain through the Consultant’s failure to do so.
10.Hold Harmless: The Consultant agrees to release, indemnify, defend, and hold harmless
the City, elected officials, employees, officers, representatives, and volunteers from any
and all claims, demands, actions, suits, causes of action, arbitrations, mediations,
proceedings, judgments, awards, injuries, damages, liabilities, taxes, losses, fines, fees,
penalties, expenses, attorney’s or attorneys’ fees, costs, and/or litigation expenses to or
by any and all persons or entities, arising from, resulting from, or related to the negligent
acts, errors or omissions of the Consultant in its performance of this Agreement or a
breach of this Agreement by Consultant, except for that portion of the claims caused by
the City’s sole negligence.
Should a court of competent jurisdiction determine that this agreement is subject to RCW
4.24.115, (Validity of agreement to indemnify against liability for negligence relative to
construction, alteration, improvement, etc., of structure or improvement attached to real
estate…) then, in the event of liability for damages arising out of bodily injury to persons
or damages to property caused by or resulting from the concurrent negligence of the
Consultant and the City, its officers, officials, employees and volunteers, Consultant’s
liability shall be only to the extent of Consultant’s negligence.
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It is further specifically and expressly understood that the indemnification provided in
this Agreement constitute Consultant’s waiver of immunity under the Industrial
Insurance Act, RCW Title 51, solely for the purposes of this indemnification. The Parties
have mutually negotiated and agreed to this waiver. The provisions of this section shall
survive the expiration or termination of this Agreement.
11.Gifts and Conflicts: The City’s Code of Ethics and Washington State law prohibit City
employees from soliciting, accepting, or receiving any gift, gratuity or favor from any
person, firm or corporation involved in a contract or transaction. To ensure compliance
with the City’s Code of Ethics and state law, the Consultant shall not give a gift of any kind
to City employees or officials. Consultant also confirms that Consultant does not have a
business interest or a close family relationship with any City officer or employee who was,
is, or will be involved in selecting the Consultant, negotiating or administering this
Agreement, or evaluating the Consultant’s performance of the Work.
12.City of Renton Business License: Unless exempted by the Renton Municipal Code, t
Consultant shall obtain a City of Renton Business License prior to performing any Work
and maintain the business license in good standing throughout the term of this
agreement with the City.
Information regarding acquiring a city business license can be found at:
https://www.rentonwa.gov/Tax
Information regarding State business licensing requirements can be found at:
https://dor.wa.gov/doing-business/register-my-business
13.Insurance: Consultant shall secure and maintain:
A.Commercial general liability insurance in the minimum amounts of $1,000,000 for
each occurrence/$2,000,000 aggregate for the Term of this Agreement.
B.In the event that Work delivered pursuant to this Agreement either directly or
indirectly involve or require Professional Services, Professional Liability, Errors and
Omissions coverage shall be provided with minimum limits of $1,000,000 per
occurrence. "Professional Services", for the purpose of this section, shall mean any
Work provided by a licensed professional or Work that requires a professional
standard of care.
C.Workers’ compensation coverage, as required by the Industrial Insurance laws of the
State of Washington, shall also be secured.
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D.Commercial Automobile Liability for owned, leased, hired or non-owned, leased, hired
or non-owned, with minimum limits of $1,000,000 per occurrence combined single
limit, if there will be any use of Consultant’s vehicles on the City’s Premises by or on
behalf of the City, beyond normal commutes.
E.Consultant shall name the City as an Additional Insured on its commercial general
liability policy on a non-contributory primary basis. The City’s insurance policies shall
not be a source for payment of any Consultant liability, nor shall the maintenance of
any insurance required by this Agreement be construed to limit the liability of
Consultant to the coverage provided by such insurance or otherwise limit the City’s
recourse to any remedy available at law or in equity.
F.Subject to the City’s review and acceptance, a certificate of insurance showing the
proper endorsements, shall be delivered to the City before performing the Work.
G.Consultant shall provide the City with written notice of any policy cancellation, within
two (2) business days of their receipt of such notice.
14.Delays: Consultant is not responsible for delays caused by factors beyond the
Consultant’s reasonable control. When such delays beyond the Consultant’s reasonable
control occur, the City agrees the Consultant is not responsible for damages, nor shall the
Consultant be deemed to be in default of the Agreement.
15.Successors and Assigns: Neither the City nor the Consultant shall assign, transfer or
encumber any rights, duties or interests accruing from this Agreement without the
written consent of the other.
16.Notices: Any notice required under this Agreement will be in writing, addressed to the
appropriate party at the address which appears below (as modified in writing from time
to time by such party), and given personally, by registered or certified mail, return receipt
requested, by facsimile or by nationally recognized overnight courier service. Time period
for notices shall be deemed to have commenced upon the date of receipt, EXCEPT
facsimile delivery will be deemed to have commenced on the first business day following
transmission. Email and telephone may be used for purposes of administering the
Agreement, but should not be used to give any formal notice required by the Agreement.
CITY OF RENTON
Brian Hammon
1055 South Grady Way
Renton, WA 98057
Phone: (425) 757-3840
CONSULTANT
Kelly Wilkie
180 – 6651 Fraserwood Place
Richmond, British Columbia V6W 1J3
Canada
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Bhammon@rentonwa.gov
Fax: (425) 430-XXXXXXXX
Phone: (604) 273-1068
Kelly.wilkie@whitewaterwest.com
Fax: n/a
AND TO:
Luc Benac, Commercial Manager
luc.benac@whitewaterwest.com
17.Discrimination Prohibited: Except to the extent permitted by a bona fide occupational
qualification, the Consultant agrees as follows:
A.Consultant, and Consultant’s agents, employees, representatives, and volunteers
with regard to the Work performed or to be performed under this Agreement, shall
not discriminate on the basis of race, color, sex, religion, nationality, creed, marital
status, sexual orientation or preference, age (except minimum age and retirement
provisions), honorably discharged veteran or military status, or the presence of any
sensory, mental or physical handicap, unless based upon a bona fide occupational
qualification in relationship to hiring and employment, in employment or application
for employment, the administration of the delivery of Work or any other benefits
under this Agreement, or procurement of materials or supplies.
B.The Consultant will take affirmative action to insure that applicants are employed and
that employees are treated during employment without regard to their race, creed,
color, national origin, sex, age, sexual orientation, physical, sensory or mental
handicaps, or marital status. Such action shall include, but not be limited to the
following employment, upgrading, demotion or transfer, recruitment or recruitment
advertising, layoff or termination, rates of pay or other forms of compensation and
selection for training.
C.If the Consultant fails to comply with any of this Agreement’s non-discrimination
provisions, the City shall have the right, at its option, to cancel the Agreement in
whole or in part.
D.The Consultant is responsible to be aware of and in compliance with all federal, state
and local laws and regulations that may affect the satisfactory completion of the
project, which includes but is not limited to fair labor laws, worker's compensation,
and Title VI of the Federal Civil Rights Act of 1964, and will comply with City of Renton
Council Resolution Number 4085.
18.Miscellaneous: The parties hereby acknowledge:
A.The City is not responsible to train or provide training for Consultant.
B.Consultant will not be reimbursed for job related expenses except to the extent
specifically agreed within the attached exhibits.
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C.Consultant shall furnish all tools and/or materials necessary to perform the Work
except to the extent specifically agreed within the attached exhibits.
D.In the event special training, licensing, or certification is required for Consultant to
provide Work he/she will acquire or maintain such at his/her own expense and, if
Consultant employs, sub-contracts, or otherwise assigns the responsibility to perform
the Work, said employee/sub-contractor/assignee will acquire and or maintain such
training, licensing, or certification.
E.This is a non-exclusive agreement and Consultant is free to provide his/her Work to
other entities, so long as there is no interruption or interference with the provision of
Work called for in this Agreement.
F.Consultant is responsible for his/her own insurance, including, but not limited to
health insurance.
G.Consultant is responsible for his/her own Worker’s Compensation coverage as well as
that for any persons employed by the Consultant.
19.Other Provisions:
A.Approval Authority. Each individual executing this Agreement on behalf of the City
and Consultant represents and warrants that such individuals are duly authorized to
execute and deliver this Agreement on behalf of the City or Consultant.
B.General Administration and Management. The City’s project manager is Brian
Hammon. In providing Work, Consultant shall coordinate with the City’s contract
manager or his/her designee.
C.Amendment and Modification. This Agreement may be amended only by an
instrument in writing, duly executed by both Parties.
D.Conflicts. In the event of any inconsistencies between Consultant proposals and this
Agreement, the terms of this Agreement shall prevail. Any exhibits/attachments to
this Agreement are incorporated by reference only to the extent of the purpose for
which they are referenced within this Agreement. To the extent a Consultant
prepared exhibit conflicts with the terms in the body of this Agreement or contains
terms that are extraneous to the purpose for which it is referenced, the terms in the
body of this Agreement shall prevail and the extraneous terms shall not be
incorporated herein.
E.Governing Law. This Agreement shall be made in and shall be governed by and
interpreted in accordance with the laws of the State of Washington and the City of
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Renton. Consultant and all of the Consultant’s employees shall perform the Work in
accordance with all applicable federal, state, county and city laws, codes and
ordinances.
F.Joint Drafting Effort. This Agreement shall be considered for all purposes as prepared
by the joint efforts of the Parties and shall not be construed against one party or the
other as a result of the preparation, substitution, submission or other event of
negotiation, drafting or execution.
G.Jurisdiction and Venue. Any lawsuit or legal action brought by any party to enforce or
interpret this Agreement or any of its terms or covenants shall be brought in the King
County Superior Court for the State of Washington at the Maleng Regional Justice
Center in Kent, King County, Washington, or its replacement or successor. Consultant
hereby expressly consents to the personal and exclusive jurisdiction and venue of
such court even if Consultant is a foreign corporation not registered with the State of
Washington.
H.Severability. A court of competent jurisdiction’s determination that any provision or
part of this Agreement is illegal or unenforceable shall not cancel or invalidate the
remainder of this Agreement, which shall remain in full force and effect.
I.Sole and Entire Agreement. This Agreement contains the entire agreement of the
Parties and any representations or understandings, whether oral or written, not
incorporated are excluded.
J.Time is of the Essence. Time is of the essence of this Agreement and each and all of
its provisions in which performance is a factor. Adherence to completion dates set
forth in the description of the Work is essential to the Consultant’s performance of
this Agreement.
K.Third-Party Beneficiaries. Nothing in this Agreement is intended to, nor shall be
construed to give any rights or benefits in the Agreement to anyone other than the
Parties, and all duties and responsibilities undertaken pursuant to this Agreement will
be for the sole and exclusive benefit of the Parties and no one else.
L.Binding Effect. The Parties each bind themselves, their partners, successors, assigns,
and legal representatives to the other party to this Agreement, and to the partners,
successors, assigns, and legal representatives of such other party with respect to all
covenants of the Agreement.
M.Waivers. All waivers shall be in writing and signed by the waiving party. Either party’s
failure to enforce any provision of this Agreement shall not be a waiver and shall not
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prevent either the City or Consultant from enforcing that provision or any other
provision of this Agreement in the future. Waiver of breach of any provision of this
Agreement shall not be deemed to be a waiver of any prior or subsequent breach
unless it is expressly waived in writing.
N.Counterparts. The Parties may execute this Agreement in any number of
counterparts, each of which shall constitute an original, and all of which will together
constitute this one Agreement.
IN WITNESS WHEREOF, the Parties have voluntarily entered into this Agreement as of the date
last signed by the Parties below.
CITY OF RENTON
By:_____________________________
CONSULTANT
By: Kelly Wilkie______________
Martin Pastucha
Public Works Administrator
Kelly Wilkie
After Sales Specialist
_____________________________
Date
__May 13, 2022______________________
Date
Attest
_____________________________
Jason A. Seth
City Clerk
Approved as to Legal Form
By: __________________________
Cheryl Beyer
Senior Assistant City Attorney
Contract Template Updated 5/21/2021
Clb 4/1/22 1959
N/A
Approved by Cheryl Beyer via 5/17/2022 email
This document contains a formal quotation. When signed by both parties this quotation forms a legally binding contract that
guarantees the success of your project by utilizing only the best design and products available today.
Inspection Service Proposal
Client: Henry Moses Aquatic Center Inspection
Location: 1719 Maple Valley Hwy.
Renton, WA 98057
CRM OPP #: 46475
Legacy Project #s: 11981
Date: March 28, 2022
EXHIBIT A
Parties ............................................................................................................................................................................ 1
Proposal ........................................................................................................................................................................ 2
1.Delivery ............................................................................................................................................................ 2
2.Pricing – USD dollars ........................................................................................................................................ 2
3.Terms of Payment ........................................................................................................................................... 3
4.Schedule .......................................................................................................................................................... 3
5.Notice .............................................................................................................................................................. 3
6.Execution and Acceptance ......................................................................................................................... 4
Scope of Work & Specifications ................................................................................................................................. 5
General Terms and Conditions ................................................................................................................................... 7
Warranty ..................................................................................................................................................................... 12
Appendix 1 Insurance ............................................................................................................................................... 13
Appendix 2 Wire Transfer Information ...................................................................................................................... 14
The appendices listed above are made part of this contract and together represent the full extent of the
agreement. In case of conflict between the contract herein and any other referenced documents, the
contract takes precedence.
Inspection Service Proposal • March 28, 2022
1
Parties
This agreement is made on the latest date of signing by both parties, between:
The seller, WhiteWater West Industries Ltd. (WhiteWater)
With registered office at:
180 - 6651 Fraserwood Place
Richmond, BC V6W 1J3 Canada
Tel: +1.604.273.1068 • Fax: +1.604.273.4518
A British Columbia corporation with incorporation number BC0398274 and a resident of Canada for income
tax purpose with registration number 10567 3271 RC0001.
Formal notices to be addressed to the attention of:
Luc Benac, Commercial Manager (luc.benac@WhiteWaterwest.com)
AND
The purchaser, (Purchaser)
With registered office at:
A corporation with incorporation number
and
a resident of for income tax purpose with registration number .
Formal notices to be addressed to the attention ,
( @ )
)2(3*7)'8-32
Inspection Service Proposal • March 28, 2022
2
Proposal
1. Delivery (if applicable)
Delivery of the equipment; transfer of risk, transfer of ownership and responsibility of WhiteWater and
Purchaser strictly follow Incoterms (2010) or as might be specified, amended or clarified below:
DDP - Delivered Duty Paid (Place of Destination) as strictly defined under Incoterms (2010)
x Delivery, transfer of risk and ownership take place when the equipment is placed
at the disposal of the Purchaser ready for unloading from the mean of transportation at the
named place of destination.
x WhiteWater is responsible for export clearance and insurance against the risk of loss or damage
during the carriage which insurance will be to the benefit of WhiteWater and not endorsed to
Purchaser.
x Seller is responsible for unloading
Named Port or Place of Destination is: Renton, WA.
Detention
Purchaser agrees that it is responsible to pay or reimburse WhiteWater for any detention as a result of
Purchaser delaying unloading and return of empty containers.
2. Pricing – USD dollars
Subject to the terms of this Agreement, the Purchaser hereby orders and purchases from the supplier, and
the Supplier agrees to sell and provide to the Purchaser, the Equipment and Services for the Purchase Price,
exclusive of all taxes.
Services
Visual Inspection Service Original Price …………………………………..………………………………..... $7,250 USD
To Be Included
One Whitewater Sr. Advisor on site for 1 day to perform the following visual inspection of the following
products:
Original Project # 11981 – 54” OPEN FLUME(OF) - INNER TUBE RIDE into Pool - Slide “A”
Comprehensive inspection to review the FRP seams and joints for chips, and caulking along with columns,
arms, and yokes as per what is visually available to see.
Original Project # 11981 - POOL SIDER SLIDE (PS) – Slide “B”
Comprehensive inspection to review the FRP seams and joints for chips, and caulking along with columns,
arms, and yokes as per what is visually available to see.
Detailed report with findings and recommendations upon completion.
Sales Tax
The Purchase Price is exclusive of any sales tax (if allowed by State Law).
If project is tax exempt, we will need proof of exemption, or we will add the appropriate taxes to our
contract price as below.
The price quote is valid for forty-five (45) days.
Inspection Service Proposal • March 28, 2022
3
3. Terms of Payment
100% Prepaid 100%
Overdue payments are subject to a 1.5% per month interest charge.
4. Schedule
I. Design N/A
II. Equipment Supply N/A
III.
To Be Included
One Whitewater Sr. Advisor on site for 1 day to perform the following
visual inspection of the following products:
Original Project # 11981 – 54”OPEN FLUME(OF) - INNER TUBE RIDE into
Pool - Slide “A”
Comprehensive inspection to review the FRP seams and joints for
chips, and caulking along with columns, arms, and yokes as per
what is visually available to see.
Original Project # 11981 - POOL SIDER SLIDE (PS) – Slide “B”
Comprehensive inspection to review the FRP seams and joints for
chips, and caulking along with columns, arms, and yokes as per
what is visually available to see.
Detailed report with findings and recommendations upon
completion.
.
1 Day
5. Notice
All Communications with SELLER should be addressed to:
Name: Kelly Wilkie
Whitewater West Industries Ltd.
180 - 6651 Fraserwood Place
Richmond, BC V6W 1J3 Canada
Tel: +1.604.273.1068 • Fax: +1.604.273.4518
Email: kelly.wilkie@whitewaterwest.com
All communications with the PURCHASER should be addressed to:
Name:
Company:
Address:
Inspection Service Proposal • March 28, 2022
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Tel:
Fax:
Email:
6. Execution and Acceptance
This agreement is made on the latest date of signing by both parties. By execution of this document, the
SELLER and the PURCHASER have reviewed and agree to all terms and conditions, including the
Attachments and Appendices referenced and attached that are made part of this Agreement. The parties
acknowledge that these documents unless otherwise expressed herein represents the full extent of the
agreement.
SELLER: WHITEWATER WEST INDUSTRIES LTD.
SIGNATURE
NAME
TITLE
DATE
PURCHASER:
SIGNATURE
NAME
TITLE
DATE
Inspection Service Proposal • March 28, 2022
5
Scope of Work & Specifications
To Be Included
One Whitewater Sr. Advisor on site for 1 day to perform the following visual inspection of the following
products:
Original Project # 11981 – 54” OPEN FLUME(OF) - INNER TUBE RIDE into Pool - Slide “A”
Comprehensive inspection to review the FRP seams and joints for chips, and caulking along with columns,
arms, and yokes as per what is visually available to see.
Original Project # 11981 - POOL SIDER SLIDE (PS) – Slide “B”
Comprehensive inspection to review the FRP seams and joints for chips, and caulking along with columns,
arms, and yokes as per what is visually available to see.
Detailed report with findings and recommendations upon completion.
SPEC-IS
Specification – Inspection Services
WhiteWater agrees to:
1. Inspect WhiteWater supplied equipment (NOTE – if the slides are not designed and installed by
Whitewater, our technician can still perform the inspection of the fiberglass and indicate any
visual non-conformities on steel, however the technician will not be able to comment on
structural design.
2. Provide a report indicating whether equipment is compliant with WhiteWater’s engineering
drawings and applicable standards before the equipment is deemed ready for operations.
The Purchaser agrees that:
1. All mechanical systems and structures required to operate the ride will be complete
2. All electrical systems required to power and control the ride will be operable
3. At the purchaser’s expense, filtered and treated water will be available in advance of testing
4. Equipment to be recertified is in safe and operable condition.
5. If, because of delays caused by the Purchaser or others, and the Installation Advisor is unable to
certify the equipment during the specified duration, then all costs for return trips are reimbursable
by the Purchaser.
Slide/Tower Inspection:
The technician will inspect the slides for conformance to original design drawings and O&M Manual as well
as conformance to current standards where applicable. Conduct ride tests (if applicable) per Whitewater's
ride test guidelines. Place water level markers on all slide shutdown lanes (if applicable) and Valve Locks
and Caution Tags where deemed necessary per current standards. Technician will record water
levels/depths, gpm flow rates, flow transition locations, ride test video and various other data to ensure the
ride is "Safe for Public Use" from the perspective of the manufacturer. The technician will provide a written
report summarizing the findings and with recommendations for remedial work where deemed necessary.
If ride testing will be performed, the Technician will need 2 recording assistants (provided by customer), one
for the stopwatch and one to record video. Park staff ride the slides as you typically would for public
operation. A scale will be required to weigh riders, the weights are recorded on the top right corner of the
Data Sheet for the recorder’s use only while running tests and recording. A felt marker is required to mark
the riders ID number on their hand for recording on the data sheet when they ride. The rider’s weight can
be recorded in private, each rider will be given the corresponding number, marked this number on the
back of the rider’s hand or where practical. There should be a total of about 25 runs with a minimum of 5
runs at the upper and lower weight limits. The low limit is typically height, the upper limit is typically weight.
IS
Inspection Service Proposal • March 28, 2022
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Purchaser Requirements – Construction (PRC)
The Purchaser agrees to provide at its own cost, the following (but not limited to):
1. It is understood that enough resources and access will be supplied to WhiteWater to complete the
work in the specified duration.
a. The Purchaser shall 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
the costs for return trips are reimbursable at actual cost.
b. To provide adequate access to the site and locations of actual work for trucks, cranes, forklifts
man lifts, scaffold and other equipment necessary to perform the work.
c. 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.
d. 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.
2. To provide adequate area for equipment and for storage of the equipment, convenient to the site and
close to the final position of the equipment.
3. 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.
4. To provide adequate security to protect the construction materials, tools and equipment during the
project.
5. Required services:
a. To provide 240 x 60 amps and 120 x 30-amp electrical supplies at convenient locations within
100 ft. of work area throughout the job site to enable crews to perform the work.
b. Temporary utilities
c. Fresh water supply for our use within 30 yards of waterslide work area
d. Dumpster
e. To provide pool, slide and play structure water drainage as required for continuous workflow.
6. Adequate toilet facilities within reasonable access to the work area.
7. Adequate waste disposal containers.
8. All buildings, mechanical rooms, change rooms etc. as required for the project.
9. Adequate access to the site for trucks, cranes, forklifts, and other equipment necessary for the
service of the equipment.
10. Assume the risk of loss or theft of the construction materials, tools and equipment on site and is
responsible to provide adequate security and fencing.
11. Labor, materials, and equipment required to complete the maintenance of the water slides.
It is understood that enough qualified resources will be supplied to complete the work
within the specified duration of the Maintenance Advisory Services.
12. A qualified foreman responsible for providing the means and methods of maintenance and directing
the crew.
13. Any other expenses not specifically defined in WhiteWater’s obligations.
PRC
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7
General Terms and Conditions
1. Indemnification
a. Upon written request of Purchaser, Whitewater shall, to the fullest extent permitted by law,
indemnify, defend and hold Purchaser (including any parent, subsidiary and/or related entity of
Purchaser, as well as their officers, directors, managers, employees, agents and servants) harmless
from any claims, demands, causes of action or costs, including attorney fees, which:
x arise out of or are otherwise related to any alleged negligence or other culpable conduct of
any of its employee, subcontractor or agent of Whitewater, in connection with the assembly,
construction, installation supervision or erection of Whitewater’s equipment OR
x arise out of or are otherwise related to personal injury or death caused by a defect in the
design of, manufacture of, or warnings/instructions accompanying Whitewater’s equipment.
However, if any information reasonably supports the possibility of Purchaser error in installing,
operating, maintaining or servicing the Whitewater’s equipment or if the Whitewater’s equipment
involved in such claim or lawsuit has been altered by or on behalf of Purchaser, without the express
written consent of Whitewater, then this Defense and Indemnity Agreement shall have no force or
effect.
b. If such is the case, upon written request of Whitewater, Purchaser shall, to the fullest extent
permitted by law, defend, indemnify and hold Whitewater (including any parent, subsidiary or
related entity of Whitewater, as well as their officers, directors, managers, employees, agents and
servants) harmless from and against any claims, demands, causes of action or costs, including
attorney fees, if such claims, demands or causes of action arise out of or are otherwise related to
any alleged negligence or other culpable conduct of any employee, subcontractor, general
contractor or agent of Purchaser, in connection with the planning, approval, site preparation,
assembly, construction, installation or erection of Whitewater’s equipment.
c. If Purchaser, (including any parent, subsidiary and/or related entity of Purchaser, as well as their
officers, directors, managers, employees, agents and servants) also operates the equipment, upon
written request of Whitewater, Purchaser/Operator shall, to the fullest extent permitted by law,
defend, indemnify and hold Whitewater (including any parent, subsidiary or related entity of
Whitewater, as well as their officers, directors, managers, employees, agents and servants)
harmless from and against any claims, demands, causes of action or costs, including attorney fees,
if such claims, demands or causes of action arise out of or are otherwise related to any alleged
negligence, culpable conduct, error, or omission of Purchaser, or any third party in contract with or
under the direction or control of Purchaser:
i. in connection with the maintenance, repair, service, use or operation of the
Whitewater’s equipment ;
ii. in connection with the supervision of users of the Whitewater’s equipment ;
iii. any modification of the Whitewater’s equipment made by or on behalf of Purchaser,
except those made in accordance with the express written consent of Whitewater;
iv. any alleged negligence or other culpable conduct of users of the Whitewater’s
equipment ;
The Parties expressly recognize and agree that the Party operating the equipment is uniquely
situated and is in the best position to insure and otherwise provide for the safety of the users of the
Whitewater equipment, and to ensure that the Whitewater equipment is properly maintained and
properly used by patrons. Therefore, the Parties agree that indemnity obligations provided by the
entity operating the equipment) takes precedence over Whitewater's indemnity obligations to
Purchaser or Operator.
d. Notices - Indemnitee shall notify Indemnitor of any claim or lawsuit which Indemnitee will assert
Indemnitor might be obligated to defend under this Section within fifteen (15) days of Indemnitee's
receipt of notice of said claim or lawsuit. In addition to the forgoing, Indemnitee will use reasonable
efforts to notify Indemnitor within fifteen (15) days of obtaining facts which suggest that Indemnitor
may be obligated to defend and indemnify the Indemnitee in accordance with this provision.
Failure to provide such notice in the preceding sentence shall not void the indemnity provision
Inspection Service Proposal • March 28, 2022
8
unless Indemnitor can prove that Indemnitee's failure to so notify Indemnitor materially impaired
Indemnitor' S ability to defend any claim arising from such facts.
e. Obligation to Report Incidents - Whitewater and Purchaser/Operator agree and recognize that
timely investigation and analysis of any mishap, accident, injury, death, claim or demand is vital to
the maintenance, improvement, and safe use of the Whitewater’s equipment. Purchaser/Operator
shall report any mishap, accident or incident involving any bodily injury, damage or death, or injury
to or destruction of tangible property, to Whitewater within five (5) days of the reported incident,
regardless of whether any claim or demand for damages is made.
2. Insurance
a. Installation Project Period: Insurance
i. Without in any respect limiting Whitewater’s obligations under the Defense, Indemnity and Hold
Harmless provisions, WhiteWater, at its sole cost and expense, must provide Commercial General
Liability Insurance including coverage for Bodily Injury, Property Damage, Personal Injury Liability,
Completed Operations, Products Liability and non-owned Auto, with policy limits of liability up to
$10,000,000 per occurrence and in the aggregate. The insurance shall include coverage for
contractual indemnity for bodily injury or death or to injury or destruction of tangible property
including the loss of use resulting therefrom. Project specific limits are not included in the scope
of this agreement and if available will be in addition to contract price.
ii. Such insurance shall name as Additional Insureds the parties indemnified in the Defense,
Indemnity and Hold Harmless provisions and under the limited time frame of the Installation
Project Period. Such insurance shall provide that it is primary insurance coverage over insurance
where Purchaser is a named insured, and shall not be reduced by, nor contribute nor prorate
with any other insurance available to Purchaser where Purchaser is a named insured; and shall
contain a Waiver of Subrogation Clause. Additional Insureds are all entities where required by
written contract with the insured and to whom a certificate of insurance has been issued and for
the term specified by written contract.
iii. Such policy shall provide thirty (30) days prior written notice to the additional insureds before
termination of such policy before the end of the Installation Project Period. The additional
insured status terminates at the end of the Installation Project Period regardless of whether
notice is provided, or not. Such insurance shall be evidenced by certificates of insurance and a
copy of relevant endorsement as might apply shall be submitted with the Certificate.
iv. WhiteWater, at its sole cost and expense, must provide Employer’s Liability and Worker’s
Compensation coverage of $1,000,000 (USA coverage will be based on statutory limits for all
states excluding monopolistic states) and shall ensure that any contractor or subcontractor hired
by WhiteWater to provide services under Whitewater’s obligations per this agreement maintains
the same.
b. Post Installation Period: Insurance
i. Without in any respect limiting the parties’ obligations under the Defense, Indemnity and Hold
Harmless provisions above, the parties agree, at their sole cost and expense, to maintain
Commercial General Liability Insurance including coverage for Bodily Injury, Property Damage,
Personal Injury Liability, Completed Operations, and Products Liability, with policy limits of liability
of no less than $5,000,000 per occurrence and in the aggregate. The insurance shall include
coverage for contractual indemnity for bodily injury or death or to injury or destruction of
tangible property including the loss of use resulting therefrom. Project specific limits are not
included in the scope of this agreement and if available will be in addition to contract price.
3. Transfer of Risk and Title
a. Transfer of Risk takes place upon delivery based on Incoterms (2010) as selected under Specific
Terms and Conditions - Delivery, Transfer of Risk and Ownership of the Equipment. Transfer of Title
mirrors the transfer of risk. Where permitted by Law, Purchaser grants a security interest in the
equipment and if asked will help WhiteWater perfect such security interest.
4. Independent Contractor
a. WhiteWater shall at all times be an independent contractor in performing its obligations pursuant to
this Contract. Nothing contained in this Agreement shall in any way be construed to create an
Inspection Service Proposal • March 28, 2022
9
employer/employee relationship, agency relationship, partnership or joint venture between the
parties.
5. Safety
a. WhiteWater’ s employees, agents, representatives, independent contractors or individuals acting
under Whitewater’s direction will at all time abide and follow the Safety Procedures in place on the
project site in addition to Whitewater’s Safety Procedures.
6. Completion
a. Following installation and testing of the equipment, WhiteWater will provide Purchaser with a
Certificate of Commissioning and Substantial Completion, along with a deficiency list of unfinished
items, if any, to illustrate the Substantial Completion of the Work. Substantial Completion is defined as
the date in which the Work is ready to be used, or is being used, for the purposes for which it was
intended.
b. Both parties in writing shall agree upon the value of each item on the deficiency list. In the case
WhiteWater is responsible for Installation of the Equipment or there is any material has not yet been
delivered, the allowable dollar amount to be retained by the Purchaser after the date of
Commissioning is the total agreed upon value of the deficiencies or parts multiplied by two.
c. Total Completion is achieved when WhiteWater completes the items on the deficiency list which are
part of Whitewater’s scope of work. At such time WhiteWater shall issue a Certificate of Total
Completion to be executed by Purchaser as proof of their acceptance and full completion of the
Work.
7. Delays and Damages
a. If the project is delayed as a result of the actions of Purchaser or its affiliates, Owner (as might apply),
as well as their partners, directors, officers then the project schedule will be adjusted accordingly,
and WhiteWater will be entitled to reimbursement for its actual costs. Costs to be reimbursed will
include costs related to demobilization and mobilization of equipment, crew and/or supervisory
personnel as a result of such delay but not exclusively such.
Separate and apart from the costs set forth above, should WhiteWater be required to store work in
progress and/or finished goods for a period of more than fourteen (14) days, WhiteWater shall be
entitled reimbursement for the actual cost of such storage.
b. In no event shall one party be liable to the other or any other entity for consequential, incidental,
indirect or special damages of any type, regardless whether the party has been advised of their
applicability.
c. It is understood by both parties that delay by Purchaser in making payments when due will result in
delay in completion of subsequent milestones by WhiteWater and can increase duration of the work.
8. Change Orders
a. Without affecting the validity of any of the terms of this agreement, the parties reserve the right to
make reasonable changes to the scope of work, provided that and only when such changes are
affected through a written change order executed by both parties. Once a party formally send a
request for a change order, the other party will endeavor to review and confirm feasibility, schedule
adjustment and impact on price of the proposed change within five (5) business days of the receipt
of all the required information. If the reviewing party fails to respond, the change order will be
considered to be accepted and the requesting party will be entitled to send notice of such on the
sixth day.
b. During the initiation stage of the project, WhiteWater and Purchaser will work closely to finalize the
details of the design documented in this agreement by incorporating minor changes, if any,
necessary to proceed to the detailed engineering as per estimated schedule.
c. Once the detailed engineering has begun any proposed change will require an adjustment of
schedule and price as per Paragraph 8.a above.
9. Force Majeure
a. 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
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10
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.
10. Termination
a. The Purchaser acknowledges that once an order is placed with Whitewater, considerable expense is
incurred by Whitewater to provide the Design Services, and manufacturing the equipment and
accordingly, this Agreement may not be terminated by the Purchaser unless there is a material
default by Whitewater under this Agreement and in that case only in accordance with Section (b)
and (c) below.
b. If WhiteWater materially defaults in carrying out its duties under this Agreement, the Purchaser will
give WhiteWater notice of the default in which case WhiteWater will have ten (10) days to remedy
the default or propose a satisfactory remedy to cure the default. If WhiteWater is unable to make
such remedy, the Purchaser may elect to terminate the Agreement.
c. The Purchaser can terminate this Agreement, without cause, subject to making payment to
WhiteWater in the amount pro rata to the percentage of work performed plus 20%.
d. If the Purchaser should fail or wrongfully refuse to approve or refuse to make payment in
accordance with this Agreement, then WhiteWater may elect to terminate the contract, by notice
in writing. WhiteWater may recover from Purchaser payment for all work satisfactorily completed
and to recover all direct costs prorated from contract amounts, incurred up to the time of
termination. If Purchaser cures its nonpayment within fifteen (15) days then Whitewater’s notice of
termination will be rendered ineffective
11. Jurisdiction
a. This agreement shall be construed in accordance with, and will be subject to, the laws of the
jurisdiction in which the project is located unless stated otherwise.
12. Language
a. All official Whitewater’s communications, contractual documents and project documentation will
be issued in English which will be considered the language of the contract. Any
translation/interpretation of project documentation will be the sole responsibility of the purchaser,
unless otherwise stated in this Agreement.
13. Assignment
a. WhiteWater may not assign 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.
i. The Purchaser may not assign the contract without the written consent of WhiteWater.
14. Electronic Delivery
This Agreement may be executed and delivered in one or more counterparts and by facsimile,
electronic means or otherwise, each of which when executed and delivered will be deemed an
original, and all of which will constitute one and the same document. Facsimile signatures shall be
deemed to be original signatures.
15. Third Party Review Requirements
The Purchaser agrees that unless expressly documented in this contract, there is no requirement for a
3rd party review of design, manufacturing, installation or operation of the WhiteWater supplied
equipment. If a 3rd party review is required, and not documented in this agreement, WhiteWater will
have the opportunity to review the requirements and provide a change order to document the
change to the sell price and project schedule as a result of this inclusion.
16. Design Code and Special Design Considerations
The purchaser agrees that the standards referenced in the annexes of this agreement are the only
ones applicable to the design of this project. Any other standards, specifications, or similar
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requirements not identified in the contract will be subject to WhiteWater review and approval and
may result in a change order if approved.
17. Project Images
Purchaser shall grant WhiteWater the right to use video, picture or other representation of the
equipment and its surrounding in the possession of Purchaser and Purchaser agrees to provide such
from time to time upon reasonable request by WhiteWater. WhiteWater may also acknowledge
Purchaser in any promotional material utilizing video, picture or print material that depicts the
Attraction, including limited use of Purchaser’s trademarks, trade name and trade dress or
Purchaser’s guests’ likeness.
END OF SECTION
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Warranty
WhiteWater shall warrant supplied replacement for twelve (12) months from the date of onsite delivery from
any defects in materials; workmanship or design provided the Equipment has been maintained according
to and used in accordance with the Manual. Act of God and extreme weather events are specifically
excluded from this warranty including damages by airborne or waterborne debris. This non-transferable
warranty shall be limited to repair or replacement, at the option of WhiteWater. In no case shall WhiteWater
be liable for any consequential damages
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Appendix 1 Insurance
Commercial General Liability policy written on ISO Commercial General Liability Form CG 0001 0413 issued
by Liberty Mutual Insurance Company (A rating A.M. Best Co and Standard & Poor’s)
Policy aggregate limits excluding project or location aggregate.
General Aggregate ............................................................................................................................. $2,000,000
Products and Completed Operations Aggregate ........................................................................... $2,000,000
Personal and Advertising Injury ........................................................................................................... $2,000,000
Damage to Rented Premises .............................................................................................................. $2,000,000
Each Occurrence ................................................................................................................................. $2,000,000
Medical Expense Limit – Each Person ...................................................................................................... $10,000
Medical Expense Limit – Each Accident ................................................................................................. $25,000
Non-Owned Automobile Liability ........................................................................................................ $2,000,000
This policy provides coverage for loss or damage arising out of the use or operation of any automobile
that is not owned or that is hired, resulting from bodily injury or property damage
Professional services that are an integral part of other work performed by or on behalf of the Insured or
are incidental to the manufacture, installation, sale, handling or distribution of the Insured’s products.
All entities where required by written contract with the Named Insured and to whom a certificate of
insurance has been issued to are added as Additional Insured but only with respect to liability arising
out of the operations of the Named Insured.
Commercial general Liability is Primary and Non-Contributory and includes Contractual Liability and a
Waiver of Subrogation where required by written contract.
Workers’ compensation and Employers’ Liability policy issued by Liberty Mutual Insurance Group
Workers’ Compensation ................................................................................................................. Statutory limit
Employers’ Liability – Bodily Injury by Accident, Each Accident ..................................................... $1,000,000
Employers’ Liability – Bodily Injury by Disease, Each Employee ....................................................... $1,000,000
Employers’ Liability – Bodily Injury by Disease, Policy Limit................................................................ $1,000,000
US Longshoreman and Harbor Workers’ Compensation Act .......................................................... $1,000,000
Stop gap employers’ liability in monopolistic states (ND, OH, WA and WY)
Waiver of Subrogation where required by written contract with the Insured
Experience modification 0.79 except California 0.83
Umbrella Additional aggregate limits to Commercial General Liability and Employer’s Liability policies
Aggregate ............................................................................................................................................. $8,000,000
Each Occurrence ................................................................................................................................ $8,000,000
Should one of the above-noted policies be cancelled before their expiry date, the insurer will endeavor to
provide 30 days written notice to the certificate holder.
Inspection Service Proposal • March 28, 2022
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Appendix 2 Wire Transfer Information
Telegraphic Transfer payments are to be made by direct deposit to:
CAD FUNDS
A/C NUMBER: 734239-001
A/C NAME: Whitewater West Industries Ltd.
BANK NAME:
HSBC Bank Canada
885 W. Georgia
Vancouver, B.C.
Transit: 10020
Institution: 016
SWIFT CODE: HKBCCATT
USD FUNDS
A/C NUMBER: 734239-070
A/C NAME: Whitewater West Industries Ltd.
BANK INFORMATION:
Correspondent Bank: HSBC Bank USA
SWIFT Code MRMDUS33
Routing: 021 001 088
A/C 000050881
Beneficiary Bank: HSBC Bank Canada
885 W. Georgia
Vancouver, B.C.
Transit: 10020
Institution: 016
SWIFT CODE: HKBCCATT