Vista City Council
March 8, 2022

ACTION:
____________________________
Clerk/Secretary
Department: Recreation & Community Services Item No: C12 Prepared by: Jessica Boensch, Management Analyst Meeting Date: March 8, 2022 Approved by:

Amanda Lee, Assistant City Manager
Patrick Johnson, City Manager Agenda Location: Consent Calendar SUBJECT: THE WAVE WATERPARK SLIDE TOWER PROJECT CONTRACT AWARDS RECOMMENDATION: Adopt City Council Resolution No. 2022- , approving the contracts with Waterfun Products and Pro Building Concepts, Inc. for the Wave Waterpark Slide Tower Project.

CORRELATION TO CITY COUNCIL GOALS: Parks and Recreation.

PRIOR ACTION: On November 10, 2020, the City Council adopted Resolution 2020-192 amending the Operating Budget for Fiscal Years 2019/20 and 2020/21 and amending the Capital Project Budget for Fiscal Years 2020/21 and 2021/22 (Vote: 5-0).

On June 23, 2020, the City Council adopted Resolution 2020-107, approving the Six-Year Capital Improvement Program, the Capital Project Budget for Fiscal Years 2020/21 and 2021/22, and authorizing appropriations for Fiscal Years 2020/21 and 2021/22 capital projects (Vote: 5-0).

STATEMENT ON THE SUBJECT: In 1994, the Wave Waterpark (the Wave) opened and included a slide tower, which is still in operation. Recent inspections have determined that the slide tower needs improvements due to its age and normal wear-and-tear. The required improvements consist of the procurement and installation of materials to remove, repair, and replace the water slide, steel platforms, decks, handrails, and stair treads. The complete scope of work and cost schedule are included as ‘Exhibit A’ to the contract (included as Exhibit 2).

Waterfun Products is the only manufacturer of the specific body slide design in place at the Wave, and is the only known vendor to offer the full project design, manufacturing, and installation. Additionally, Waterfun Products works exclusively with Pro Building Concepts, Inc. as a subcontractor for installation in the region. Staff believes it is in the City's best interest to have Waterfun Products and Pro Building Concepts, Inc. complete the slide tower improvement project. Working with the manufacturer of the body slide and the original designer of the slide tower will keep the project on a timeline that will allow for full operations to resume for the Wave’s summer season in 2022 with a minimal loss of program revenue. For this reason, staff requests the standard bidding procedure be waived based on Vista Municipal Code (VMC) Sections 3.08.060B4, 3.08.150N, and 3.08.150R. The VMC Sections 3.08.064B4 and 3.08.150N enable the Purchasing Officer to waive solicitation requirements if there is only one individual, firm, or vendor that can provide or is best suited to provide the service or commodity in a timely manner In AGENDA
REPORT

CITY COUNCIL

COMMUNITY DEVELOPMENT COMMISSION

SUCCESSOR AGENCY

BUENA SANITATION DISTRICT

JOINT POWERS FINANCING AUTHORITY
03/08/2022 C12 1 of 48
Approved above recommendation, adopted City Council Resolution No. 2022-34.

Vote: 5-0

MEETING DATE: March 8, 2022 PAGE 2
SUBJECT: THE WAVE WATERPARK SLIDE TOWER PROJECT CONTRACT AWARD addition, VMC Section 3.08.150R allows the City Council, by a four-fifths vote, to approve contracts without complying with the normal bidding process when it serves the City’s interest.

Staff recommends that the City Council award two contracts for the Wave Waterpark Slide Tower Project as follows:

1.Waterfun Products for design, engineering, equipment/material procurement, and project management in the amount of $380,480.00; and

2.Pro Building Concepts, Inc. for slide tower construction and water slide installation in the amount of $341,520.00.

The project will begin as soon as possible upon City Council approval and will be completed in two phases. The slide tower structure will be completed in the first phase, which is anticipated to take no more than 90 days with incentives built into the agreement for full project completion prior to the Wave’s soft opening date of May 22, 2022. The new slide will be installed in the second phase of construction, which will begin in October 2022, and is expected to be complete in January 2023.

FISCAL IMPACT: The total cost of the Professional Services Contract with Waterfun Products is $380,480.00, and the total cost of the Construction Contract with Pro Building Concepts, Inc. is $341,520.00. Sufficient Funds are available in the Wave Waterpark Slide account (No. 5076625.578999.8327).

EXHIBITS:

1.City Council Resolution No. 2022- , approving the contracts with Waterfun Products and Pro Building Concepts, Inc. for the Wave Waterpark Slide Tower Project

2.Professional Services Contract with Waterfun Products

3.Construction Contract with Pro Building Concepts, Inc.

4.Pro Building Concepts, Inc. Payment Bond

5.Pro Building Concepts, Inc. Performance Bond

6.Sole Source Procurement Documentation
03/08/2022 C12 2 of 48

00105894 2
RESOLUTION NO. 2022-

A RESOLUTION OF THE CITY COUNCIL OF THE CHARTERED CITY OF

VISTA, CALIFORNIA, APPROVING THE CONTRACTS WITH WATERFUN PRODUCTS AND PRO BUILDING CONCEPTS, INC. FOR THE WAVE

WATERPARK SLIDE TOWER PROJECT
The City Council of the City of Vista does resolve as follows:

1.Findings. The City Council hereby finds and declares the following:

A.The Wave Waterpark requires repairs to the slide tower structure and a new water slide.

B.Waterfun Products is the only vendor known to offer the full project design, manufacturing, and installation with resulting sole source accountability and reliability.

C.Waterfun Products works exclusively with Pro Building Concepts, Inc. as the construction subcontractor in this region.

2.Action.

A.The City Council approves the Professional Services Contract with Waterfun Products in the amount of $380,480 for the Wave Waterpark Filtration System Project and the Construction Contract with Pro Building Concepts, Inc. in the amount of $341,520, and the Mayor is authorized to sign the Contract on behalf of the City.

3.Adoption. PASSED AND ADOPTED at a meeting of the City Council of the City of Vista held on March 8, 2022, by the following vote:

AYES:

NOES:

ABSTAIN:

APPROVED AS TO FORM:

DAROLD PIEPER, CITY ATTORNEY
By:

APPROVED
Darold Pieper
20220224132851

JUDY RITTER, MAYOR
ATTEST:

KATHY VALDEZ, CITY CLERK
By:
03/08/2022 C12 3 of 48
EXHIBIT 1

Professional Services (Non-Construction) (No RFP)(NPW) 1 of 9 1995324 ALBERTA LLC [51959-2] 00105908 2

CONTRACT FOR PROFESSIONAL SERVICES

THE WAVE WATERPARK SLIDE TOWER PROJECT DESIGN AND

ENGINEERING
THIS “CONTRACT” is entered into by and between the “Parties” as of ___________________ (“Contract Date”).

1.0 THE “PARTIES”
The “City”:

CITY OF VISTA, a chartered municipal
corporation
200 Civic Center Drive
Vista, CA 92084
Working Contact: Angela Palasik
Billing Contact: Angela Palasik
The “Contractor”
1995324 ALBERTA LLC, a Nevada limited
liability company dba WATERFUN

PRODUCTS
2618 San Miguel Drive, Suite 446
Newport Beach, CA 92660
Contact: Bruce Dalen

2.0 BASIC TERMS

2.1 The “Services” to be performed by Contractor are set forth in Contractor’s proposal or other document attached as Exhibit A.

2.2 The “Required License” for the Services is: Engineering License.

2.3 Contractor, an entity holding the Required License, desires to enter into this “Contract” with City for the Services.

2.4 The “Project” for which the Services are required is described in Exhibit A.

2.5 The “Contract Ceiling Price” is: $380,480.

2.6 Any references in Exhibit A to “Consultant” shall mean Contractor for the purposes of this Contract.

3.0 CONTRACT TERM

3.1 This Contract shall take effect as of the Contract Date.

3.2 This Contract shall be in effect for 12 calendar months (“Term”) from the Contract Date.

3.3 City may terminate this Contract upon 30-days’ written notice to Contractor. In such event, or upon request of City, Contractor shall assemble all City documents in the Contractor's possession, put them in order for proper filing and closing, and deliver the documents to City. In the event of termination, Contractor shall be paid for work performed to the termination date. City shall make the final determination as to the portion of tasks completed and the compensation to be paid.
03/08/2022 C12 4 of 48EXHIBIT 2

Professional Services (Non-Construction) (No RFP)(NPW) 2 of 9 1995324 ALBERTA LLC [51959-2] 00105908 2

4.0 SCOPE
Contractor shall perform all Services including, but not limited to, the furnishing of all tools, equipment, materials, software, and supplies, and for furnishing all transportation, services, including fuel, power and water, essential communications, and the performance of all labor, work or other operations, as may be required from time to time, in accordance with Exhibit A.

5.0 COMPENSATION

5.1 City shall pay Contractor for the Services to be performed as set forth in Exhibit A.

5.2 An invoice for payment shall be submitted in a form satisfactory to City. At a minimum, the invoice shall include: the purchase order number, the work order number, a description of the work performed, and a total amount.

5.3 Changes in, additions to, or deductions from the Services, including increases or decreases in any item or portion of the Services, shall be set forth in a written change order executed by City and by the Contractor which shall specify:

5.3.1 The changes, additions, and deductions to be made.

5.3.2 The increase or decrease in compensation due the Contractor, if any.

5.3.3 Adjustment in the time of completion, if any.

5.4 Contract Ceiling Price

5.4.1 In no event shall City be liable for paying more than the Contract Ceiling Price for Contractor's services rendered under this contract.

5.4.2 If it becomes foreseeable that Contractor will need to perform services such that the cumulative total of costs to City will exceed the maximum permitted by this Contract, any such cost overrun will be handled pursuant to the change order procedure in Vista Municipal Code Chapter 3.08. City and Contractor recognize that City lacks authority to exceed the cost ceiling without the express authorization of the City Council. If the maximum cost to City for this Contract is exceeded unexpectedly, payment shall be made as mutually agreeable and disputes shall be handled pursuant to this Contract, but work shall cease as soon as is reasonably feasible once the cost ceiling plus allowable change orders, if any, is exceeded.

5.5 Except as provided in Exhibit A, Contractor shall not be reimbursed for any expenses incurred in rendering services under this Contract.

6.0 CONTRACT DOCUMENTS
The Contract comprises the following documents including all additions, deletions, modifications and appendices and all addenda setting forth any modifications or interpretations of any these documents: Documents required under Exhibits A–E.
03/08/2022 C12 5 of 48

Professional Services (Non-Construction) (No RFP)(NPW) 3 of 9 1995324 ALBERTA LLC [51959-2] 00105908 2

7.0 TIME FOR COMPLETION AND COMMENCEMENT OF SERVICES
All Services under the Contract must be completed in compliance with the schedule in Exhibit A.

8.0 STANDARD OF PERFORMANCE

8.1 Contractor represents and warrants that it has the training, qualifications, experience and facilities necessary to properly perform the Services required under this Contract in a thorough, competent and professional manner. At all times Contractor shall faithfully, competently and to the best of its ability, experience and talent, perform all services described herein. In meeting its obligations under this Contract, Contractor shall employ, at a minimum, generally accepted standards and practices utilized by persons engaged in providing services similar to those required of Contractor under this Contract.

8.2 Contractor shall keep itself informed of and comply with all applicable federal, state and local laws, statutes, codes, ordinances, regulations, and rules in effect during the Term of this Contract. Contractor shall obtain any and all licenses, permits and authorizations necessary to perform the services set forth in this Contract, including any business licenses required by City. Neither City, nor any elected or appointed boards, officers, officials, employees or agents of City, shall be liable, at law or in equity, as a result of any failure of Contractor to comply with this Section.

9.0 CONTRACTOR’S STATUS; CONTRACTOR’S EMPLOYEES

9.1 Contractor shall perform the services provided for herein in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling. Contractor is not to be considered an employee of City, nor shall any employees of Contractor be considered employees of City, for any purpose. Contractor shall be under the direction and control of City staff only as to the results to be accomplished. This Contract is not intended to create the relationship of partnership, joint venture, or association between City and Contractor.

9.2 Contractor represents and warrants that all professional services required under this Contract shall be provided by a person or persons duly licensed by the State of California to provide those types of services.

9.3 Neither Contractor, nor any of Contractor's officers, employees or agents, shall obtain any rights to retirement, health care or any other benefits which may otherwise accrue to City’s employees. Contractor expressly waives any claim Contractor may have to any such rights.

9.4 Contractor is aware of the requirements of the Immigration Reform and Control Act of 1986 and shall comply with those requirements, including, but not limited to, verifying the eligibility for employment of all of Contractor’s officers, employees, agents and subcontractors that are included in this Contract.

9.5 The payment made to Contractor pursuant to this Contract shall be the full and complete compensation to which Contractor and Contractor’s officers, employees, agents, and subcontractors are entitled for performance of any work under this contract. Neither Contractor nor Contractor’s officers or employees are entitled to any salary or wages, or retirement, health, leave or other fringe benefits applicable to employees of the City. City will not make any federal 03/08/2022 C12 6 of 48

Professional Services (Non-Construction) (No RFP)(NPW) 4 of 9 1995324 ALBERTA LLC [51959-2] 00105908 2
or state tax withholdings on behalf of Contractor. City shall not be required to pay any workers' compensation insurance on behalf of Contractor.

9.6 Contractor agrees to defend and indemnify City for any obligation, claim, suit or demand for tax, retirement contribution including any contribution to the Public Employees Retirement System (PERS), social security, salary or wages, overtime payment, or workers' compensation payment which City may be required to make on behalf of Contractor or any employee of Contractor, or any employee of Contractor construed to be an employee of City, for work done under this contract. This is a continuing obligation that survives the termination of this Contract.

10.0 CIVIL RIGHTS

10.1 Contractor agrees to comply with Title VII of the Civil Rights Act of 1964, as amended, the California Fair Employment Practices Act, the Americans with Disabilities Act of 1990, any other applicable federal and state laws and regulations hereinafter enacted.

10.2 Contractor shall not knowingly deny an opportunity or benefit, discriminate against or harass, any employee or applicant for employment on account of the person’s race, color, ethnicity, national origin, ancestry, religion, creed, veteran status, physical disability, mental disability, medical condition, marital status, sex, sexual orientation, age, or other status protected from workplace discrimination by state or federal law.

10.3 Contractor shall not knowingly give preferential treatment to any applicant for employment on the basis of race, color, ethnicity, national origin, ancestry, religion, creed, physical disability, mental disability, medical condition, marital status, sex, or sexual orientation.

10.4 This section shall be interpreted in a manner that is consistent with the California and United States Constitutions and applicable state and federal statutes governing workplace discrimination. The terms used in this section shall have the same meaning as defined in state statutes governing the same subject matter.

10.5 Nothing in this section shall be interpreted as prohibiting bona fide occupational qualifications consistent with applicable state and federal law and reasonably necessary to the normal operation of Contractor. Nothing in this section shall be interpreted as prohibiting regulations and policies to prevent nepotism or conflicts of interest.

10.6 Nothing in this Section shall be interpreted as prohibiting action taken to establish or maintain eligibility for any federal program, where ineligibility would result in a loss of federal funds to City.

10.7 To the fullest extent permitted by law and without limitation by the other provisions of this Contract relating to indemnification and insurance, Contractor shall also indemnify, defend and hold harmless City, and its directors, officers, employees and agents from and against all liability (including without limitation all claims, damages, penalties, fines, and judgments, associated investigation and administrative expenses, and defense costs, including but not limited to reasonable attorneys' fees, court costs, and costs of alternative dispute resolution) resulting from any claim of discrimination or harassment, including but not limited to sexual harassment, arising from the conduct of the Contractor or any of the Contractor’s officers, employees, agents, licensees, or subcontractors. In the event of a discrimination or harassment complaint against any employee, agent, licensee or 03/08/2022 C12 7 of 48

Professional Services (Non-Construction) (No RFP)(NPW) 5 of 9 1995324 ALBERTA LLC [51959-2] 00105908 2
subcontractors of Contractor or its subcontractors, Contractor shall take immediate and appropriate action in response to such complaint, including, but not limited to termination or appropriate discipline of any responsible employee, agent, licensee or subcontractors. The provisions of this Section survive completion of the services or termination of the Contract.

11.0 CONTROL OF SERVICES
Each Party shall appoint a representative who shall have the authority to represent and act for that Party (“Representative”). Any written or verbal directions or requests of City's Representative delivered to the Contractor’s Representative shall have the same force and effect as if delivered to the Contractor. The Contractor's Representative shall have the authority to sign any change order, coordinate the work of all subcontractors and make other decisions pertaining to the Contract.

12.0 ASSIGNMENT AND SUBCONSULTING

12.1 Neither this Contract nor any interest herein may be transferred, assigned, conveyed, hypothecated or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of the City. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty-five (25%) of the present ownership and/or control of Contractor, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Contract shall be void. No approved transfer shall release the Contractor or any surety of Contractor of any liability hereunder without the express consent of City.

12.2 Contractor shall be fully responsible to the City for any acts and omissions of Contractor's subcontractor, including persons either directly or indirectly employed by subcontractor, in the event Contractor subcontracts any of the work to be performed under this contract. Contractor's responsibility under this paragraph shall be identical to Contractor's liability for acts and omissions of Contractor and employees of the Contractor. Nothing contained in this Contract shall create any contractual relationship between City and any subcontractor of Contractor, but Contractor shall bind every subcontractor and every subcontractor of a subcontractor by the terms of this contract applicable to Contractor's work, unless such change, omission, or addition is approved in advance in writing by the City Manager or the City Manager’s designee. All subcontractors are subject to the prior written review and approval of the City Manager or the City Manager’s designee.

13.0 LICENSES
If a license of any kind, which term is intended to include evidence of registration, is required of Contractor, its employees, agents, or subcontractors by federal, state or local law, Contractor warrants that such license has been obtained, is valid and in good standing, and that any required bond has been posted in accordance with all applicable laws and regulations.

14.0 FINANCIAL` RECORDS

14.1 Contractor shall maintain any and all documents, ledgers, books of account, invoices, vouchers, canceled checks, or records demonstrating or relating to Contractor’s performance of services pursuant to this Contract or evidencing or relating to expenditures and disbursements charged to City pursuant to this Contract. Any and all such documents or records shall be maintained in accordance with generally accepted accounting principles and shall be sufficiently complete and detailed so as to permit an accurate evaluation of the services 03/08/2022 C12 8 of 48

Professional Services (Non-Construction) (No RFP)(NPW) 6 of 9 1995324 ALBERTA LLC [51959-2] 00105908 2
provided by Contractor pursuant to this Contract. Any and all such documents or records shall be maintained for three years from the date of execution of this Contract and to the extent required by laws relating to audits of public agencies and their expenditures. It is expressly understood and agreed that the provisions of this Section will survive termination of this Contract.

14.2 Any and all records or documents required to be maintained pursuant to this Section shall be made available for inspection, audit and copying, at any time during regular business hours, upon request by City or its designated representative. Copies of such documents or records shall be provided directly to the City for inspection, audit and copying when it is practical to do so; otherwise, unless an alternative is mutually agreed upon, such documents and records shall be made available at Contractor's address indicated for receipt of notices in this Contract or the primary location from which services are rendered, whichever is closer.

15.0 OWNERSHIP OF DOCUMENTS
Upon delivery, the work product, including without limitation, all original reports, writings, recordings, drawings, files, and detailed calculations developed under this contract are the property of City. Contractor agrees that all copyrights which arise from creation of the work pursuant to this contract shall be vested in City and waives and relinquishes all claims to copyright or other intellectual property rights in favor of City. City acknowledges that its use of the work product is limited to the purposes contemplated by the scope of Services and that Contractor makes no representation of the suitability of the work product for use in or application to circumstances not contemplated by the scope of Services.

16.0 CONFIDENTIALITY

16.1 Contractor shall treat all information obtained from City in the performance of this Contract as confidential and proprietary to City. Contractor shall treat all records and work product prepared or maintained by Contractor in the performance of this Contract as confidential.

16.2 Contractor agrees that it will not use any information obtained as a consequence of the performance of work for any purpose other than fulfillment of Contractor’s scope of Services. Contractor will not disclose any information prepared for City, or obtained from City or obtained as a consequence of the performance of work to any person other than City, or its own employees, agents or subcontractors who have a need for the information for the performance of Services under this Contract unless such disclosure is specifically authorized in writing by City.

16.3 Contractor’s obligations under this paragraph shall survive the termination of this Contract.

17.0 CONFLICT OF INTEREST REQUIREMENT
Contractor agrees that, to the extent applicable, it shall comply with and be bound by all laws and regulations deriving from the relationship of the Contractor to the City, including the Political Reform Act (Government Codes Section 87100 et seq.) Chapters 2.32 or 2.33 of the Vista Municipal Code, the Community Redevelopment Act (Health & Safety Code 33000 et seq.) and all regulations promulgated thereunder (collectively “Conflict Laws”). As a condition precedent to the formation of this Contract, Contractor warrants and covenants that it is adequately informed 03/08/2022 C12 9 of 48

Professional Services (Non-Construction) (No RFP)(NPW) 7 of 9 1995324 ALBERTA LLC [51959-2] 00105908 2
regarding the obligations and duties imposed by the Conflict Laws and that to the best of Contractor's knowledge and belief, there exists no conflict of interest (under the laws) that would disqualify the Contractor from participation in any decisions arising out of the performance of this Contract. Prior to commencement of any work in the performance of this Contract, Contractor shall comply with any applicable requirements of Chapter 2.32 of the Vista Municipal Code, including any requirement to file a financial disclosure statement with the City Clerk.

Contractor further agrees that no employee, agent or subcontractor for Contractor shall perform any work for the City pursuant to this Contract which will violate the Conflict Laws.

18.0 PROHIBITION OF FINANCIAL INTEREST BY CITY OFFICIAL Contractor warrants and covenants to City that no City Official has or will have any current or future financial interest in this Contract as of the date approved, nor shall Contractor promise, offer, or enter into any written, oral or implied Contract, to provide any financial interest or remuneration of any kind or manner to any City official with respect to this Contract. For purposes of this Section, the term “City Official” shall mean and include any elected or appointed officer of City, any employee of City, or any spouse or financial dependent of a City official or employee. A violation of this provision shall render this Contract null and void and Contractor shall be subject to restitution of all fees or money paid or earned under this Contract.

19.0 DUTY OF INDEMNIFICATION

19.1 To the fullest extent permitted by law, Contractor shall (1) immediately defend and (2) indemnify City, and its directors, officers, and employees from and against all liabilities regardless of nature or type that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of Contractor, or its employees, agents, or subcontractors.

Liabilities subject to the duties to defend and indemnify include, without limitation, all claims, losses, damages, penalties, fines, and judgments; associated investigation and administrative expenses; defense costs, including but not limited to reasonable attorneys’ fees; court costs; and costs of alternative dispute resolution (“Duty of Indemnification”). Contractor’s obligations to both defend and indemnify apply unless it is finally adjudicated that the liability or liabilities, in whole or in part, do not arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of Contractor or its employees, agents, or subcontractors. Defense counsel shall be approved by City.

19.2 The review, acceptance or approval of Contractor’s work or work product by any indemnified party shall not affect, relieve or reduce Contractor’s indemnification or defense obligations. This Section survives completion of the services or the termination of this contract.

The provisions of this Section are not limited by and do not affect the provisions of this contract relating to insurance.

19.3 Contractor’s costs of defense shall not exceed Contractor’s proportionate percentage of fault as adjudicated by a court of law, as required by California Civil Code section 2782.8.

20.0 INSURANCE AND BONDS
Contractor shall comply with the insurance provisions set forth in Exhibit C.

21.0 SERVICE OF NOTICE

21.1 Any notice, which either Party may desire to give to the other Party, must be in writing and may be given by personal delivery to the Party’s Representative or by overnight 03/08/2022 C12 10 of 48

Professional Services (Non-Construction) (No RFP)(NPW) 8 of 9 1995324 ALBERTA LLC [51959-2] 00105908 2
courier service to the Party’s address set forth in Section 1.0. Notice may also be given by mailing it by registered or certified mail, return receipt requested, to the other Party at the address set forth in Section 1.0. Any notice given by mail will be deemed given 48 hours after such notice is deposited in the United States mail, addressed as provided with postage fully prepaid.

21.2 A Party may change its address by giving notice as provided above, and the changed address shall thereafter be deemed to be the address set forth in Section 1.0.

22.0 SPECIAL PROVISIONS
This Contract is subject to, and Contractor shall comply with, the special provisions referenced in Exhibit E, if any.

23.0 EXHIBITS
All documents referenced as exhibits in this Contract, or referenced in an exhibit to this Contract, are incorporated herein.

24.0 APPLICABLE LAW, VENUE
This Contract shall be construed and enforced under the laws of the State of California. If any action is commenced by any Party to this Contract, such action shall be filed in a court of competent jurisdiction within the County of San Diego, California.

25.0 MODIFICATIONS
This Contract contains the entire agreement, between the Parties and supersedes all prior negotiations, discussions, obligations and rights of the Parties in respect of each other regarding the subject matter of this Contract. There is no other written or oral understanding between the Parties. No modification, amendment or alteration of this Contract shall be valid unless it is in writing and signed by all Parties.

[Continued on page 9.]
03/08/2022 C12 11 of 48

Professional Services (Non-Construction) (No RFP)(NPW) 9 of 9 1995324 ALBERTA LLC [51959-2] 00105908 2

26.0 EXECUTION
IN WITNESS WHEREOF; the Parties hereto have executed this Contract as of the Contract Date.

“City”

CITY OF VISTA, a chartered municipal
corporation

By:

JUDY RITTER, MAYOR

ATTEST:

KATHY VALDEZ, CITY CLERK

By:

APPROVED AS TO FORM:

DAROLD PIEPER, CITY ATTORNEY

By:

RISK MANAGEMENT REVIEW:

DOLORES GASCON, RISK MANAGER

By:

APPROVED
Darold Pieper
20220224152646

“Contractor”

1995324 ALBERTA LLC, a Nevada limited
liability company dba WATERFUN PRODUCTS

By:

Name/Title

By:

Name/Title

03/08/2022 C12 12 of 48

00105908 2 Exhibit A

EXHIBIT A
CONTRACTOR’S PROPOSAL

03/08/2022 C12 13 of 48

BID SCHEDULE

PROJECT NAME: THE WAVE WATERPARK SLIDE TOWER PROJECT (C.I.P. No. 8327)

NAME OF BIDDER: 1995324 Alberta LLC

Base Bid Items

Bid
Item Description Of Work Qty. Unit Unit Price Item Total

GENERAL
1 Supply Aquawiz 30” waterslide (white)
including freight to jobsite, taxes, duty, etc. 1 EA $232,180 2 Provide project design, engineering, project
management, project permits, taxes, and
duties for the Project.
1 LS $148,300

TOTAL BASE BID FOR IMPROVEMENTS (in figures): _$380,480.00______________________________

CONSTRUCTION MATERIALS AND PROJECT MANAGEMENT NOTE:

All work to be performed per 2021 Greenbook Standard Specifications for Public Works Construction and the San Diego Regional Standard Drawings. Payment dependent upon Building License approval.

03/08/2022 C12 14 of 48

00105908 2 Exhibit B

EXHIBIT B

NOT APPLICABLE TO THIS CONTRACT

03/08/2022 C12 15 of 48

00105908 2 Exhibit C, Page 1 of 3

EXHIBIT C

INSURANCE REQUIREMENTS
Contractor shall procure and maintain for the duration of the contract, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Contractor, his agents, representatives, employees, or subcontractors. Nothing in these provisions shall limit Contractor’s Duty of Indemnification.

MINIMUM SCOPE AND LIMIT OF INSURANCE
Coverage shall be at least as broad as:

1. Commercial General Liability (“CGL”): Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis, including products, completed operations, property damage, bodily injury, and personal & advertising injury with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this Project/location or the general aggregate limit shall be twice the required occurrence limit.

2. Automobile Liability: Insurance Services Office Form Number CA 0001 covering Code 1 (any auto), with limits no less than $2,000,000 per accident for bodily injury and property damage.

3. Workers’ Compensation insurance as required by the State of California, with Statutory Limits, and Employers’ Liability insurance with a limit of no less than $1,000,000 per accident for bodily injury or disease.

Contractor shall also provide the additional coverages checked below and at least as broad as:

4. Professional Liability, with limits no less than $1,000,000 per occurrence or claim, and $2,000,000 policy aggregate.

If the Contractor maintains higher limits than the minimums shown above, City requires and shall be entitled to coverage for the higher limits maintained by the Contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to City.

Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by City. At the option of City, either: the Contractor shall cause the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City, its officers, officials, employees, and volunteers; or the Contractor shall provide a financial guarantee satisfactory to City guaranteeing payment of losses and related investigations, claim administration, and defense expenses.

Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions:

1. The City, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of with respect 03/08/2022 C12 16 of 48

00105908 2 Exhibit C, Page 2 of 3
to liability arising out of work or operations performed by or on behalf of the Contractor including materials, parts, or equipment furnished in connection with such work or operations and automobiles owned, leased, hired, or borrowed by or on behalf of the Contractor. General liability coverage can be provided in the form of an endorsement to the Contractor’s insurance (at least as broad as ISO Form CG 20 10, CG 11 85 or both CG 20 10 and CG 20 37 forms if later revisions used), unless otherwise approved in advance by City.

2. For any claims related to this Project, the Contractor’s insurance coverage shall be primary insurance as respects City, its officers, officials, employees, and volunteers.

Any insurance or self-insurance maintained by City, its officers, officials, employees, and volunteers shall be excess of the Contractor’s insurance and shall not contribute with it.

3. Each insurance policy required by this clause shall provide that coverage shall not be canceled, except with notice to City.

Claims Made Policies
If any coverage required is written on a claims-made coverage form:

1. The retroactive date must be shown, and this date must be before the execution date of the contract or the beginning of contract work.

2. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of contract work.

3. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a retroactive date prior to the contract effective, or start of work date, the Contractor must purchase extended reporting period coverage for a minimum of five (5) years after completion of contract work.

4. A copy of the claims reporting requirements must be submitted to City for review.

Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best rating of no less than A: VII, unless otherwise acceptable to City.

Waiver of Subrogation
Contractor hereby agrees to waive rights of subrogation which any insurer of Contractor may acquire from Contractor by virtue of the payment of any loss. Contractor agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation. The Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of City for all work performed by the Contractor, its employees, agents and subcontractors.

Verification of Coverage
Contractor shall furnish City with original certificates and amendatory endorsements, or copies of the applicable insurance language, effecting coverage required by this contract. All certificates and endorsements are to be received and approved by City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Contractor’s obligation to provide them. City reserves the right to require 03/08/2022 C12 17 of 48

00105908 2 Exhibit C, Page 3 of 3
complete, certified copies of all required insurance policies, including endorsements, required by these specifications, at any time.

Subcontractors
Contractor shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Contractor shall ensure that City is an additional insured on insurance required from subcontractors. For CGL coverage, subcontractors shall provide coverage with a format least as broad as CG 20 38 04 13.

Special Risks or Circumstances
City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other circumstances.

03/08/2022 C12 18 of 48

00105908 2 Exhibit D

AGREEMENT TO COMPLY WITH CALIFORNIA LABOR LAW REQUIREMENTS [Labor Code §§ 1720, 1771.1, 1773.8, 1775, 1776, 1777.5, 1813, 1860, 1861, 3700]

NOT APPLICABLE TO THIS CONTRACT

03/08/2022 C12 19 of 48

00105908 2 Exhibit E

EXHIBIT E

SPECIAL PROVISIONS
This Contract is subject to the following provisions, if checked:

1. State of California grant conditions, as attached.

2. Federal grant conditions, as attached.

3. Other conditions, as attached.

03/08/2022 C12 20 of 48

CONSTRUCTION CONTRACT (NB-PW) [52253-1] 1 of 9 PRO BUILDING CONCEPTS, INC. 00105910 2

CONSTRUCTION CONTRACT FOR

THE WAVE WATERPARK SLIDE TOWER PROJECT
THIS CONTRACT is entered into by and between the Parties as of ______________________ (“Contract Date”).

1.0 THE “PARTIES”:

The “City”:

CITY OF VISTA, a chartered municipal
corporation
200 Civic Center Drive
Vista, CA 92084
Working Contact: Angela Palasik
Billing Contract: Angela Palasik
The “Contractor”:

PRO BUILDING CONCEPTS, INC., a
California corporation
8097 Sunset Rose Drive
Corona, CA 92883
Contact: Tristen David Velarde

2.0 BASIC TERMS

2.1 City is authorized under Chapter 3.08 the Vista Municipal Code to enter into an informally-bid contract with Contractor.

2.2 Contractor has submitted to City a proposal dated February 14, 2022 (“Exhibit A”).

2.3 The “Work” to be performed by Contractor is set forth in Exhibit A.

2.4 The “Required License” for the Work is B-General Building.

2.5 Contractor, a contractor holding the Required License, desires to enter into this “Contract” with the City for the Work.

2.6 The “Contract Price” for the Work is $341,520.

3.0 TIME FOR COMPLETION AND COMMENCEMENT OF SERVICES

3.1 This Contract shall take effect as of the Contract Date.

3.2 The Work for Phase 1 of the Project, as outlined in Exhibit A, shall be completed no later than 90 working from the Contract Date. The Work for Phase 2 of the Project, as outlined in Exhibit A, shall begin on October 3, 2022, and shall be completed no later than 120 working days. (“Contract Time”).

3.3 Time is of the essence in this Contract. “Liquidated Damages” for failure to complete the Contract within the Contract Time are $500 per calendar day. The Liquidated Damages compensate for the loss to City resulting from Contractor’s failure to complete the Work with the Contract Time and for the value of the operation of the Work following completion.

It is expressly understood and agreed that this amount is a reasonable amount and is 03/08/2022 C12 21 of 48
EXHIBIT 3

CONSTRUCTION CONTRACT (NB-PW) [52253-1] 2 of 9 PRO BUILDING CONCEPTS, INC. 00105910 2
established in lieu of damages that are incapable of calculation at the inception hereof; and this amount is not to be considered in the nature of a penalty.

3.4 If the City’s Project Acceptance Form is signed by both parties by May 21, 2022, the City shall pay the Contractor at the time of Final Payment a Performance Bonus of Ten Thousand Dollars ($10,000.00).

4.0 EXECUTION OF ADDITIONAL DOCUMENTS
As a condition precedent to the effectiveness of this Contract, the Contractor shall execute and deliver to City the following checked document packages:

1. Contractor’s Forms

2. Labor Law Compliance Form, Exhibit D (This Contract requires the payment of prevailing wages.)

5.0 SCOPE
Contractor shall perform all Work including, but not limited to, the furnishing of all tools, equipment, materials, supplies and manufactured articles, and for furnishing all transportation, services, including fuel, power and water, essential communications, and the performance of all labor, work or other operations, as may be required from time to time upon the issuance of a Work Order for the fulfillment of each specific task to be performed under the Contract (“Project”), in strict accordance with the Contractor's proposal dated [proposal date] (“Exhibit B”). The Work shall be complete, and all work, material and services not expressly called for in the Proposal which may be necessary for complete and proper construction to carry out the Contract in good faith, shall be performed, furnished and installed by the Contractor at no increase in cost to the City. In the event of a conflict between the provisions of Exhibit A and Exhibit B, the provisions of Exhibit A shall control.

6.0 COMPENSATION

6.1 City shall pay Contractor the Contract Price for the successful performance of the Work within the Contract Time.

6.2 An invoice for payment shall be submitted in a form satisfactory to the City. At a minimum, the invoice shall include: the purchase order number, the work order number, a description of the work performed, and a total amount.

6.3 Changes in, additions to, or deductions from the Work, including increases or decreases in the quantity of any item or portion of the Work, shall be set forth in a written change order executed by the City and by the Contractor which shall specify:

6.3.1 The changes, additions, and deductions to be made.

6.3.2 The increase or decrease in compensation due the Contractor, if any.

6.3.3 Adjustment in the time of completion, if any.

03/08/2022 C12 22 of 48

CONSTRUCTION CONTRACT (NB-PW) [52253-1] 3 of 9 PRO BUILDING CONCEPTS, INC. 00105910 2

6.4 Adjustments in the compensation due the Contractor shall be determined by mutually agreeable lump-sum. If requested by the City's Representative, the Contractor shall furnish an itemized breakdown of the quantities and prices used in computing proposed lump- sum.

6.5 Payment of the undisputed final Contract amount is contingent upon the Contractor furnishing the City with a release of all claims against the City arising by virtue of the Contract related to that amount. Disputed Contract claims in stated amounts may be specifically excluded by the Contractor from the operation of the release.

6.6 In addition to the amount which the City may retain under the above article on progress payments, the City may withhold a sufficient amount or amounts from any payment otherwise due to the Contractor as in its judgment may be necessary to cover:

6.6.1 Payments which may be past due and payable for just claims against the Contractor or any subcontractors for labor or materials furnished in or about the performance of the Work under this Contract.

6.6.2 Estimated or actual costs for correcting defective work not remedied.

6.6.3 Amounts claimed by the City as forfeiture due to delay or other offsets.

6.6.4 Estimated or actual costs for emergency work by City forces, which is a result of the Contractor's neglect or actions.

6.7 The City may apply such withheld amounts or amounts to the payment of such claims at its discretion. In so doing, the City shall be deemed the agent of the Contractor, and any payments so made by the City shall be considered as a payment made under the Contract by the City to the Contractor, and the City shall not be liable to the Contractor for such payment made in good faith. Such payments may be made without prior judicial determination of the claim or claims. The City will render to the Contractor a proper account of such funds disbursed in behalf of the Contractor.

6.8 Contract Ceiling Price

6.8.1 In no event shall City be liable for paying more than the Contract Ceiling Price [annually] for Contractor's services rendered under this Contract.

6.8.2 If it becomes foreseeable that Contractor will need to perform services such that the cumulative total of costs to the City will exceed the maximum permitted by this Agreement, any such cost overrun will be handled pursuant to the change order procedure in Chapter 3.08. City and Contractor recognize that the City lacks authority to exceed the cost ceiling without the express authorization of the City Council. If the maximum cost to the City for this Agreement is exceeded unexpectedly, payment shall be made as mutually agreeable and disputes shall be handled pursuant to this Agreement, but work shall cease as soon as is reasonably feasible once the cost ceiling plus allowable change orders, if any, is exceeded.

03/08/2022 C12 23 of 48

CONSTRUCTION CONTRACT (NB-PW) [52253-1] 4 of 9 PRO BUILDING CONCEPTS, INC. 00105910 2

7.0 CONTRACT DOCUMENTS
The Contract comprises the following documents including all additions, deletions, modifications and appendices and all addenda setting forth any modifications or interpretations of any these documents: Documents required under Section 4, Exhibits A–D, and the Standard Specifications (defined below).

8.0 STANDARD SPECIFICATIONS AND STANDARD PLANS

8.1 Except as otherwise provided, whenever reference is made to “Standard Specifications”, it shall mean:

Standard Specifications for Public Works Construction, most current edition and supplement, as last amended, with Regional Supplements, written and promulgated by Southern California Chapter, American Public Works Association, and Southern California District, Associated General Contractors of California, Joint Cooperative Committee (“Greenbook”) and the City of Vista Special Provisions to the Greenbook.

8.2 Except as otherwise provided, whenever reference is made to “Standard Plans”, it shall mean:

San Diego Area Regional Standard Drawings, and City of Vista Standard Drawings, latest edition, unless otherwise noted.

9.0 SUPPLEMENTARY DEFINITIONS
In addition to or in lieu of the terms and definitions specified in Section 1-2 of the Standard Specifications, wherever the following terms and definitions are used, the intent and meaning shall be as follows:

Board: The City Council of the City of Vista.

City: The City of Vista.

Drawings or Plans: All drawings, plans, maps, profiles and diagrams delineating the work on the Work.

10.0 ADDITIONAL DRAWINGS
When appropriate, the Contractor will be furnished sufficient sets of drawings to properly complete the Work. There will be no charge for such drawings and specifications.

11.0 INTERPRETATION OF DRAWINGS AND SPECIFICATIONS

11.1 Figured dimensions on drawings shall govern, but work not dimensioned shall be as directed. Work not particularly shown or specified shall be the same as similar parts that are shown or specified. Large scale details shall take precedence over smaller scale drawings as to shape and details of construction. Specifications shall govern as to materials, workmanship and installation procedures. Drawings and specifications are intended to be fully cooperative and to agree. The specification calling for the higher quality material or workmanship shall prevail. In 03/08/2022 C12 24 of 48

CONSTRUCTION CONTRACT (NB-PW) [52253-1] 5 of 9 PRO BUILDING CONCEPTS, INC. 00105910 2
the event of any discrepancy between any drawings and the figures thereon, the figures shall be taken as correct. In the event of any doubt or question arising respecting the true meaning of the specifications, reference shall be made to the City Engineer whose decision thereon shall be final.

11.2 The Standard Specifications shall apply for materials and methods of construction not specifically or otherwise shown or specified in the Project drawings and specifications.

12.0 CONTROL OF SERVICES

12.1 Representatives. Each Party shall appoint a representative who shall have the authority to represent and act for that Party (“Representative”). Any written or verbal directions or requests of the City's Representative delivered to the Contractor’s Representative shall have the same force and effect as if delivered to the Contractor. The Contractor's Representative shall have the authority to sign any change order, coordinate the work of all subcontractors and make other decisions pertaining to the Contract.

12.2 Superintendence. The Contractor shall designate in writing a competent supervisor for the Work who must be personally present on the premises where the work on the Work is performed. When work is not in progress and during periods when the work is suspended, arrangements acceptable to the City's Representative shall be made for any emergency work that may be required.

12.3 Advance Notification. It shall be the Contractor's responsibility to determine and notify those agencies requiring advance notification for inspection or other purposes before beginning construction in any area of concern to that agency. A minimum of 48 hours’ advance notice shall be given to the various agencies before beginning construction in the area unless specific advance times and requirements are stated in the Special Provisions or required by the agency. The names and telephone numbers for the respective agencies are listed on the drawings, in the Special Provisions, in the Work Order, or will be otherwise provided as applicable.

12.4 Inspection. The City's Representative shall at all times have access to the work during construction, and shall be furnished with every reasonable facility for ascertaining full knowledge respecting the progress, workmanship and character of materials and equipment used and employed in the work. Whenever the Contractor varies the period during which work is carried on each day, it shall give due notice to the City's Representative so that inspection may be provided. Any work done in the absence of the City's Representative will be subject to rejection. All installations which are to be backfilled or otherwise covered shall be inspected by the City's Representative prior to backfilling or covering, and the Contractor shall give due notice in advance of backfilling or covering to the City's Representative so that inspection may be provided. The inspection of the work shall not relieve the Contractor of any of its obligations to fulfill the Contract as prescribed. Defective work shall be made good, and unsuitable materials and equipment may be rejected notwithstanding the fact that such defective work and unsuitable materials and equipment have been previously inspected by the City's Representative or that payment therefore has been included in an estimate for payment.

12.5 Preservation of Property. The Contractor shall exercise due care to avoid injury to existing improvements or facilities, utility facilities, and adjacent property. All buildings and structures and any other improvements or facilities within or adjacent to the work shall be 03/08/2022 C12 25 of 48

CONSTRUCTION CONTRACT (NB-PW) [52253-1] 6 of 9 PRO BUILDING CONCEPTS, INC. 00105910 2
protected from injury or damage, and the Contractor shall provide and install suitable safeguards to protect such objects from injury or damage. If such objects are injured or damaged by reason of the Contractor's operation, they shall be replaced or restored at the Contractor's expense to a condition as good as when the Contractor entered upon the work or as good as required by the drawings and specifications if any such objects are a part of the work being performed.

12.6 Emergency. In an emergency affecting the safety of life or property, including adjoining property, the Contractor, without special instructions or authorizations, is authorized to act at its discretion to prevent such threatened loss or injury, and it shall so act as though instructed to do so by the City.

13.0 EXISTING UTILITIES AND IMPROVEMENTS

13.1 If the Contractor while performing the Contract discovers utility facilities not identified by the City in the Contract drawings or specifications, it shall immediately notify the City in writing.

13.2 The fact that existing utilities and improvements, either above or below the ground surface, are not shown in any drawings shall not relieve the Contractor of liability for complete and careful protection of said improvements from damage as specified herein.

13.3 All repairs to damaged utilities and improvements shall be inspected and approved by an authorized representative of the City before being concealed by backfill or other work.

14.0 UTILITY SERVICE INTERRUPTION
In all cases of alteration or relocation of service connections, the Contractor shall notify the City a minimum of four hours prior to said alteration or relocation, and service connection shall be returned to service in an amount of time not to exceed four hours.

15.0 MAINTENANCE AND GUARANTY

15.1 The Contractor hereby guarantees that all work performed by it under the Contract will fully meet all requirements of the Contract as to quality of workmanship and materials furnished by it. The Contractor hereby agrees to make at its own expense any repairs or replacements made necessary by defects in materials or workmanship supplied by it that become evident within one year after the date of final payment, and to restore to full compliance, with the requirements of these specifications part of the Work which during the one- year period is found to be deficient with respect to any provisions of the specifications.

15.2 The Contractor shall make all repairs and replacements promptly upon the receipt of written order from the City. If the Contractor fails to make such repairs and replacements promptly, the City may do the work and the Contractor and its surety shall be liable to the City for the cost thereof.

16.0 INDEMNIFICATION & WAIVER OF SUBROGATION

16.1 Contractor shall defend, indemnify and hold City and its officers, officials, employees, and volunteers (“Indemnitees”) harmless against any and all liability, loss, 03/08/2022 C12 26 of 48

CONSTRUCTION CONTRACT (NB-PW) [52253-1] 7 of 9 PRO BUILDING CONCEPTS, INC. 00105910 2
damage, fine, penalty, expense, claim or cost (including without limitation costs and fees of litigation) of every nature (collectively, “Liability”) arising out of or in connection with this Agreement or its performance except: (1) Liability caused by City's sole negligence or willful misconduct; or (2) for Liability caused by City's active negligence, in which case the indemnity received by City shall be reduced by the amount: (i) that City's active negligence contributed to the Liability on a comparative basis; or (ii) such other amount as may be required by law (“Duty of Indemnification”). This Duty of Indemnification is effective without reference to the existence or applicability of any insurance coverages which may have been required under this Agreement or any additional insured endorsements which may extend to Indemnitees.

16.2 Contractor, on behalf of itself and all parties claiming under or through it, hereby waives all rights of subrogation and contribution against the Indemnitees, while acting within the scope of their duties, from all claims, losses and liabilities arising out of or incident to activities or operations performed by or on behalf of the Contractor regardless of any prior, concurrent, or subsequent active or passive negligence by the Indemnitees.

17.0 INSURANCE AND BONDS
Contractor shall comply with the insurance and bond provisions set forth in Exhibit C.

18.0 SAFETY

18.1 In accordance with generally accepted construction practices, the Contractor shall be solely and completely responsible for conditions of the jobsite, including safety of all persons and property during performance of the Work, and the Contractor shall fully comply with all OSHA, State and Federal laws, rules, regulations and orders relating to safety of the public and workers.

18.2 It is the Contractor's responsibility to acquaint itself with and abide by these regulations during all phases of construction. The City will not be responsible for ensuring the Contractor's compliance with these regulations. The Contractor’s duty of indemnification shall apply to any Liability caused by its failure to abide by these regulations.

18.3 The Contractor shall include any and all costs associated with compliance with these safety requirements in the appropriate bid items of Work to be performed.

19.0 PERMITS (CITY AND OTHER AGENCIES)

19.1 After execution of the Contract and prior to beginning work, the Contractor and all subcontractors shall execute a no fee construction permit at the City. A permit will be issued by the Engineering Inspector assigned to the Project for the Contractor and all subcontractors.

19.2 The permittees shall first submit the following documents to the City's Representative or its designee with proof that the policies/licenses are current:

19.2.1 Contractor's License of appropriate classification.

19.2.2 City Business License. A fee will be charged for any new Business Licenses.

19.2.3 General Liability Insurance Certificate as required by Exhibit C. 03/08/2022 C12 27 of 48

CONSTRUCTION CONTRACT (NB-PW) [52253-1] 8 of 9 PRO BUILDING CONCEPTS, INC. 00105910 2

19.2.4 Worker's Compensation Insurance Certificate as required by Exhibit C.

19.3 If any subcontractor does not have the amount of liability insurance required in these specifications, the Contractor must produce evidence satisfactory to the City’s Risk Manager that the subcontractor's work is covered by the Contractor's liability insurance policy.

19.4 Agency permits, other than those issued by the City, will generally not be required unless specifically noted. If for some unknown reason the Contractor is required to obtain a permit, the City will compensate the Contractor for its actual cost plus a 10% markup.

20.0 SERVICE OF NOTICE

20.1 Any notice, which either Party may desire to give to the other Party, must be in writing and may be given by personal delivery to the Party’s Representative or by overnight courier service to the Party’s address set forth in Section 1.0. Notice may also be given by mailing it by registered or certified mail, return receipt requested, to the other Party at the address set forth in Section 1.0. Any notice given by mail will be deemed given 48 hours after such notice is deposited in the United States mail, addressed as provided with postage fully prepaid.

20.2 A Party may change its address by giving notice as provided above, and the changed address shall thereafter be deemed to be the address set forth in Section 1.0.

21.0 PUBLIC WORKS CONTRACTS: ASSIGNMENT TO AWARDING BODY In accordance with Section 4551 of the Government Code, the Contractor and subcontractors shall conform to the following requirements. In entering into a public works contract or a subcontract to supply goods, services or materials pursuant to a public works contract, the contractor or subcontractor offers and agrees to assign to the awarding body all rights, title and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. Sec. 15) or arising from purchases of goods, services or materials pursuant to the public works contract of the subcontract. This assignment shall be made and become effective at the time the awarding body tenders final payment to the contractor, without further acknowledgment by the Parties.

22.0 RESOLUTION OF CONTRACT CLAIMS
The provisions of Article 1.5, Chapter 1, Part 3 of Division 2, of the Public Contract Code apply to this Contract. These provisions set forth a procedure for the resolution of disputed construction claims arising from this Contract. These provisions establish procedures for submitting claims and set minimum time limits for responding to such claims. Following a response, if a claim remains in dispute, a meet and confer conference between the claimant and the local agency may be demanded by the claimant. If the dispute remains unresolved following the meet and confer conference, and the claimant proceeds to file a civil action seeking to obtain enforcement and judgment on the claim, the dispute may be submitted to non-binding mediation and, if it remains unresolved, to judicial arbitration.

03/08/2022 C12 28 of 48

CONSTRUCTION CONTRACT (NB-PW) [52253-1] 9 of 9 PRO BUILDING CONCEPTS, INC. 00105910 2

23.0 SPECIAL PROVISIONS
This Contract is subject to, and Contractor shall comply with, the special provisions referenced in Exhibit E, if any.

24.0 EXHIBITS
All documents referenced as exhibits in this Contract, or referenced in an exhibit to this Contract, are incorporated herein.

25.0 APPLICABLE LAW, VENUE
This Contract shall be construed and enforced under the laws of the State of California.

If any action is commenced by any Party to this Agreement, such action shall be filed in a court of competent jurisdiction within the County of San Diego, California.

26.0 MODIFICATIONS
This Contract contains the entire agreement, between the Parties and supersedes all prior negotiations, discussions, obligations and rights of the Parties in respect of each other regarding the subject matter of this Contract. There is no other written or oral understanding between the Parties. No modification, amendment or alteration of this Contract shall be valid unless it is in writing and signed by all Parties.

27.0 EXECUTION
IN WITNESS WHEREOF; the Parties hereto have executed this Contract as of the Contract Date.
03/08/2022 C12 29 of 48

CONSTRUCTION CONTRACT (NB-PW) [52253-1] 10 of 9 PRO BUILDING CONCEPTS, INC. 00105910 2

“City”

CITY OF VISTA, a chartered municipal
corporation

By:

PATRICK JOHNSON, CITY MANAGER

ATTEST:

KATHY VALDEZ, CITY CLERK

By:

APPROVED AS TO FORM:

DAROLD PIEPER, CITY ATTORNEY

By:

RISK MANAGEMENT REVIEW:

DOLORES GASCON, RISK MANAGER

By:

APPROVED
Darold Pieper
20220224153915

“Contractor”

PRO BUILDING CONCEPTS, INC., a
California corporation

By:

Name/Title

By:

Name/Title

03/08/2022 C12 30 of 48

00105910 2 Exhibit A

EXHIBIT A
CONTRACTOR’S PROPOSAL

03/08/2022 C12 31 of 48

BID SCHEDULE

PROJECT NAME: THE WAVE WATERPARK SLIDE TOWER PROJECT (C.I.P. No. 8327)

NAME OF BIDDER: Pro Building Concepts, Inc., License #B-1045347

Base Bid Items

Bid
Item Description Of Work Qty. Unit Unit Price Item Total

GENERAL
1 Mobilization & Demobilization
(5% maximum of Total Base Bid) 1 LS $36,100
2 Disconnect waterslide entry tanks, store for re-
installation. Remove all lightweight concrete
from platforms, landings, and stairs. Cutaway
all steel sections, handrails, and platforms
which are being replaced and dispose of to
landfill.
1 LS $88,300
3 Fabricate and install all replacement
galvanized steel, including but not limited to;
decks, handrails, steel tread pans and stair
treads. Remove and replace Aquawhiz
waterslide.
1 LS $140,500
4 Remove, fabricate and re-install galvanized
support column for Aquawhiz entry area. 1 LS $33,320
5 Prepare all platforms including stair treads,
landings, and platforms for waterproofing and
lightweight concrete. Prep, prime, and paint
new structure.
1 LS $43,300

TOTAL BASE BID FOR IMPROVEMENTS (in figures): _$341,520.00______________________________

Base Bid Item Additional Description:

Bid Item No. 1
Mobilization and Demobilization shall consist of preparatory work and operations, including, but not limited to those necessary for the move-on and move-off operations such as:

1. Supplying, maintaining, and finally moving any temporary facilities.

2. Furnishing all insurance, bonds, licenses, materials, tools, equipment, and incidentals involved in mobilization and preparatory work and operations, including, but not limited to, those necessary for the movement of personnel, equipment, supplies, and incidentals to the project; for all other facilities, sureties, work and operations which must be performed, or costs incurred prior to beginning work or various contractor items on or off the project site; 03/08/2022 C12 32 of 48

3. Application and acquiring no fee City permits as required for the Project

4. For other items not directly related to bid items.

Payment for Mobilization and Demobilization shall be paid by the lump sum price bid as shown on the BID SCHEDULE. The Agency reserves the right to conform the bid item price to the maximum stated percentage on the BID SCHEDULE.

Placement of facilities and storage of construction equipment and materials shall be approved in advance by the Project Manager. All such facilities and equipment shall remain the property of the Contractor. The Contractor shall be held responsible for all damage caused during mobilization and demobilization. The Contractor shall leave all storage areas in a neat clean condition, satisfactory to the Engineer and in accordance with the provisions of storage permits set by the property owner.

Construction Notes:

All work to be performed per 2021 Greenbook Standard Specifications for Public Works Construction and the San Diego Regional Standard Drawings. Building License approval is required for payment.

Class B Contractors license is required. No bid bond required. Insurance certificates and 100% Faithful Performance and 100% Payment Bonds are required prior to contract execution. “Working Days” shall be confined to hours between 7:00AM and 6:00PM, Monday through Sunday. Any deviation from these hours requires advance approval from the Project Manager. 03/08/2022 C12 33 of 48

00105910 2 Exhibit B

EXHIBIT B

NOT APPLICABLE TO THIS CONTRACT

03/08/2022 C12 34 of 48

00105910 2 Exhibit C, Page 1 of 4

EXHIBIT C

INSURANCE AND BONDING REQUIREMENTS
Contractor shall procure and maintain for the duration of the Contract, [and for x years thereafter,] insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Contractor, his agents, representatives, employees, or subcontractors.

MINIMUM SCOPE AND LIMIT OF INSURANCE
Coverage shall be at least as broad as:

1. Commercial General Liability (“CGL”): Insurance Work Office Form CG 00 01 covering CGL on an “occurrence” basis, including products, completed operations, property damage, bodily injury, and personal & advertising injury with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this Project/location or the general aggregate limit shall be twice the required occurrence limit.

2. Automobile Liability: Insurance Work Office Form Number CA 0001 covering Code 1 (any auto), with limits no less than $2,000,000 per accident for bodily injury and property damage.

3. Workers’ Compensation insurance as required by the State of California, with Statutory Limits, and Employers’ Liability insurance with a limit of no less than $1,000,000 per accident for bodily injury or disease.

4. Surety Bonds as described below.

Contractor shall also provide the additional coverages checked below and at least as broad as:

5. Contractors’ Pollution Legal Liability and/or Asbestos Legal Liability and/or Errors and Omissions (if Project involves environmental hazards) with limits no less than $1,000,000 per occurrence or claim, and $2,000,000 policy aggregate.

6. Builder’s Risk (Course of Construction) insurance utilizing an “All Risk” (Special Perils) coverage form, with limits equal to the completed value of the Project and no coinsurance penalty provisions.

7. Professional Liability (if Design/Build), with limits no less than $1,000,000 per occurrence or claim, and $2,000,000 policy aggregate.

If the contractor maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.

Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either: the contractor shall cause the insurer shall reduce or eliminate such 03/08/2022 C12 35 of 48

00105910 2 Exhibit C, Page 2 of 4
deductibles or self-insured retentions as respects the City, its officers, officials, employees, and volunteers; or the Contractor shall provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration, and defense expenses.

Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions:

1. The City, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of with respect to liability arising out of work or operations performed by or on behalf of the Contractor including materials, parts, or equipment furnished in connection with such work or operations and automobiles owned, leased, hired, or borrowed by or on behalf of the Contractor. General liability coverage can be provided in the form of an endorsement to the Contractor’s insurance (at least as broad as ISO Form CG 20 10, CG 11 85 or both CG 20 10 and CG 20 37 forms if later revisions used), unless otherwise approved in advance by City.

2. For any claims related to this Project, the Contractor’s insurance coverage shall be primary insurance as respects the City, its officers, officials, employees, and volunteers.

Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of the Contractor’s insurance and shall not contribute with it.

3. Each insurance policy required by this clause shall provide that coverage shall not be canceled, except with notice to the City.

Builder’s Risk (Course of Construction) Insurance
Contractor may submit evidence of Builder’s Risk insurance in the form of Course of Construction coverage. Such coverage shall name the City as a loss payee as their interest may appear.

If the Project does not involve new or major reconstruction, at the option of the City, an Installation Floater may be acceptable. For such Projects, a Property Installation Floater shall be obtained that provides for the improvement, remodel, modification, alteration, conversion or adjustment to existing buildings, structures, processes, machinery and equipment. The Property Installation Floater shall provide property damage coverage for any building, structure, machinery or equipment damaged, impaired, broken, or destroyed during the performance of the Work, including during transit, installation, and testing at the City’s site.

Claims Made Policies
If any coverage required is written on a claims-made coverage form:

1. The retroactive date must be shown, and this date must be before the execution date of the Contract or the beginning of Contract work.

2. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of Contract work.
03/08/2022 C12 36 of 48

00105910 2 Exhibit C, Page 3 of 4

3. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a retroactive date prior to the Contract effective, or start of work date, the Contractor must purchase extended reporting period coverage for a minimum of five (5) years after completion of Contract work.

4. A copy of the claims reporting requirements must be submitted to the City for review.

5. If the services involve lead-based paint or asbestos identification/remediation, the Contractors Pollution Liability policy shall not contain lead-based paint or asbestos exclusions. If the services involve mold identification/remediation, the Contractors Pollution Liability policy shall not contain a mold exclusion, and the definition of Pollution shall include microbial matter, including mold.

Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best rating of no less than A: VII, unless otherwise acceptable to the City.

Waiver of Subrogation
Contractor hereby agrees to waive rights of subrogation which any insurer of Contractor may acquire from Contractor by virtue of the payment of any loss. Contractor agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation. The Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of the City for all work performed by the Contractor, its employees, agents and subcontractors.

Verification of Coverage
Contractor shall furnish the City with original certificates and amendatory endorsements, or copies of the applicable insurance language, effecting coverage required by this Contract. All certificates and endorsements are to be received and approved by the City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Contractor’s obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements, required by these specifications, at any time.

Subcontractors
Contractor shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Contractor shall ensure that City is an additional insured on insurance required from subcontractors. For CGL coverage, subcontractors shall provide coverage with a format least as broad as CG 20 38 04 13.

Surety Bonds
Contractor shall provide the following Surety Bonds if checked:

1. Bid Bond.

2. Payment Bond and Performance Bond.

3. Maintenance Bond.
03/08/2022 C12 37 of 48

00105910 2 Exhibit C, Page 4 of 4
The Payment Bond and the Performance Bond shall be in an amount equal to the Contract Ceiling Price. If the Performance Bond provides for a one-year warranty a separate Maintenance Bond is not necessary. If the warranty period specified in the Contract is for longer than one year a Maintenance Bond equal to 10% of the Contract price is required.

Bonds shall be duly executed by a responsible corporate surety, authorized to issue such bonds in the State of California and secured through an authorized agent with an office in California.

Special Risks or Circumstances
City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other circumstances.

03/08/2022 C12 38 of 48

00105910 2 Exhibit D

EXHIBIT D

AGREEMENT TO COMPLY WITH CALIFORNIA LABOR LAW REQUIREMENTS

TO BE EXECUTED BY BIDDER AND SUBMITTED WITH BID
[Labor Code §§ 1720, 1771.1, 1773.8, 1775, 1776, 1777.5, 1813, 1860, 1861, 3700] The undersigned Contractor certifies that it is aware of and hereby agrees to fully comply with the following provisions of California law:

1. No contractor or subcontractor may be listed on a bid proposal for a public works project unless registered with the Department of Industrial Relations pursuant to Labor Code section 1725.5 [with limited exceptions from this requirement for bid purposes only under Labor Code section 1771.1(a)]. No contractor or subcontractor of any tier may be awarded a contract for public work on a public works project without proof of registration with the Department of Industrial Relations pursuant to Labor Code section 1725.5.

This project is subject to compliance monitoring and enforcement by the Department of Industrial Relations.

2. Contractor acknowledges that this contract is subject to the provisions of Division 2, Part 7, Chapter 1 (commencing with Section 1720) of the California Labor Code relating to public works and the awarding public agency (“Agency”) and agrees to be bound by all the provisions thereof as though set forth in full herein.

3. Contractor agrees to comply with the provisions of California Labor Code Section 1773.8 which requires the payment of travel and subsistence payments to each worker needed to execute the work to the extent required by law.

4. Contractor agrees to comply with the provisions of California Labor Code Sections 1774 and 1775 concerning the payment of prevailing rates of wages to workers and the penalties for failure to pay prevailing wages. The Contractor shall, as a penalty to the Agency, forfeit not more than fifty dollars ($50) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the Director of Industrial Relations for the work or craft in which the worker is employed for any public work done under the contract by Contractor or by any subcontractor.

5. Contractor agrees to comply with the provisions of California Labor Code Section 1776 which require Contractor and each subcontractor to (1) keep accurate payroll records, (2) certify and make such payroll records available for inspection as provided by Section 1776, and (3) inform the Agency of the location of the records. The Contractor is responsible for compliance with Section 1776 by itself and all of its subcontractors.

6. Contractor agrees to comply with the provisions of California Labor Code Section 1777.5 concerning the employment of apprentices on public works projects, and further agrees that Contractor is responsible for compliance with Section 1777.5 by itself and all of its subcontractors.

7. Contractor agrees to comply with the provisions of California Labor Code Section 1813 concerning penalties for workers who work excess hours. The Contractor shall, as a penalty to the Agency, forfeit twenty-five dollars ($25) for each worker employed in the execution of the contract by the Contractor or by any subcontractor for each calendar day during which such worker is required or permitted to work more than 8 hours in any one calendar day and 40 hours in any one calendar week in violation of the provisions of Division 2, Part 7, Chapter 1, Article 3 of the California Labor Code.

8. Registrations under Section 1725.5 expire annually at the end of June, and Contractor is responsible for verifying the renewal status of each subcontractor, of any tier, working on this Contract, and providing City with an updated list of all subcontractors and their registration status. Subcontractors who do not timely renew their registration must be removed from the job site until they are registered. The removal of a subcontractor for failure to be registered shall not be cause for any extension of time or additional compensation of any nature under the Contract.

9. Contractor shall provide to City, as a condition precedent to the payment of Contractor’s final retention, a complete list of all subcontractors who have worked on the Project, including their registration numbers. This list must be provided at least 30days prior to the payment of the final retention and shall be submitted under penalty of perjury.
03/08/2022 C12 39 of 48

00105910 2 Exhibit D

10. To the fullest extent permitted by law and without limitation by the other provisions of this Contract relating to indemnification and insurance, Contractor shall also indemnify, defend and hold harmless City, and its directors, officers, employees and agents from and against all liability, excluding penalties assessed against City under Labor Code Section 1773.3, but including, without limitation, associated investigation and administrative expenses, defense costs, reasonable attorneys' fees, expert witness fees, court costs, and costs of alternative dispute resolution, resulting from Contractor’s failure to comply with the provisions of this section and of Article 2, Chapter 1, Part 7, Division 2 of the California Labor Code with respect to Contractor, all subcontractors of any tier, and their respective employees working under this Contract.

11. California Labor Code Sections 1860 and 3700 provide that every contractor will be required to secure the payment of compensation to its employees. In accordance with the provisions of California Labor Code Section 1861, Contractor hereby certifies as follows:
“I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for worker’s compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this contract.”
Signature Date
Name/Title Company:
03/08/2022 C12 40 of 48

00105910 2 Exhibit E

EXHIBIT E

SPECIAL PROVISIONS
This Contract is subject to the following provisions, if checked:

1. State of California grant conditions, as attached.

2. Federal grant conditions, as attached.

3. Other conditions, as attached.

03/08/2022 C12 41 of 48

CITY OF VISTA Page 1 of 2 PRO BUILDING CONCEPTS, INC.
00105913 2 [00065304 3] PAYMENT BOND (LABOR & MATERIALS) Bond No.

Premium: $
Effective Date:

PAYMENT BOND
(LABOR AND MATERIALS)
KNOW ALL PERSONS BY THESE PRESENTS that:

The City of Vista (“City”) has awarded a contract (the “Contract”) to PRO BUILDING CONCEPTS, INC. (“Principal”) as follows:

Construction Contract For The Wave Waterpark Slide Tower Project, which Contract, and all Contract Documents set forth therein, are incorporated herein and made a part thereof by this reference.

Principal is required under the terms of the Contract and the California Civil Code to furnish a bond to secure the prompt, full, and faithful payment of any Claimant, as hereinafter defined, for all labor, materials or services used or reasonably required for use in the performance of the work, concurrently with delivery to City of the signed Contract.

NOW, THEREFORE, we, the undersigned Principal, and
,
(Name, address, and telephone number of Surety)
(“Surety”) a duly admitted surety insurer under the laws of the State of California, as Surety, are held and firmly bound unto City in the penal sum of Three Hundred Forty-One Thousand Five Hundred Twenty Dollars ($341,520.00), this amount being not less than one hundred percent (100%) of the total contract price, in lawful money of the United States of America, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors, and assigns, jointly and severally, firmly by these presents.

THE CONDITION OF THIS OBLIGATION IS SUCH THAT, if the hereby bounded Principal, his, her or its heirs, executors, administrators, successors or assigns, or subcontractors shall fail to pay any of the persons named in Division 4, Part 6, Title 3 of the California Civil Code (§ 9000 et seq.), or any amounts due under the Unemployment Insurance Code with respect to work or labor performed under the Contract, or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of Principal and subcontractors pursuant to Section 13020 of the Unemployment Insurance Code, with respect to work or labor performed under the Contract (“Claimants”), Surety will pay for the same in an amount not exceeding the penal sum specified in this bond; otherwise, this obligation shall become null and void.

This bond shall inure to the benefit of any of the persons named in Division 4, Part 6, Title 3 of the California Civil Code (§ 9000 et seq.), so as to give a right of action to such persons or their assigns in any suit brought upon the bond.

In case suit is brought upon this bond to enforce or interpret this bond’s terms, Surety further agrees to pay all court costs and reasonable attorneys’ fees in an amount fixed by the court. Principal and Surety agree that this Performance Bond shall not be considered a part of the Contract but rather is a separate obligation of Principal and its Surety, and that any attorneys’ fee provision contained in this Performance Bond shall not apply to the Contract.

In the event there is any litigation between the parties arising from the breach of the Contract, each party will bear its own attorneys’ fees in the litigation.

FURTHER, Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration, addition or modification to the terms of the Contract, or of the work to be performed thereunder, or the specifications for the same, shall in any way affect its obligations under this bond, and it does hereby waive notice of any such change, extension of time, alteration, addition, or modification to the terms of the Contract or to the work or to the specifications thereunder. Surety hereby waives the provisions of California Civil Code §§ 2819, 2845, and 2849.

City is an intended beneficiary of this bond and has all rights of a party thereto. [Continued on page 2.]
03/08/2022 C12 42 of 48EXHIBIT 4

CITY OF VISTA Page 2 of 2 PRO BUILDING CONCEPTS, INC.
00105913 2 [00065304 3] PAYMENT BOND (LABOR & MATERIALS) IN WITNESS WHEREOF, this instrument has been duly executed by Principal and Surety, on the date set forth below, the name of each corporate party being hereto affixed and these presents duly signed by its undersigned representative(s) pursuant to authority of its governing body.

Dated:
“Principal”
PRO BUILDING CONCEPTS, INC.

By:

Signature
Name and Title
By:

Signature
Name and Title
(Seal)

APPROVED
Darold Pieper
20220224155025
“`Surety”
By:

Signature
Name and Title
By:

Signature
Name
(Seal)
This bond must be dated, all signatures must be notarized, and evidence of the authority of any person signing as attorney-in-fact must be attached.
03/08/2022 C12 43 of 48

CITY OF VISTA Page 1 of 3 PRO BUILDING CONCEPTS, INC.
00105915 2 [00065305 3] PERFORMANCE BOND (FAITHFUL PERFORMANCE) Bond No.

Premium: $
Effective Date:

PERFORMANCE BOND
1642051700
KNOW ALL PERSONS BY THESE PRESENTS that:

The City of Vista (“City”) has awarded a contract (the “Contract”) to PRO BUILDING CONCEPTS, INC. (“Principal”) as follows:

Construction Contract For The Wave Waterpark Slide Tower Project, which Contract, and all Contract Documents set forth therein, are incorporated herein and made a part thereof by this reference.

Principal is required under the terms of the Contract to furnish a bond guaranteeing the prompt, full, and faithful performance of the Contract concurrently with delivery of the signed Contract to City.

NOW, THEREFORE, we, the undersigned Principal, and
,
(Name, address, and telephone number of Surety)
(“Surety”) a duly admitted surety insurer under the laws of the State of California, as Surety, are held and firmly bound unto City in the penal sum of Three Hundred Forty-One Thousand Five Hundred Twenty Dollars ($341,520.00), this amount being not less than one hundred percent (100%) the total contract price, in lawful money of the United States of America, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors, and assigns, jointly and severally, firmly by these presents.

THE CONDITION OF THIS OBLIGATION IS SUCH THAT, if the hereby bounded Principal, his, her or its heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by, and well and truly keep and perform all the undertakings, terms, covenants, conditions and agreements in the Contract and any alteration thereof made as therein provided, on Principal’s part to be kept and performed, all within the time and in the manner therein specified, and in all respects according to their true intent and meaning, and shall indemnify and hold harmless City and its officers, agents, and others as therein provided, from any and all losses, liability and damages, claims, judgments, stop payment notices, costs, and fees of every description, whether imposed by law or equity, which may be incurred by City by reason of the failure or default on the part of Principal in the performance of any or all of the terms or the obligations of the Contract Documents, as they may be amended and supplemented including, but not limited to, Principal’s liability for City’s damages (including direct and consequential damages incurred by City for: rental expenses; losses of use, income, profit, business, and reputation; increased financing costs; and loss of management or employee productivity or of the services of such persons) caused by Principal’s delays, as well as Principal’s liability for other delay damages or liquidated damages, and any warranties or guarantees required thereunder; then this obligation shall become null and void; otherwise, it shall be and remain in full force and effect.

When City declares that Principal is in default under the Contract, Surety shall promptly, take one of the following actions:
(a)Remedy the default;
(b)Undertake through its agents or independent contractors reasonably acceptable to City, to complete the Project according to the Contract Documents’ terms and conditions then in effect including without limitation, all obligations with respect to warranties, guarantees, and the payment of liquidated damages; or, if required by City; (c)Obtain a bid or bids for completing the Contract in accordance with its terms and conditions using a procurement methodology approved by City, select a contractor or contractors — acceptable to City — to complete all of the Work, and arrange for a contract between the contractor(s) and City, to be secured with performance and payment bonds executed by an admitted surety insurer equivalent to the bonds issued on the Construction Contract, and Surety shall make available, as the Work progresses, sufficient funds to pay the cost of completion less the 03/08/2022 C12 44 of 48EXHIBIT 5

CITY OF VISTA Page 2 of 3 PRO BUILDING CONCEPTS, INC.
00105915 2 [00065305 3] PERFORMANCE BOND (FAITHFUL PERFORMANCE) balance of the Contract Sum, and to pay and perform all obligations of Principal under the Contract and Contract Documents, including other costs and damages for which Surety is liable under this Bond and all obligations with respect to warranties, guarantees, and the payment of liquidated damages as a result of Contractor’s default; (d)Waive its right to perform and complete, arrange for completion, or obtain a new contractor and with reasonable promptness under the circumstances:
(i)After investigation, determine the amount for which it may be liable to City and, as soon as practicable after the amount is determined, make payment to City; or (ii)Deny liability in whole or in part and notify City, citing the reasons for denial.

If Surety does not proceed as provided above with reasonable promptness, Surety shall be deemed to be in default on this Bond seven days after receipt of an additional written notice from City to Surety demanding that Surety perform its obligations under this Bond, and City shall be entitled to enforce any remedy available to City. If Surety admits liability and tenders payment, and City refuses the payment, or Surety has denied liability, in whole or in part, without further notice City shall be entitled to enforce any remedy available to City.

In case suit is brought upon this bond, Surety further agrees to pay all court costs and reasonable attorneys’ fees in an amount fixed by the court. Principal and Surety agree that this Performance Bond shall not be considered a part of the Contract but rather is a separate obligation of Principal and its Surety, and that any attorneys’ fee provision contained in this Performance Bond shall not apply to the Contract. In the event there is any litigation between the parties arising from the breach of the Contract, each party will bear its own attorneys’ fees in the litigation.

FURTHER, Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration, addition or modification to the terms of the Contract, or of the work to be performed thereunder, or the specifications for the same, shall in any way affect its obligations under this bond, and it does hereby waive notice of any such change, extension of time, alteration, addition, or modification to the terms of the Contract or to the work or to the specifications thereunder. Surety hereby waives the provisions of California Civil Code §§ 2819, 2845, and 2849.

City is an intended beneficiary of this bond and has all rights of a party thereto. [Text and signatures continued on page 3.]
03/08/2022 C12 45 of 48

CITY OF VISTA Page 3 of 3 PRO BUILDING CONCEPTS, INC.
00105915 2 [00065305 3] PERFORMANCE BOND (FAITHFUL PERFORMANCE) IN WITNESS WHEREOF, two (2) identical counterparts of this instrument, each of which shall for all purposes be deemed an original hereof, have been duly executed by Principal and Surety, on the date set forth below, the name of each corporate party being hereto affixed and these presents duly signed by its undersigned representative(s) pursuant to authority of its governing body.

Dated:
“Principal”
PRO BUILDING CONCEPTS, INC.

By:

Signature
Name and Title
By:

Signature
Name and Title
(Seal)

APPROVED
Darold Pieper
20220224155402
“`Surety”
By:

Signature
Name and Title
By:

Signature
Name and Title
(Seal)
This bond must be dated, all signatures must be notarized, and evidence of the authority of any person signing as attorney-in-fact must be attached.
03/08/2022 C12 46 of 48

03/08/2022 C12 47 of 48
EXHIBIT 6

03/08/2022 C12 48 of 48