HomeMy WebLinkAboutC-7119-1 - Equipment Lease Agreement (low wake vessles)AMENDMENT NO. TWO TO
EQUIPMENT LEASE AGREEMENT
WITH NEWPORT AQUATIC CENTER
THIS AMENDMENT NO. TWO TO EQUIPMENT LEASE AGREEMENT
("Amendment No. Two") is made and entered into as of this 1st day of July, 2019
("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California
municipal corporation and charter city ("City"), and NEWPORT AQUATIC CENTER, a
California corporation ("NAC"), whose address is 1 Whitecliffs Drive, Newport Beach, CA
92660, and is made with reference to the following:
RECITALS
A. NAC owns two (2) twenty foot (20') pontoon style, low wake vessels, more
particularly described as: 1997: Vessel Registration number CF 0775SV; and
1988: Vessel Registration Number CF 37 45 KL, commonly known as "WhitCats"
(collectively, the "Equipment").
B. City has requested to utilize NAC's Equipment to assist City with its mooring and
marina administration duties.
C. City and NAC entered into an Agreement on June 26, 2017, to lease the Equipment
pursuant to the terms and conditions set forth in the Agreement.
D. The parties entered into this Amendment No. One to extend the term of the
Agreement to July 1, 2019, and to increase the total compensation.
E. The parties desire to enter into this Amendment No. Two to extend the term of the
Agreement to December 31, 2019, increase the total compensation, and update
the notice terms.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
Section 1 of the Agreement is amended in its entirety and replaced with the
following: "The term of this Agreement shall commence on the Effective Date, and shall
terminate on December 31, 2019, unless terminated earlier as set forth herein."
2. COMPENSATION TO CONSULTANT
Exhibit A to the Agreement shall be amended in its entirety and replaced with the
Schedule of Billing Rates, attached hereto as Exhibit A and incorporated herein by
reference.
Section 2.1 of the Agreement is amended in its entirety and replaced with the
following: "City shall pay NAC on a flat rate basis in accordance with the provisions of
this Section and the Schedule of Billing Rates attached hereto as Exhibit A and
incorporated herein by reference. NAC's compensation under this Agreement, including
all reimbursable items shall not exceed Forty Eight Thousand and 00/100 Dollars
($48,000.00), without prior written authorization from City. No rate changes shall be made
during the term of this Agreement without the prior written approval of City."
The total amended compensation reflects NAC's additional compensation in
accordance with this Amendment No. Two, in an amount not to exceed Six Thousand
Dollars and 00/100 ($6,000.00).
3. NOTICES
Section 12 of the Agreement is amended in its entirety and replaced with the
following: All notices, demands, requests or approvals, including any change in mailing
address, to be given under the terms of this Agreement shall be given in writing, and
conclusively shall be deemed served when delivered personally, or on the third business
day after the deposit thereof in the United States mail, postage prepaid, first-class mail,
addressed as hereinafter provided. All notices, demands, requests or approvals shall be
addressed as follows:
Attn: Harbormaster
Harbor Department
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
4. INTEGRATED CONTRACT
Attn: Executive Director
NEWPORT AQUATIC CENTER
1 Whitecliffs Drive
Newport Beach, CA 92660
Except as expressly modified herein, all other provisions, terms, and covenants
set forth in the Agreement shall remain unchanged and shall be in full force and effect.
[SIGNATURES ON NEXT PAGE]
Newport Aquatic Center Page 2
IN WITNESS WHEREOF, the parties have caused this Amendment No. Two to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: -7/1 f ZI q
By:
aron C. Fle<rp
City Attorney
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: ,`uj�2 gc/c
By:
Gr e . Leung
Ci anager
ATTEST: CONSULTANT: Newport Aquatic Center,
Date: a California corporation
Date:
< Signed in Counterpart
By: o By:
Leflam 1. Brown William Grant II
City Clerk CEO
Date:
0
Signed in Counterpart
Jon Van Cleave
Secretary
[END OF SIGNATURES]
Attachments: Exhibit A — Schedule of Billing Rates
Newport Aquatic Center Page 3
IN WITNESS WHEREOF, the parties have caused this Amendment No. Two to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: 7/11 ZI I
By:
Aaron C. Hip
City Attorney
ATTEST:
Date:
Leilani I. Brown
City Clerk
Attachments:
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By:
Grace K. Leung
City Manager
CONSULTANT: Newport Aquatic Center,
a California corporation
Date:_ _
By:
William Grant II
CEO
Date:/ l
By: 1 l�
Jon Vn C ea
Secr tary
[END OF SIGNATURES]
Exhibit A — Schedule of Billing Rates
Newport Aquatic Center Page 3
EXHIBIT A
SCHEDULE OF BILLING RATES
MONTHLY RATE:
City shall pay NAC One Thousand and 00/100 Dollars ($1,000.00) per month for two
(2) vessels.
REFURBISHMENT:
NAC shall refurbish the Equipment prior to delivery to City. Refurbishment shall include:
• new paint;
• decals (of City's choice);
• new rub rails/fenders;
• new dock lines;
• propeller guards;
• running lights;
• VHR radio/hailer;
• Spotlight,
• bimini top;
• storage boxes;
• fire extinguisher;
• helm seat;
• PFD's, etc.
City shall pay NAC a flat fee of Three Thousand and 00/100 Dollars ($3,000.00) per
vessel for refurbishment.
ENGINE:
NAC shall install a new 25hp outboard on each vessel, prior to delivery to City. City shall
pay NAC a flat fee of One Thousand Eight Hundred and 00/100 Dollars ($1,800.00)
per vessel.
WATER PUMP:
NAC shall install a new water pump for sea lion deterrence on each vessel, prior to
delivery. to City. City shall pay NAC a flat fee of Five Hundred and 00/100 ($500.00) per
vessel.
The total cost for this entire Agreement shall not exceed Forty Eight Thousand Dollars
and 00/100 ($48,000.00).
Newport Aquatic Center Page A-1
i
r AMENDMENT NO. ONE TO
U EQUIPMENT LEASE AGREEMENT
WITH NEWPORT AQUATIC CENTER
THIS AMENDMENT NO. ONE TO EQUIPMENT LEASE AGREEMENT
("Amendment No. One") is made and entered into as of this 30th day of June, 2018
("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California
municipal corporation and charter city ("City"), and NEWPORT AQUATIC CENTER
("NAC"), a California corporation, whose address is 1 Whitecliffs Drive, Newport Beach,
California 92660, and is made with reference to the following:
RECITALS
A. NAC owns two (2) twenty foot (20') pontoon style, low wake vessels, more
particularly described as: 1997: Vessel Registration number CF 0775SV; and
1988: Vessel Registration Number CF 3745 KL, commonly known as "WhitCats"
(collectively, the "Equipment").
B. City has requested to utilize NAC's Equipment to assist City with its mooring and
marina administration duties.
C. City and NAC entered into an Agreement on June 26, 2017, to lease the
Equipment pursuant to the terms and conditions set forth in the Agreement.
D. The parties desire to enter into this Amendment No. One to extend the term of the
Agreement to July 1, 2019, and to increase the total compensation.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
1. TERM
Section 1 of the Agreement is amended in its entirety and replaced with the
following: "The term of this Agreement shall commence on the Effective Date, and shall
terminate on July 1, 2019, unless terminated earlier as set forth herein."
2. COMPENSATION TO CONSULTANT
Exhibit A to the Agreement shall be amended in its entirety and replaced with the
Schedule of Billing Rates, attached hereto as Exhibit A and incorporated herein by
reference.
Section 2.1 of the Agreement is amended in its entirety and replaced with the
following: "City shall pay NAC on a flat rate basis in accordance with the provisions of
this Section and the Schedule of Billing Rates attached hereto as Exhibit A and
incorporated herein by reference. NAC's compensation under this Agreement, including
all reimbursable items shall not exceed Forty Two Thousand Dollars and 00/100
($42,000.00), without prior written authorization from City. No rate changes shall be made
during the term of this Agreement without the prior written approval of City."
The total amended compensation reflects NAC's additional compensation in
accordance with this Amendment No. One, including all reimbursable items, in an amount
not to exceed Twelve Thousand Dollars and 00/100 ($12,000.00).
3. INTEGRATED CONTRACT
Except as expressly modified herein, all other provisions, terms, and covenants
set forth in the Agreement shall remain unchanged and shall be in full force and effect.
[SIGNATURES ON NEXT PAGE]
Newport Aquatic Center Page 2
IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be
executed on the dates written below.
CITY OF NEWPORT BEACH,
A California municipal corporation
Date: '-1131. ni
NEWPORT AQUATIC CENTER, A
CALIFORNIA CORPORATION
Date:
By: 2 e1- L AA By:
Dave
City Manager
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:�*—
:.:UNt< t9 lois
By,/ AarC&Iq.19
City 00"
ATTEST:
Date: 6. d
By: &Ia
Leilani I. Brown
City Clerk
Attachme
Signed in Counterpart
William Grant
Chief Executive Officer
Date:
0
Signed in Counterpart
Jonathan Van Cleave
Secretary
[END OF SIGNATURES]
A - Schedule of Billing Rates
Newport Aquatic Center Page 3
IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be
executed on the dates written below.
CITY OF NEWPORT BEACH,
A California municipal corporation
Date:
By;
Dave Kiff
City Manager
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
City
ATTEST:
Date:
By
Leilani I. Brown
City Clerk
Attachments:
NEWPORT AQUATIC CENTER, A
CALIFORNIA CORPORATION
Date: 6- gal fs'
By
William Grant
Chief Executive Officer
Date: I n .1- - . 1 0
By:
W'1q,19 Jonatha Vanleave
4A+" ( Secreta
[END OF SIGNATURES]
Exhibit A — Schedule of Billing Rates
Newport Aquatic Center Page 3
EXHIBIT A
SCHEDULE OF BILLING RATES
MONTHLY RATE:
City shall pay NAC Five Hundred and 00/100 Dollars ($500.00) per month, per vessel.
REFURBISHMENT:
NAC shall refurbish the Equipment prior to delivery to City. Refurbishment shall include:
• new paint;
• decals (of City's choice);
• new rub rails/fenders;
• new dock lines,
• propeller guards;
• running lights;
• VHR radio/hailer;
• Spotlight;
• bimini top;
• storage boxes;
• fire extinguisher;
• helm seat,
• PFD's, etc.
City shall pay NAC a flat fee of Three Thousand and 00/100 Dollars ($3,000.00) per
vessel for refurbishment.
ENGINE:
NAC shall install a new 25hp outboard on each vessel, prior to delivery to City. City shall
pay NAC a flat fee of One Thousand Eight Hundred and 00/100 Dollars ($1,800.00)
per vessel.
WATER PUMP:
NAC shall install a new water pump for sea lion deterrence on each vessel, prior to
delivery to City. City shall pay NAC a flat fee of Five Hundred and 00/100 ($500.00) per
vessel.
The total cost for this entire Agreement shall not exceed Forty Two Thousand Dollars
and 00/100 ($42,000.00).
Newport Aquatic Center Page A-1
d'
r
EQUIPMENT LEASE AGREEMENT
U BETWEEN CITY OF NEWPORT BEACH AND
NEWPORT AQUATIC CENTER
THIS EQUIPMENT LEASE AGREEMENT ("Agreement") is made and entered into
as of this 26th day of June, 2017 ("Effective Date") by and between the CITY OF
NEWPORT BEACH, a California Municipal Corporation and charter city ("City"), and
NEWPORT AQUATIC CENTER ("NAC"), a California Corporation whose address is 1
Whitecliffs Drive, Newport Beach, California, 92660, and is made with reference to the
following:
RECITALS
A. NAC owns two (2) twenty foot (20') pontoon style, low wake vessels, more
particularly described as: 1997: Vessel Registration number CF 0775SV; and
1988: Vessel Registration Number CF 3745 KL, commonly known as "WhitCats"
(collectively, the "Equipment").
B. City has requested to utilize NAC's Equipment to assist City with its mooring and
marina administration duties.
C. City and NAC desire to enter this Agreement to lease the Equipment pursuant to
the terms and conditions set forth in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
The term of this Agreement shall commence on July 1, 2017, and shall terminate
on July 1, 2018, unless terminated earlier as set forth herein.
2. COMPENSATION
2.1 City shall pay NAC on a flat rate basis in accordance with the provisions of
this Section and the Schedule of Billing Rates attached hereto as Exhibit A and
incorporated herein by reference. NAC's compensation under this Agreement, including
all reimbursable items shall not exceed Thirty Thousand and 001100 Dollars
($30,000.00), without prior written authorization from City. No rate changes shall be made
during the term of this Agreement without the prior written approval of City.
2.2 NAC shall submit monthly invoices to City. NAC's bills shall include the
monthly lease rate and a description of any reimbursable expenditures. City shall pay
NAC no later than thirty (30) calendar days after approval of the monthly invoice by City
staff.
2.3 City shall reimburse NAC only for those costs or expenses specifically
identified in Exhibit A to this Agreement or specifically approved in writing in advance by
City.
Newport Aquatic Center Page 1
3. ADMINISTRATION
This Agreement will be administered by the Harbor Resources Department. City's
Harbor Resources Manager or designee shall be the Project Administrator and shall have
the authority to act for City under this Agreement. The Project Administrator shall
represent City in all matters pertaining to the Services to be rendered pursuant to this
Agreement.
4. STORAGE
Equipment shall be stored at Marina Park located at 1600 West Balboa Blvd,
Newport Beach, CA 92663.
5. MAINTENANCE
Subject to Exhibit A, NAC shall provide any and all Equipment upkeep and
maintenance, including all engine maintenance, oil changes and major engine failure,
unless a written agreement to the contrary signed by both parties prior to the repair is
executed.
6. DAMAGE
Any damage to the Equipment caused by City shall be repaired by NAC and
charged back to City, subject to the Compensation limit in Section 2. Upon the expiration
of the Term of the Agreement, City shall return Equipment to NAC in good condition.
Normal wear and tear shall be expected and will not be charged back to City.
7. REFURBISHMENT
Equipment shall undergo a major refurbishment prior to the Effective Date of the
Agreement, as identified in Exhibit A to this Agreement.
8. HOLD HARMLESS
8.1 To the fullest extent permitted by law, NAC shall indemnify, defend and hold
harmless the State of California, the County of Orange, the City, its City Council, boards
and commissions, officers, agents, volunteers, employees and any person or entity
owning or otherwise in legal control of the property upon which NAC performs the Project
and/or Services contemplated by this Agreement (collectively, the "Indemnified Parties"),
from and against any and all claims (including, without limitation, claims for bodily injury,
death or damage to property), demands, obligations, damages, actions, causes of action,
suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including,
without limitation, attorneys' fees, disbursements and court costs) of every kind and
nature whatsoever (individually, a Claim; collectively, "Claims"), and which may arise from
or in any manner relate (directly or indirectly) to any breach the negligence, recklessness,
or willful misconduct of the terms and conditions of this Agreement, any work performed
or services provided under this Agreement including, without limitation, defects in
workmanship or materials or Consultant's presence or activities conducted on the Project
(including the negligent, reckless, and/or willful acts, errors and/or omissions of NAC or
Newport Aquatic Center Page 2
its principals, officers, agents, employees, vendors, suppliers, subconsultants,
subcontractors, anyone employed directly or indirectly by any of them or for whose acts
they may be liable, or any or all of them.
8.2 Notwithstanding the foregoing, nothing herein shall be construed to require
NAC to indemnify the Indemnified Parties from any Claim arising from the sole
negligence, active negligence or willful misconduct of the Indemnified Parties. Nothing in
this indemnity shall be construed as authorizing any award of attorneys' fees in any action
on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and
liability regardless of whether any insurance policies are applicable. The policy limits do
not act as a limitation upon the amount of indemnification to be provided by the NAC.
9. INSURANCE
Prior to the Effective Date, City shall obtain, provide and maintain at its own
expense during the term of this Agreement or for other periods as specified in this
Agreement, policies of insurance of the type, amounts, terms and conditions described in
the Insurance Requirements attached hereto as Exhibit B, and incorporated herein by
reference.
10. CLAIMS
Unless a shorter time is specified elsewhere in this Agreement, before making its
final request for payment under this Agreement, NAC shall submit to City, in writing, all
claims for compensation under or arising out of this Agreement. Consultant's acceptance
of the final payment shall constitute a waiver of all claims for compensation under or
arising out of this Agreement except those previously made in writing and identified by
NAC in writing as unsettled at the time of its final request for payment. NAC and City
expressly agree that in addition to any claims filing requirements set forth in the
Agreement, NAC shall be required to file any claim NAC may have against City in strict
conformance with the Government Claims Act (Government Code sections 900 et seq.).
11. TERMINATION
11.1 In the event that either party fails or refuses to perform any of the provisions
of this Agreement at the time and in the manner required, that party shall be deemed in
default in the performance of this Agreement. If such default is not cured within a period
of two (2) calendar days, or if more than two (2) calendar days are reasonably required
to cure the default and the defaulting party fails to give adequate assurance of due
performance within two (2) calendar days after receipt of written notice of default,
specifying the nature of such default and the steps necessary to cure such default, and
thereafter diligently take steps to cure the default, the non -defaulting party may terminate
the Agreement forthwith by giving to the defaulting party written notice thereof.
11.2 Notwithstanding the above provisions, City shall have the right, at its sole
and absolute discretion and without cause, of terminating this Agreement at any time by
giving no less than thirty (30) calendar days' prior written notice to NAC. In the event of
termination under this Section, City shall pay NAC for the monthly lease rate and costs
Newport Aquatic Center Page 3
incurred up to the effective date of termination for which NAC has not been previously
paid.
12. NOTICES
All notices, demands, requests or approvals, including any change in mailing
address, to be given under the terms of this Agreement shall be given in writing, and
conclusively shall be deemed served when delivered personally, or on the third business
day after the deposit thereof in the United States mail, postage prepaid, first-class mail,
addressed as hereinafter provided. All notices, demands, requests or approvals shall be
addressed as follows:
Attn: Harbor Resources Manager
Harbor Resources
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92658
13. STANDARD PROVISIONS
Attn: Billy Whitford
NEWPORT AQUATIC CENTER
1 Whitecliffs Drive
Newport Beach, CA 92660
13.1 Assignments. Neither party shall assign its performance of this Agreement,
nor any part thereof, without the prior consent of the non -assigning party.
13.2 Governing Law and Venue. The laws of the State of California shall govern
this Agreement and all matters relating to it and any action brought relating to this
Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Orange, State of California.
13.3 Waiver. A waiver by either party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether of the
same or a different character.
13.4 Integrated Contract. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the parties hereto, and all
preliminary negotiations and agreements of whatsoever kind or nature are merged herein.
No verbal agreement or implied covenant shall be held to vary the provisions herein.
13.5 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or
against either party by reason of the authorship of the Agreement or any other rule of
construction which might otherwise apply.
13.6 Amendments. This Agreement may be modified or amended only by a
written document executed by both Newport Aquatic Center and City and approved as to
form by the City Attorney.
Newport Aquatic Center Page 4
13.7 Severability. If any term or portion of this Agreement is held to be invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions of this Agreement shall continue in full force and effect.
13.8 No Attorney's Fees. In the event of any dispute or legal action arising under
this Agreement, the prevailing party shall not be entitled to attorney's fees.
13.9 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one (1) and the same instrument.
[SIGNATURES ON NEXT PAGE]
Newport Aquatic Center Page 5
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the dates written below.
CITY OF NEWPORT BEACH,
A California municipal corporation
Date:
By:
Dave Of
City Manager
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: (o 12 [//7
1
City Attorney
ATTEST: �
Date: 4I17
M
Leilani I. E
City Clerk
NEWPORT AQUATIC CENTER,
CALIFORNIA CORPORATION
CEO
Date: =
By:
Jonatha Van Cleave
Secretary
[END OF SIGNATURES]
Attachments: Exhibit A — Schedule of Billing Rates
Exhibit B — Insurance Requirements
Newport Aquatic Center Page 6
EXHIBIT A
SCHEDULE OF BILLING RATES
MONTHLY RATE:
City shall pay NAC Five Hundred and 001100 Dollars ($500.00) per month, per vessel.
REFURBISHMENT:
NAC shall refurbish the Equipment prior to delivery to City. Refurbishment shall include:
• new paint;
• decals (of City's choice);
• new rub rails/fenders;
• new dock lines;
• propeller guards;
• running lights;
• VHR radio/hailer;
• Spotlight;
• bimini top;
• storage boxes;
• fire extinguisher;
• helm seat;
• PFD's, etc.
City shall pay NAC a flat fee of Three Thousand and 001100 Dollars ($3,000.00) per
vessel for refurbishment.
ENGINE:
NAC shall install a new 25hp outboard on each vessel, prior to delivery to City. City shall
pay NAC a flat fee of One Thousand Eight Hundred and 00/100 Dollars ($1,800.00)
per vessel.
WATER PUMP:
NAC shall install a new water pump for sea lion deterrence on each vessel, prior to
delivery to City. City shall pay NAC a flat fee of Five Hundred and 00/100 ($500.00) per
vessel.
The total cost for this entire Agreement shall not exceed Thirty Thousand Dollars and
001100 ($30,000.00).
Newport Aquatic Center Page A-1
EXHIBIT B
INSURANCE REQUIREMENTS
1. Provision of Insurance. Prior to the Effective Date, City shall obtain, provide and
maintain at its own expense during the term of this Agreement, policies of insurance of
the type and amounts described below and in a form satisfactory to NAC. City agrees to
provide insurance in accordance with requirements set forth here. If City uses existing
coverage to comply and that coverage does not meet these requirements, City agrees to
amend, supplement or endorse the existing coverage.
2. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact business of
insurance in the State of California, with an assigned policyholders' Rating of A- (or
higher) and Financial Size Category Class VII (or larger) in accordance with the latest
edition of Best's Key Rating Guide, unless otherwise approved by NAC.
3. Coverage Requirements.
A. Workers' Compensation Insurance. City shall maintain Workers'
Compensation Insurance, statutory limits, and Employer's Liability
Insurance with limits of at least one million dollars ($1,000,000) each
accident for bodily injury by accident and each employee for bodily injury by
disease in accordance with the laws of the State of California, Section 3700
of the Labor Code.
City shall submit to NAC, along with the certificate of insurance, a Waiver
of Subrogation endorsement in favor of NAC, its boards and commissions,
officers, agents, volunteers and employees.
B. General Liability Insurance. City shall maintain commercial general liability
insurance, and if necessary umbrella liability insurance, with coverage at
least as broad as provided by Insurance Services Office form CG 00 01, in
an amount not less than one million dollars ($1,000,000) per occurrence,
two million dollars ($2,000,000) general aggregate. The policy shall cover
liability arising from premises, operations, personal and advertising injury,
and liability assumed under an insured contract (including the tort liability of
another assumed in a business contract).
4. Other Insurance Requirements. The policies are to contain, or be endorsed to
contain, the following provisions:
A. Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation against
NAC, its boards and commissions, officers, agents, volunteers and
employees shall specifically allow City Consultant or others providing
insurance evidence in compliance with these requirements to waive their
right of recovery prior to a loss. City hereby waives its own right of recovery
Newport Aquatic Center Page B-1
against NAC, and shall require similar written express waivers from each of
its subconsultants.
B. Additional Insured Status. All liability policies including general liability,
excess liability, pollution liability, and automobile liability, if required, but not
including professional liability, shall provide or be endorsed to provide that
NAC, its boards and commissions, officers, agents, volunteers and
employees shall be included as insureds under such policies.
C. Primary and Non Contributory. All liability coverage shall apply on a primary
basis and shall not require contribution from any insurance or self-insurance
maintained by NAC.
D. Notice of Cancellation. All policies shall provide NAC with thirty (30)
calendar days notice of cancellation (except for nonpayment for which ten
(10) calendar days notice is required) or nonrenewal of coverage for each
required coverage.
5. Additional Agreements Between the Parties. The parties hereby agree to the
following:
A. Evidence of Insurance. City shall provide certificates of insurance to NAC
as evidence of the insurance coverage required herein, along with a waiver
of subrogation endorsement for workers' compensation and other
endorsements as specified herein for each coverage. Insurance certificates
and endorsement must be approved by NAC prior to commencement of
performance. Current certification of insurance shall be kept on file with
NAC at all times during the term of this Agreement. NAC reserves the right
to require complete, certified copies of all required insurance policies, at any
time.
B. Enforcement of Agreement Provisions. City acknowledges and agrees that
any actual or alleged failure on the part of NAC to inform City of non-
compliance with any requirement imposes no additional obligations on NAC
nor does it waive any rights hereunder.
C. Requirements not Limiting. Requirements of specific coverage features or
limits contained in this Section are not intended as a limitation on coverage,
limits or other requirements, or a waiver of any coverage normally provided
by any insurance. Specific reference to a given coverage feature is for
purposes of clarification only as it pertains to a given issue and is not
intended by any party or insured to be all inclusive, or to the exclusion of
other coverage, or a waiver of any type. If the City maintains higher limits
than the minimums shown above, NAC requires and shall be entitled to
coverage for higher limits maintained by the City. Any available insurance
proceeds in excess of the specified minimum limits of insurance and
coverage shall be available to the NAC.
Newport Aquatic Center Page 9
D. Timely Notice of Claims. City shall give NAC prompt and timely notice of
claims made or suits instituted that arise out of or result from City's
performance under this Agreement, and that involve or may involve
coverage under any of the required liability policies. NAC assumes no
obligation or liability by such notice, but has the right (but not the duty) to
monitor the handling of any such claim or claims if they are likely to involve
NAC.
E. City's Insurance. City shall also procure and maintain, at its own cost and
expense, any additional kinds of insurance, which in its own judgment may
be necessary for its proper protection and prosecution of the work.
Newport Aquatic Center Page 10