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HomeMy WebLinkAboutC-5446 - PSA for Educational OutreachOCDE AGREEMENT #= 42312 J PROFESSIONAL SERVICES AGREEMENT f WITH ORANGE COUNTY SUPERINTENDENT OF SCHOOLS FOR EDUCATIONAL OUTREACH THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into as of this 14th day of September, 2015 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and ORANGE COUNTY SUPERINTENDENT OF SCHOOLS, a California governmental organization ("Consultant"), whose address is 200 Kalmus Drive, Costa Mesa, California 92626, and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City desires to engage Consultant to provide environmental education program administration for Newport Beach kindergarten through twelfth grade students, teachers and community members for water science educational outreach ("Project"). C. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the professional services described in this Agreement. D. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: TERM The term of this Agreement shall commence on the Effective Date, and shall terminate on June 30, 2016, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference ("Services" or "Work"). City may elect to delete certain Services within the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE 3.1 Time is of the essence in the performance of Services under this Agreement and Consultant shall perform the Services in accordance with the schedule included in Exhibit A. In the absence of a specific schedule, the Services shall be performed to completion in a diligent and timely manner. The failure by Consultant to strictly adhere to the schedule set forth in Exhibit A, if any, or perform the Services in a diligent and timely manner may result in termination of this Agreement by City. 3.2 Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the Services to be provided for the Project, each party hereby agrees to provide notice within two (2) calendar days of the occurrence causing the delay to the other party so that all delays can be addressed. 3.3 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator as defined herein not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.4 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by hand -delivery or mail. 4. COMPENSATION TO CONSULTANT 4.1 City shall pay Consultant for the Services on a time and expense not -to - exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Forty Five Thousand Dollars and 00/100 ($45,000.00), without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.2 Consultant shall submit monthly invoices to City describing the Work performed the preceding month. Consultant's bills shall include the name of the person who performed the Work, a brief description of the Services performed and/or the specific task in the Scope of Services to which it relates, the date the Services were performed, the number of hours spent on all Work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) calendar days after approval of the monthly invoice by City staff. 4.3 City shall reimburse Consultant only for those costs or expenses specifically identified in Exhibit B to this Agreement or specifically approved in writing in advance by City. Orange County Superintendent of Schools Page 2 4.4 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any Work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 5. PROJECT MANAGER 5.1 Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated Lori Kiesser to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. 5.2 Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of Services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 5.3 If Consultant is performing inspection services for City, the Project Manager and any other assigned staff shall be equipped with a cellular phone to communicate with City staff. The Project Manager's cellular phone number shall be provided to City. 6. ADMINISTRATION This Agreement will be administered by the Public Works Department. City's Public Works Director 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. 7. CITY'S RESPONSIBILITIES To assist Consultant in the execution of its responsibilities under this Agreement, City agrees to provide access to and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's Work schedule. 8. STANDARD OF CARE 8.1 All of the Services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the Services required by this Agreement, and that it will perform all Services in a manner commensurate with the highest professional Orange County Superintendent of Schools Page 3 standards. All Services shall be performed by qualified and experienced personnel who are not employed by City. By delivery of completed Work, Consultant certifies that the Work conforms to the requirements of this Agreement, all applicable federal, state and local laws, and the highest professional standard. 8.2 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force and effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's Work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS 9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers and employees (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"), which may arise from or in any manner relate (directly or indirectly) to any breach 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 Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable, or any or all of them). 9.2 Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole 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 Consultant. Orange County Superintendent of Schools Page 4 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the Work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. No civil service status or other right of employment shall accrue to Consultant or its employees. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the Work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance of the Work or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the Services. 11. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the Work to be performed. City agrees to cooperate with the Consultant on the Project. 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant 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 C, and incorporated herein by reference. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the Services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall Orange County Superintendent of Schools Page 5 be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint -venture or syndicate or co -tenancy, which shall result in changing the control of Consultant. Control means fifty percent (50%) or more of the voting power or twenty-five percent (25%) or more of the assets of the corporation, partnership or joint -venture. 16. SUBCONTRACTING The subcontractors authorized by City, if any, to perform Work on this Project are identified in Exhibit A. Consultant shall be fully responsible to City for all acts and omissions of any subcontractor. Nothing in this Agreement shall create any contractual relationship between City and any subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. City is an intended beneficiary of any Work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and City. Except as specifically authorized herein, the Services to be provided under this Agreement shall not be otherwise assigned, transferred, contracted or subcontracted out without the prior written approval of City. 17. OWNERSHIP OF DOCUMENTS 17.1 Each and every report, draft, map, record, plan, document and other writing produced, including but not limited to, websites, blogs, social media accounts and applications (hereinafter "Documents"), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Additionally, all material posted in cyberspace by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents, including all logins and password information to City upon prior written request. 17.2 Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant, and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. Orange County Superintendent of Schools Page 6 17.3 All written documents shall be transmitted to City in formats compatible with Microsoft Office and/or viewable with Adobe Acrobat. 18. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the Services in this Agreement, shall be kept confidential unless City expressly authorizes in writing the release of information. 19. INTELLECTUAL PROPERTY INDEMNITY Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement or alleged infringement of any United States' letters patent, trademark, or copyright, including costs, contained in Consultant's Documents provided under this Agreement. 20. RECORDS Consultant shall keep records and invoices in connection with the Services to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any Services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all Work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 21. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue Work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 22. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the Work accomplished by Consultant, the additional design, construction and/or restoration expense shall be Orange County Superintendent of Schools Page 7 borne by Consultant. Nothing in this Section is intended to limit City's rights under the law or any other sections of this Agreement. 23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 24. CONFLICTS OF INTEREST 24.1 Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act'), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the Work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 24.2 If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 25. NOTICES 25.1 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. 25.2 All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: David A. Webb, Public Works Director Public Works Department City of Newport Beach 100 Civic Center Drive PO Box 1768 Newport Beach, CA 92658 25.3 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attn: Lori Kiesser Orange County Superintendent of Schools 200 Kalmus Drive Costa Mesa, CA 92626 Orange County Superintendent of Schools Page 8 With a copy to: Attn: Patricia McCaughey Orange County Superintendent of Schools 200 Kalmus Drive Costa Mesa, CA 92626 26. CLAIMS Unless a shorter time is specified elsewhere in this Agreement, before making its final request for payment under this Agreement, Consultant 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 Consultant in writing as unsettled at the time of its final request for payment. Consultant and City expressly agree that in addition to any claims filing requirements set forth in the Agreement, Consultant shall be required to file any claim Consultant may have against City in strict conformance with the Government Claims Act (Government Code sections 900 et seq.). 27. TERMINATION 27.1 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. 27.2 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 seven (7) calendar days' prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for Services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 28. STANDARD PROVISIONS 28.1 Recitals. City and Consultant acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. Orange County Superintendent of Schools Page 9 28.2 Compliance with all Laws. Consultant shall, at its own cost and expense, comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all Work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 28.3 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. 28.4 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. 28.5 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 28.6 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. 28.7 Amendments. This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 28.8 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. 28.9 Controlling 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. 28.10 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, sexual orientation, age or any other impermissible basis under law. 28.11 No Attorneys' Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. Orange County Superintendent of Schools Page 10 28.12 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] Orange County Superintendent of Schools Page 11 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATT R EY'S OFFICE Date: G V By: W Aaron C. Harp CAV 0'"cl-Pr City Attorney ATTEST: Date: City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: <<� By::j David A. Webb Public Works Director CONSULTANT: Orange County Superintendent of Schools, a California governmental organization Date: By: Patricia McCaughey Coordinator, Purchasing, Contracts and Transportation [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Exhibit C — Insurance Requirements Orange County Superintendent of Schools Page 12 EXHIBIT A SCOPE OF SERVICES Orange County Superintendent of Schools Page A-1 • • • • • • • • • • • • N N N N N C N �❑ y., N O J a R �� a"'v�vE, rL wJ' p; a� vEilL a Zvi wo'a • • • • • • • • • • • • • • • • • y L 0 o E CL s q d a Qj C m .� i.y N ky C Vl 9 120 E o p bn'u a L N=9 K O al�pp+ O O z 'C K 3 a 7 Fi C F E N V d FF W J ryi ,G Ci 'G p0 L obt r tm o J> o >.a.npo z• • a` a w3c"aH '0cayx3 3 u a c c"a c"az"F=wv� Y N N 7 vi �p F mac. tPC ate (o / ƒk\ O- 71 §2] {/ \}f \ a•& ■kms fm +,\ )){ 24Z «ƒ]! 6@ \\ \)\) 00 `\ \\ -�\\ & C \\ { }22[ _ ;I\2 ° }( [ j e g . . )\ ®6k o jƒ4 mg 2 J . � a®; ME{\Q ` 2� ° EXHIBIT B SCHEDULE OF BILLING RATES Orange County Superintendent of Schools Page B-1 Inside the Outdoors Proposal City of Newport Beach 2015-16 Resources Water education Field Trips for grades K-8, curriculum Field Trips updates, and equipment 2,200 $25,000 $40,780 $65,780 Promotional replacement Giveaways "Drip Drop" Traveling 2,000 $1,500 $1,500 $3,000 Scientist presentation Traveling Scientist (sponsorship for eligible 500 $2,500 $1,500 $4,000 schools), curriculum updates, and equipment replacement High School Service- Water education and water Learning conservation Service -Learning 150 $13,500 $11,500 $25,000 Media/Marketing projects 4,000 $2,500 $2,500 $5,000 Water education offered at community water education Community Water events such as Newport Bay's Education Events Earth Day event provided in 3,000 $o $15,000 $15,000 partnership and co -branded with City of Newport Beach logo Teacher resources and Teacher Education webinars focused on and the Environment incorporating the EEf 425 $0 $1,000 $1,000 Initiative (EEI) Environmental Principles and Resources Concepts into classroom lessons Promotional giveaways such as water bottles, wrist bands, Promotional temporary tattoos, pens, post - Giveaways its, etc. provided in 2,000 $1,500 $1,500 $3,000 partnership and co -branded with City of Newport Beach logo Program materials, press releases and social media posts; all marketing co- Media/Marketing branded with City of Newport 4,000 $2,500 $2,500 $5,000 Beachlogo EXHIBIT C INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES 1. Provision of Insurance. Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant 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 City. Consultant agrees to provide insurance in accordance with requirements set forth here. If Consultant uses existing coverage to comply and that coverage does not meet these requirements, Consultant 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 the City's Risk Manager. 3. Coverage Requirements. A. Workers' Compensation Insurance. Consultant 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. Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. B. General Liability Insurance. Consultant 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). C. Automobile Liability Insurance. Consultant shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of Consultant arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit each accident. Orange County Superintendent of Schools Page C-1 4. Other Insurance Reguirements. 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 City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, 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 City and its officers, officials, employees, and agents 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 City. D. Notice of Cancellation. All policies shall provide City 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. Consultant shall provide certificates of insurance to City 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 City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. City reserves the right to require complete, certified copies of all required insurance policies, at any time. B. City's Right to Revise Requirements. City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Consultant sixty (60) calendar days advance written notice of such change. If such change results in substantial additional cost to Consultant, City and Consultant may renegotiate Consultant's compensation. C. Enforcement of Agreement Provisions. Consultant acknowledges and agrees that any actual or alleged failure on the part of City to inform Orange County Superintendent of Schools Page C-2 Consultant of non-compliance with any requirement imposes no additional obligations on City nor does it waive any rights hereunder. D. 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 Consultant maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. E. Self-insured Retentions. Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self- insurance will not be considered to comply with these requirements unless approved by City. F. City Remedies for Non -Compliance. If Consultant or any subconsultant fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this Agreement, or to suspend Consultant's right to proceed until proper evidence of insurance is provided. Any amounts paid by City shall, at City's sole option, be deducted from amounts payable to Consultant or reimbursed by Consultant upon demand. G. Timely Notice of Claims. Contractor shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Contractor's performance under this Contract, and that involve or may involve coverage under any of the required liability policies. City 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 City. H. Consultant's Insurance. Consultant 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. Orange County Superintendent of Schools Page C-3 CERTIFICATE OF INSURANCE CHECKLIST City of Newport Beach This checklist is comprised of requirements as outlined by the City of Newport Beach. * Date Received: 1/4/16 Dept./Contact Received From: Raymund Date Completed: 1/4/16 Sent to: Raymund By: Chris Company/Person required to have certificate: Orange County Department of Education Type of contract: All Others GENERAL LIABILITY EFFECTIVE/EXPIRATION DATE: 7/1/15 to 7/1/16 A. INSURANCE COMPANY: MOC-ASCIP B. AM BEST RATING (A-: VII or greater): Not Rated— Self Insured C. ADMITTED Company (Must be California Admitted): Is Company admitted in California? ❑ Yes ❑ No D. LIMITS (Must be $1 M or greater): What is limit provided? $5,000,000 CSL E. ADDITIONAL INSURED ENDORSEMENT — please attach ® Yes ❑ No F. PRODUCTS AND COMPLETED OPERATIONS (Must INSURANCE COMPANY: MOC-ASCIP include): Is it included? (completed Operations status does B. not apply to Waste Haulers or Recreation) ❑ Yes ❑ No G. ADDITIONAL INSURED FOR PRODUCTS AND ADMITTED COMPANY (Must be California Admitted): COMPLETED OPERATIONS ENDORSEMENT (completed Operations status does not apply to Waste Haulers) ❑ Yes ❑ No H. ADDITIONAL INSURED WORDING TO INCLUDE (The City LIMITS - If Employees (Must be $1 M min. BI & PD and $500,000 its officers, officials, employees and volunteers): Is it included? ® Yes ❑ No I. PRIMARY & NON-CONTRIBUTORY WORDING (Must be LIMITS Waiver of Auto Insurance / Proof of coverage (if individual) included): Is it included? ® Yes ❑ No J. CAUTION! (Confirm that loss or liability of the named insured F. is not limited solely by their negligence) Does endorsement include "solely by negligence' wording? ❑ Yes ®No K. ELECTED SCMAF COVERAGE (RECREATION ONLY): ® N/A ❑ Yes ❑ No L. NOTICE OF CANCELLATION: ❑ N/A ® Yes ❑ No 11. AUTOMOBILE LIABILITY EFFECTIVE/EXPIRATION DATE: 711/15 to 7/1/16 A. INSURANCE COMPANY: MOC-ASCIP B. AM BEST RATING (A-: VII or greater) Not Rated— Self Insured C. ADMITTED COMPANY (Must be California Admitted): Is Company admitted in California? ❑ Yes ❑ No D. LIMITS - If Employees (Must be $1 M min. BI & PD and $500,000 UM, $2M min for Waste Haulers): What is limits provided? $5,000,000 E. LIMITS Waiver of Auto Insurance / Proof of coverage (if individual) (What is limits provided?) N/A F. PRIMARY & NON-CONTRIBUTORY WORDING (For Waste Haulers only): ® NIA ❑ Yes ❑ No G. HIRED AND NON -OWNED AUTO ONLY: ❑ NIA ® Yes ❑ No H. NOTICE OF CANCELLATION: ❑ N/A ® Yes ❑ No III. WORKERS' COMPENSATION EFFECTIVE/EXPIRATION DATE: Not Provided (Previously approved by Sheri) A. INSURANCE COMPANY: Western Orange Co Self -Funded Workers' Comp Agency B. AM BEST RATING (A-: VII or greater): Not rated— Self Insured C. ADMITTED Company (Must be California Admitted): ❑ Yes ❑ No D. WORKERS' COMPENSATION LIMIT: Statutory ❑ Yes ❑ No E. EMPLOYERS' LIABILITY LIMIT (Must be $1M or greater) F. WAIVER OF SUBROGATION (To include): Is it included? ❑ Yes ❑ No G. SIGNED WORKERS' COMPENSATION EXEMPTION FORM: ® N/A ❑ Yes ❑ No H. NOTICE OF CANCELLATION: ❑ N/A ® Yes ❑ No ADDITIONAL COVERAGE'S THAT MAYBE REQUIRED IV. PROFESSIONAL LIABILITY ® N/A ❑ Yes ❑ No V POLLUTION LIABILITY ® NIA ❑ Yes ❑ No V BUILDERS RISK ® N/A ❑ Yes ❑ No 1/4/16 Agent of Alliant Insurance Services Date Broker of record for the City of Newport Beach RISK MANAGEMENT APPROVAL REQUIRED (Non -admitted carrier rated less than _: Self Insured Retention or Deductible greater than $ ) ❑ N/A ® Yes ❑ No Reason for Risk Management approval/exception/waiver: Workers' Comp needs Risk Managements approval 3/21/13 Sheri Anderson approves the WC letter. Approved: Risk Management Date * Subject to the terms of the contract. AGREEMENT NUMBER: 40739 T PROFESSIONAL SERVICES AGREEMENT WITH ORANGE COUNTY SUPERINTENDENT OF SCHOOLS FOR r J EDUCATIONAL OUTREACH THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into as of this 3rd day of June, 2014 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City'), and ORANGE COUNTY SUPERINTENDENT OF SCHOOLS, a California governmental organization ("Superintendent"), whose address is 200 Kalmus Drive, Costa Mesa, CA 92626, and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City desires to engage Superintendent to provide environmental education program administration for Newport Beach kindergarten through twelfth grade students, teachers and community members for water science Educational Outreach ("Project"). C. Superintendent possesses the skill, experience, ability, background, certification and knowledge to provide the professional services described in this Agreement. D. City has solicited and received a proposal from Superintendent, has reviewed the previous experience and evaluated the expertise of Superintendent, and desires to retain Superintendent to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the Effective Date, and shall terminate on June 30, 2015, unless terminated earlier as set forth herein. In no event shall the term of this Agreement exceed five (5) years. 2. SERVICES TO BE PERFORMED Superintendent shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference ("Services" or "Work"). City may elect to delete certain Services within the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE 3.1 Time is of the essence in the performance of Services under this Agreement and Superintendent shall perform the Services in accordance with the schedule included in Exhibit A. In the absence of a specific schedule, the Services shall be performed to completion in a diligent and timely manner. The failure by Superintendent to strictly adhere to the schedule set forth in Exhibit A, if any, or perform the Services in a diligent and timely manner may result in termination of this Agreement by City. 3.2 Notwithstanding the foregoing, Superintendent shall not be responsible for delays due to causes beyond Superintendent's reasonable control. However, in the case of any such delay in the Services to be provided for the Project, each party hereby agrees to provide notice within two (2) calendar days of the occurrence causing the delay to the other party so that all delays can be addressed. 3.3 Superintendent shall submit all requests for extensions of time for performance in writing to the Project Administrator as defined herein not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Superintendent's control. 3.4 For all time periods not specifically set forth herein, Superintendent shall respond in the most expedient and appropriate manner under the circumstances, by hand -delivery or mail. 4. COMPENSATION TO SUPERINTENDENT 4.1 City shall pay Superintendent for the Services on a time and expense not - to -exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Superintendent's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Forty -Five Thousand Dollars and 00/100 ($45,000.00), without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.2 Superintendent shall submit monthly invoices to City describing the Work performed the preceding month. Superintendent's bills shall include the name of the person who performed the Work, a brief description of the Services performed and/or the specific task in the Scope of Services to which it relates, the date the Services were performed, the number of hours spent on all Work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Superintendent no later than thirty (30) calendar days after approval of the monthly invoice by City staff. 4.3 City shall reimburse Superintendent only for those costs or expenses specifically identified in Exhibit B to this Agreement or specifically approved in writing in advance by City. Orange County Superintendent of Schools Page 2 4.4 Superintendent shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any Work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 5. PROJECT MANAGER 5.1 Superintendent shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Superintendent has designated Lori Kiesser to be its Project Manager. Superintendent shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. 5.2 Superintendent, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of Services upon written request of City. Superintendent warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 5.3 If Superintendent is performing inspection services for City, the Project Manager and any other assigned staff shall be equipped with a cellular phone to communicate with City staff. The Project Manager's cellular phone number shall be provided to City. 6. ADMINISTRATION This Agreement will be administered by the Public Works. City's Water Quality 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. 7. CITY'S RESPONSIBILITIES To assist Superintendent in the execution of its responsibilities under this Agreement, City agrees to provide access to and upon request of Superintendent, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Superintendent's Work schedule. 8. STANDARD OF CARE 8.1 All of the Services shall be performed by Superintendent or under Superintendent's supervision. Superintendent represents that it possesses the Orange County Superintendent of Schools Page 3 professional and technical personnel required to perform the Services required by this Agreement, and that it will perform all Services in a manner commensurate with the highest professional standards. For purposes of this Agreement, the phrase "highest professional standards" shall mean those standards of practice recognized by one (1) or more first-class firms performing similar work under similar circumstances. 8.2 All Services shall be performed by qualified and experienced personnel who are not employed by City. By delivery of completed Work, Superintendent certifies that the Work conforms to the requirements of this Agreement, all applicable federal, state and local laws, and the highest professional standard. 8.3 Superintendent represents and warrants to City that it has, shall obtain, and shall keep in full force and effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Superintendent to practice its profession. Superintendent shall maintain a City of Newport Beach business license during the term of this Agreement. 8.4 Superintendent shall not be responsible for delay, nor shall Superintendent be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, acts of God, or the failure of City to furnish timely information or to approve or disapprove Superintendent's Work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS 9.1 To the fullest extent permitted by law, Superintendent shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers and employees (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"), which may arise from or in any manner relate (directly or indirectly) to any breach 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 Superintendent's presence or activities conducted on the Project (including the negligent, reckless, and/or willful acts, errors and/or omissions of Superintendent, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable, or any or all of them). 9.2 Notwithstanding the foregoing, nothing herein shall be construed to require Superintendent to indemnify the Indemnified Parties from any Claim arising from the sole 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 Orange County Superintendent of Schools Page 4 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 Superintendent. 10. INDEPENDENT CONTRACTOR It is understood that City retains Superintendent on an independent contractor basis and Superintendent is not an agent or employee of City. The manner and means of conducting the Work are under the control of Superintendent, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. No civil service status or other right of employment shall accrue to Superintendent or its employees. Nothing in this Agreement shall be deemed to constitute approval for Superintendent or any of Superintendent's employees or agents, to be the agents or employees of City. Superintendent shall have the responsibility for and control over the means of performing the Work, provided that Superintendent is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Superintendent as to the details of the performance of the Work or to exercise a measure of control over Superintendent shall mean only that Superintendent shall follow the desires of City with respect to the results of the Services. 11. COOPERATION Superintendent agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the Work to be performed. City agrees to cooperate with the Superintendent on the Project. 12. CITY POLICY Superintendent shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Superintendent is responsible for keeping the Project Administrator informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Superintendent's indemnification of City, and prior to commencement of Work, Superintendent 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 C, and incorporated herein by reference. Orange County Superintendent of Schools Page 5 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the Services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Superintendent, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Superintendent is a partnership or joint -venture or syndicate or co -tenancy, which shall result in changing the control of Superintendent. Control means fifty percent (50%) or more of the voting power or twenty-five percent (25%) or more of the assets of the corporation, partnership orjoint-venture. 16. SUBCONTRACTING The subcontractors authorized by City, if any, to perform Work on this Project are identified in Exhibit A. Superintendent shall be fully responsible to City for all acts and omissions of any subcontractor. Nothing in this Agreement shall create any contractual relationship between City and any subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. City is an intended beneficiary of any Work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and City. Except as specifically authorized herein, the Services to be provided under this Agreement shall not be otherwise assigned, transferred, contracted or subcontracted out without the prior written approval of City. 17. OWNERSHIP OF DOCUMENTS 17.1 Each and every report, draft, map, record, plan, document and other writing produced, including but not limited to, websites, blogs, social media accounts and applications related specifically to the promotion of the partnership (hereinafter "Documents'), prepared or caused to be prepared by Superintendent, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Superintendent or any other party. Additionally, all Documents posted in cyberspace by Superintendent, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Superintendent or any other party. Superintendent shall, at Superintendent's expense, provide such Documents, including all logins and password information to City upon prior written request. 17.2 Documents, including drawings and specifications, prepared by Superintendent pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific Orange County Superintendent of Schools Page 6 written authorization from Superintendent will be at City's sole risk and without liability to Superintendent. Further, any and all liability arising out of changes made to Superintendent's deliverables under this Agreement by City or persons other than Superintendent is waived against Superintendent, and City assumes full responsibility for such changes unless City has given Superintendent prior notice and has received from Superintendent written consent for such changes. 17.3 All written documents shall be transmitted to City in formats compatible with Microsoft Office and/or viewable with Adobe Acrobat. 18. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the Services in this Agreement, shall be kept confidential unless City expressly authorizes in writing the release of information. 19. INTELLECTUAL PROPERTY INDEMNITY Superintendent shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement or alleged infringement of any United States' letters patent, trademark, or copyright, including costs, contained in Superintendent's Documents provided under this Agreement. 20. RECORDS Superintendent shall keep records and invoices in connection with the Services to be performed under this Agreement. Superintendent shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any Services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Superintendent under this Agreement. All such records and invoices shall be clearly identifiable. Superintendent shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Superintendent shall allow inspection of all Work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Superintendent under this Agreement. 21. WITHHOLDINGS City may withhold payment to Superintendent of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Superintendent shall not discontinue Work as a result of such withholding. Superintendent shall have an immediate right to appeal to the City Manager or designee with respect to such disputed sums. Superintendent shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the Orange County Superintendent of Schools Page 7 time period, from the date of withholding of any amounts found to have been improperly withheld. 22. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Superintendent which result in expense to City greater than what would have resulted if there were not errors or omissions in the Work accomplished by Superintendent, the additional design, construction and/or restoration expense shall be borne by Superintendent. Nothing in this Section is intended to limit City's rights under the law or any other sections of this Agreement. 23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other consultants in connection with the Project. 24. CONFLICTS OF INTEREST 24.1 Superintendent or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the Work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 24.2 If subject to the Act, Superintendent shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Superintendent shall indemnify and hold harmless City for any and all claims for damages resulting from Superintendent's violation of this Section. 25. NOTICES 25.1 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. 25.2 All notices, demands, requests or approvals from Superintendent to City shall be addressed to City at: Attn: Shane Burckle, Water Quality Manager Public Works City of Newport Beach 100 Civic Center Drive PO Box 1768 Newport Beach, CA 92658 Orange County Superintendent of Schools Page 8 25.3 All notices, demands, requests or approvals from City to Superintendent shall be addressed to Superintendent at: Attn: Lori Kiesser ORANGE COUNTY SUPERINTENDENT OF SCHOOLS 200 Kalmus Drive Costa Mesa, CA 92626 With a copy to Attn: Patricia McCaughey ORANGE COUNTY SUPERINTENDENT OF SCHOOLS 200 Kalmus Drive Costa Mesa, CA 92626 26. CLAIMS Unless a shorter time is specified elsewhere in this Agreement, before making its final request for payment under this Agreement, Superintendent shall submit to City, in writing, all claims for compensation under or arising out of this Agreement. Superintendent'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 Superintendent in writing as unsettled at the time of its final request for payment. Superintendent and City expressly agree that in addition to any claims filing requirements set forth in the Agreement, Superintendent shall be required to file any claim Superintendent may have against City in strict conformance with the Government Claims Act (Government Code sections 900 et seq.). 27. TERMINATION 27.1 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. 27.2 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 seven (7) calendar days' prior written notice to Superintendent. In the event of termination under this Section, City shall pay Superintendent for Services satisfactorily performed and costs incurred up to the effective date of termination for which Superintendent has not been previously paid. On the effective date of termination, Superintendent shall deliver to City all reports, Documents and other Orange County Superintendent of Schools Page 9 information developed or accumulated in the performance of this Agreement, whether in draft or final form. 28. STANDARD PROVISIONS 28.1 Recitals. City and Superintendent acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. 28.2 Compliance with all Laws. Superintendent shall, at its own cost and expense, comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all Work prepared by Superintendent shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 28.3 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. 28.4 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. 28.5 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 28.6 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. 28.7 Amendments. This Agreement may be modified or amended only by a written document executed by both Superintendent and City and approved as to form by the City Attorney. 28.8 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. 28.9 Controlling 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. Orange County Superintendent of Schools Page 10 28.10 Equal Opportunity Employment. Superintendent represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex, age or any other impermissible basis under law. 28.11 No Attorneys' Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. 28.12 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] Orange County Superintendent of Schools Page 11 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTO ZNEY'S OFFICE Date: Gam-- C._ By: Aaron C. Harp City Attorney ATTEST: Date: By: boil"— Leilani I. Brown City Clerk r.a U c 0R NIP CITY OF NEWPORT BEACH, a California municipal corporation Date: --2- -- By:- David A. Webb Public Works Director SUPERINTENDENT: ORANGE COUNTY SUPERINTENDENT OF SCHOOLS, a California n gove m%�ental organization Date: `Z 7� iii B t� ait'l y: Patricia McCaughe Coordinator, Purchasing, Contracts and Transportation [END OF SIGNATURES] Attachments: Exhibit A - Scope of Services Exhibit B - Schedule of Billing Rates Exhibit C - Insurance Requirements Orange County Superintendent of Schools Page 12 EXHIBIT A SCOPE OF SERVICES Orange County Superintendent of Schools Page A-1 F Q O Q O ti Q 0 Q 00 Q O N N N . .. . . .. . .. . . . .. . . Dbpi d _R d F SYR. h x D� a. p � � d�❑ a o •u i L O d ° 6 a R U .Mi •� R C ah � �' r d� 7 •6 E p p y .R. osaE N c y O m E u ^. CR L1 •C R y VJ C79 a 7 r °os oQ,pp ax w `GWSoW �gmEa�W £ v=_ z u `a � <+ w a d U •i i Q R � R � �y d y 'v Y v p C E �¢L o 4 L N d h d u 00 vdi" •d d F r y W C p A G � d m o d L •a' y 'v ? y m � `d � � � �, u CQ°j z �, •d � 7 rye >, N „ .5 N o u v j y .°,' = y W fIF.1I •3 o Rs :;doss' a a �rs iF. � a3i ER t ,� o _ _� R °oW p � ✓i R Yi d L' G� Q L •N m 4Z.n 03.4vd� "F'oW�rnowW►d ° e`nw �;oW N P d [/] = O d .fl O V `�' d G d 3 0.y � �' r � y C d R •p �= d F�zy yQvyGV ��=y odm=a`K m a d p w3aaRF.daNx3 i g d d a o U3d90zFF�ah m d d d o <+ p x R F ` §@) � \�C wz{ E \ \w § §) ) \ ) \ ] �k 5 / . 22 ■ « t= !3]) E {\}\\ t -JE§; �!■e;; 3y; k!/]) | � , /, EXHIBIT B SCHEDULE OF BILLING RATES Orange County Superintendent of Schools Page B-1 Inside the Outdoors Proposal City of Newport Beach 2014-2015 Pragrae lidsettptloo Participants C1ty of Usuk%9, TOO Served Niedeport 8900 FvAft 0" Water education Field Trips to Wild Wetlands (3rd grade), Field Trips Upper Newport Bay (4th 2,200 $27,125 $15,000 $42,125 grade), and Rancho Sonado (5th grade) "Drip Drop" Traveling Scientist presentation Traveling Scientist (sponsorship for eligible 500 $1,875 $1,500 $3,375 schools), curriculum updates, and equipment replacement High School Service- Water education and water Learning conservation Service -Learning 150 $13,500 $11,500 $25,000 projects Water education offend at community water education Community Water events such as Newport Bay's Education Events Earth Day event provided in 3,000 $0 $15,000 $15,000 partnership and co -branded with City of Newport Beach logo Teacher resources focused on Teacher Education incorporating the EEI and the Environment Environmental Principles and 425 $0 $1,000 $1,000 Initiative (EEI) Concepts into classroom Resources lessons (17 classrooms/25 students per classroom) Promotional giveaways such as water bottles, wrist bands, Promotional temporary tattoos, pens, post - Giveaways its, etc. provided in 2,000 $0 $5,000 $5,000 partnership and co -branded with City of Newport Beach logo Production and editing of public service announcement; co -branded press releases and Media/Marketing social media posts; all media 4,000 $2,500 $2,500 $5,000 and marketing co -branded with City of Newport Beach logo Total i 12,275 11 $45,000 $51,500 11 $96,500 EXHIBIT C INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES 1. Provision of Insurance. Without limiting Superintendent's indemnification of City, and prior to commencement of Work, Superintendent 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 City. Superintendent agrees to provide insurance in accordance with requirements set forth here. If Superintendent uses existing coverage to comply and that coverage does not meet these requirements, Superintendent 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 the City's Risk Manager. 3. Coverage Requirements. A. Workers' Compensation Insurance. Superintendent 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. Superintendent shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. B. General Liability Insurance. Superintendent 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, one million dollars ($1,000,000) 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) with no endorsement or modification limiting the scope of coverage for liability assumed under a contract. C. Automobile Liability Insurance. Superintendent shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of Superintendent arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non - Orange County Superintendent of Schools Page C-1 owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit each accident. 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 mutually endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers and Superintendent, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Superintendent or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Superintendent hereby waives its own right of recovery against City and shall require similar written express waivers from each of its subconsultants. City hereby waives its own right of recovery against Superintendent. 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 City and its officers, officials, employees, and agents 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 City. D. Notice of Cancellation. All policies shall provide City 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. Superintendent shall provide certificates of insurance to City 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 City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. City reserves the right to require complete, certified copies of all required insurance policies, at any time. B. City's Right to Revise Requirements. City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Superintendent sixty (60) calendar days Orange County Superintendent of Schools Page C-2 advance written notice of such change. If such change results in substantial additional cost to Superintendent, City and Superintendent may renegotiate Superintendent's compensation. C. Enforcement of Agreement Provisions. Superintendent acknowledges and agrees that any actual or alleged failure on the part of City to inform Superintendent of non-compliance with any requirement imposes no additional obligations on City nor does it waive any rights hereunder. D. 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. E. Self-insured Retentions. Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self- insurance will not be considered to comply with these requirements unless approved by City. F. City Remedies for Non -Compliance. If Superintendent or any subconsultant fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this Agreement, or to suspend Superintendent's right to proceed until proper evidence of insurance is provided. Any amounts paid by City shall, at City's sole option, be deducted from amounts payable to Superintendent or reimbursed by Superintendent upon demand. G. Timely Notice of Claims. Contractor shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Contractor's performance under this Contract, and that involve or may involve coverage under any of the required liability policies. City 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 City. H. Superintendent's Insurance. Superintendent 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. Orange County Superintendent of Schools Page C-3 CERTIFICATE OF INSURANCE CHECKLIST City of Newport Beach This checklist is comprised of requirements as outlined by the City of Newport Beach.' Date Received: 7/30/14 Date Completed: 8/4/14 Dept./Contact Received From: Raymund Sent to: Raymund By: Chris Company/Person required to have certificate: Orange County Department of Education Type of contract: All Others GENERAL LIABILITY EFFECTIVE/EXPIRATION DATE: 7/1/14 to 7/1/15 A. INSURANCE COMPANY: MOC-ASCIP B. AM BEST RATING (A-: VII or greater): Not Rated— Self Insured C. ADMITTED Company (Must be California Admitted): Is Company admitted in California? ❑ Yes ❑ No D. LIMITS (Must be $1 M or greater): What is limit provided? $5,000,000 CSL E. ADDITIONAL INSURED ENDORSEMENT— please attach F. PRODUCTS AND COMPLETED OPERATIONS (Must include): Is it included? (completed Operations status does not apply to Waste Haulers or Recreation) G. ADDITIONAL INSURED FOR PRODUCTS AND COMPLETED OPERATIONS ENDORSEMENT (completed Operations status does not apply to Waste Haulers) H. ADDITIONAL INSURED WORDING TO INCLUDE (The City its officers, officials, employees and volunteers): Is it included? I. PRIMARY & NON-CONTRIBUTORY WORDING (Must be included): Is it included? J. CAUTION! (Confirm that loss or liability of the named insured is not limited solely by their negligence) Does endorsement include "solely by negligence" wording? K. ELECTED SCMAF COVERAGE (RECREATION ONLY): L. NOTICE OF CANCELLATION: II. AUTOMOBILE LIABILITY EFFECTIVE/EXPI RATION DATE: 7/11/114 to 7/1/15 A. INSURANCE COMPANY: MOC-ASCIP ® Yes ❑ No ❑ Yes ❑ No ❑ Yes ❑ No rm4mID ® Yes ❑ No ❑ Yes ® No ® N/A ❑ Yes ❑ No ❑ N/A ® Yes ❑ No B. AM BEST RATING (A-: VII or greater) Not Rated— Self Insured C. ADMITTED COMPANY (Must be California Admitted): Is Company admitted in California? ❑ Yes ❑ No D. LIMITS - If Employees (Must be $1 M min. BI & PD and $500,000 UM, $2M min for Waste Haulers): What is limits provided? $5,000,000 E. LIMITS Waiver of Auto Insurance / Proof of coverage (if individual) (What is limits provided?) N/A F. PRIMARY & NON-CONTRIBUTORY WORDING (For Waste Haulers only): ® N/A ❑ Yes ❑ No G. HIRED AND NON -OWNED AUTO ONLY: ❑ N/A ® Yes ❑ No H. NOTICE OF CANCELLATION: 0 N/A ® Yes 0 No III. WORKERS' COMPENSATION EFFECTIVE/EXPIRATION DATE: Not Provided (Previously approved by Sheri) A. INSURANCE COMPANY: Western Orange Co Self -Funded Workers' Comp Agency B. AM BEST RATING (A-: VII or greater): Not rated— Self Insured C. ADMITTED Company (Must be California Admitted): ❑ Yes ❑ No D. WORKERS' COMPENSATION LIMIT: Statutory ❑ Yes ❑ No E. EMPLOYERS' LIABILITY LIMIT (Must be $1M or greater) F. WAIVER OF SUBROGATION (To include): Is it included? ❑ Yes ❑ No G. SIGNED WORKERS' COMPENSATION EXEMPTION FORM: ® NIA ❑ Yes ❑ No H- NOTICE OF CANCELLATION: ❑ N/A ® Yes ❑ No ADDITIONAL COVERAGE'S THAT MAYBE REQUIRED IV. PROFESSIONAL LIABILITY ® N/A ❑ Yes ❑ No V POLLUTION LIABILITY ® N/A ❑ Yes ❑ No V BUILDERS RISK ® N/A ❑ Yes ❑ No HAVE ALL ABOVE REQUIREMENTS BEEN MET? ® Yes ❑ No IF NO, WHICH ITEMS NEED TO BE COMPLETED? Agent of Alliant Insurance Services Broker of record for the City of Newport Beach 8/4/14 Date RISK MANAGEMENT APPROVAL REQUIRED (Non -admitted carrier rated less than _; Self Insured Retention or Deductible greater than $ ) ❑ N/A ® Yes ❑ No Reason for Risk Management approval/exception/waiver: Workers' Comp needs Risk Managements approval 3/21/13 Sheri Anderson approves the WC letter. Approved: Risk Management Date * Subject to the terms of the contract. AGREEMENT NUMBER 38953 PROFESSIONAL SERVICES AGREEMENT WITH ORANGE COUNTY SUPERINTENDENT OF SCHOOLS FOR EDUCATIONAL OUTREACH THIS AGREEMENT FOR PROFESSIONAL SERVICES ("Agreement") is made �. and entered into as of this 1st day of January 2013 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and ORANGE COUNTY SUPERINTENDENT OF SCHOOLS, a California governmental organization ("Superintendent'), whose address is 200 Kalmus Drive, Costa Mesa, California 92626 and is made with reference to the following: A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City desires to engage Superintendent to provide an environmental education program administration to Newport Beach kindergarten through twelfth grades students, teachers and community members for water science Educational Outreach ("Project'). C. Superintendent possesses the skill, experience, ability, background, certification and knowledge to provide the professional services described in this Agreement. D. The principal member of Superintendent for purposes of Project shall be Lori Kiesser. E. City has solicited and received a proposal from Superintendent, has reviewed the previous experience and evaluated the expertise of Superintendent, and desires to retain Superintendent to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: YT43Ti 1 The term of this Agreement shall commence on the Effective Date, and shall terminate on December 31, 2013, unless terminated earlier as set forth herein. 4:01a*ai07**4:J4 ;1*1111ri1-4 City and Superintendent acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. Superintendent shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference ("Services" or "Work'). The City may elect to delete certain Services within the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE 3.1 Time is of the essence in the performance of Services under this Agreement and Superintendent shall perform the Services in accordance with the schedule included in Exhibit A. In the absence of a specific schedule, the Services shall be performed to completion in a diligent and timely manner. The failure by Superintendent to strictly adhere to the schedule set forth in Exhibit A, if any, or perform the Services in a diligent and timely manner may result in termination of this Agreement by City. 3.1.1 Notwithstanding the foregoing, Superintendent shall not be responsible for delays due to causes beyond Superintendent's reasonable control. However, in the case of any such delay in the Services to be provided for the Project, each party hereby agrees to provide notice within two (2) days of the occurrence causing the delay to the other party so that all delays can be addressed. 3.2 Superintendent shall submit all requests for extensions of time for performance in writing to the Project Administrator (as defined in Section 6 below) not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Superintendent's control. 3.3 For all time periods not specifically set forth herein, Superintendent shall respond in the most expedient and appropriate manner under the circumstances, by fax, hand -delivery or mail. 4. COMPENSATION TO SUPERINTENDENT 4.1 City shall pay Superintendent for the Services on a time and expense not - to -exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates or Progress Payments Schedule attached hereto as Exhibit B and incorporated herein by reference. Superintendent's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Thirty -Five Thousand Dollars and 001100 ($35,000.00) without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.2 Superintendent shall submit monthly invoices to City describing the Work performed the preceding month. Superintendent's bills shall include the name of the person who performed the Work, a brief description of the Services performed and/or the specific task in the Scope of Services to which it relates, the date the Services were performed, the number of hours spent on all Work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Superintendent no later than thirty (30) days after approval of the monthly invoice by City staff. 4.3 City shall reimburse Superintendent only for those costs or expenses specifically identified in Exhibit B to this Agreement, or specifically approved in writing in advance by City. ORANGE COUNTY SUPERINTENDENT OF SCHOOLS Page 2 4.4 Superintendent shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any Work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 5. PROJECT MANAGER 5.1 Superintendent shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Superintendent has designated Lori Kiesser to be its Project Manager. Superintendent shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. 5.2 Superintendent, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of Services upon written request of City. Superintendent warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 5.3 if Superintendent is performing inspection services for City, the Project Manager and any other assigned staff shall be equipped with a cellular phone to communicate with City staff. The Project Manager's cellular phone number shall be provided to the City. 6. ADMINISTRATION This Agreement will be administered by the Public Works Department, Shane Burckle, Water Conservation Coordinator or designee, shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or designee shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES To assist Superintendent in the execution of its responsibilities under this Agreement, City agrees to provide access to and upon request of Superintendent, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Superintendent's Work schedule, S. STANDARD OF CARE 8.1 All of the Services shall be performed by Superintendent or under Superintendent's supervision. Superintendent represents that it possesses the professional and technical personnel required to perform the Services required by this Agreement, and that it will perform all Services in a manner commensurate with the ORANGE COUNTY SUPERINTENDENT OF SCHOOLS Page 3 highest professional standards. For purposes of this Agreement, the phrase "highest professional standards" shall mean those standards of practice recognized by one (1) or more first-class firms performing similar work under similar circumstances. 8.2 All Services shall be performed by qualified and experienced personnel who are not employed by City. By delivery of completed Work, Superintendent certifies that the Work conforms to the requirements of this Agreement; all applicable federal, state and local laws; and the highest professional standard. 8.3 Superintendent represents and warrants to City that it has, shall obtain, and shall keep in full force and effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Superintendent to practice its profession. Superintendent shall maintain a City of Newport Beach business license during the term of this Agreement. 8.4 Superintendent shall not be responsible for delay, nor shall Superintendent be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, acts of God, or the failure of City to furnish timely information or to approve or disapprove Superintendent's Work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9.1 To the fullest extent permitted by law, Superintendent shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents and employees (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, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate (directly or indirectly) to any breach 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 Superintendent's presence or activities conducted on the Project (including the negligent and/or willful acts, errors and/or omissions of Superintendent, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). 9.2 Notwithstanding the foregoing, nothing herein shall be construed to require Superintendent to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's 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 Superintendent. ORANGE COUNTY SUPERINTENDENT OF SCHOOLS Page 4 It is understood that City retains Superintendent on an independent contractor basis and Superintendent is not an agent or employee of City. The manner and means of conducting the Work are under the control of Superintendent, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. No civil service status or other right of employment shall accrue to Contractor or its employees. Nothing in this Agreement shall be deemed to constitute approval for Superintendent or any of Superintendent's employees or agents, to be the agents or employees of City. Superintendent shall have the responsibility for and control over the means of performing the Work, provided that Superintendent is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Superintendent as to the details of the performance of the Work or to exercise a measure of control over Superintendent shall mean only that Superintendent shall follow the desires of City with respect to the results of the Services. 11. COOPERATION Superintendent agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the Work to be performed. City agrees to cooperate with the Superintendent on the Project. 12. CITY POLICY Superintendent shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Superintendent is responsible for keeping the Project Administrator and/or his/her duly authorized designee informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Superintendent's indemnification of City, and prior to commencement of Work, Superintendent 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 C, and incorporated herein by reference. 15. PROHIBITION AGAINST ASSIGNMENTS ANIS TRANSFERS Except as specifically authorized under this Agreement, the Services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued ORANGE COUNTY SUPERINTENDENT OF SCHOOLS Page 5 and outstanding capital stock of Superintendent, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Superintendent is a partnership or joint -venture or syndicate or cotenancy, which shall result in changing the control of Superintendent. Control means fifty percent (50%) or more of the voting power, or twenty-five percent (25%) or more of the assets of the corporation, partnership or joint - venture. The subcontractors authorized by City, if any, to perform Work on this Project are identified in Exhibit A. Superintendent shall be fully responsible to City for all acts and omissions of any subcontractor. Nothing in this Agreement shall create any contractual relationship between City and any subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. The City is an intended beneficiary of any Work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and the City_ Except as specifically authorized herein, the Services to be provided under this Agreement shall not be otherwise assigned, transferred, contracted or subcontracted out without the prior written approval of City. 17. OWNERSHIP OF DOCUMENTS 17.1 Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents"), prepared or caused to be prepared by Superintendent, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Superintendent or any other party. Superintendent shall, at Superintendent's expense, provide such Documents to City upon prior written request. 17.2 Documents, including drawings and specifications, prepared by Superintendent pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Superintendent will be at City's sole risk and without liability to Superintendent. Further, any and all liability arising out of changes made to Superintendent's deliverables under this Agreement by City or persons other than Superintendent is waived against Superintendent and City assumes full responsibility for such changes unless City has given Superintendent prior notice and has received from Superintendent written consent for such changes. 18. COMPUTER DELIVERABLES All written documents shall be transmitted to City in formats compatible with Microsoft Office and/or viewable with Adobe Acrobat. ORANGE COUNTY SUPERINTENDENT OF SCHOOLS Page 6 19. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the Services in this Agreement, shall be kept confidential unless City expressly authorizes in writing the release of information. 20. INTELLECTUAL PROPERTY INDEMNITY The Superintendent shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement or alleged infringement of any United States' letters patent, trademark, or copyright, including costs, contained in Superintendent's Documents provided under this Agreement. 21. RECORDS Superintendent shall keep records and invoices in connection with the Services to be performed under this Agreement. Superintendent shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any Services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Superintendent under this Agreement. All such records and invoices shall be clearly identifiable. Superintendent shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Superintendent shall allow inspection of all Work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Superintendent under this Agreement. 22. WITHHOLDINGS City may withhold payment to Superintendent of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Superintendent shall not discontinue Work as a result of such withholding. Superintendent shall have an immediate right to appeal to the City Manager or his/her designee with respect to such disputed sums. Superintendent shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 23. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Superintendent which result in expense to City greater than what would have resulted if there were not errors or omissions in the Work accomplished by Superintendent, the additional design, construction and/or restoration expense shall be bome by Superintendent. Nothing in this Section is intended to limit City's rights under the law or any other sections of this Agreement. 24. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other consultants in connection with the Project. Mm ORANGE COUNTY SUPERINTENDENT OF SCHOOLS Page 7 25. CONFLICTS OF INTEREST 25.1 The Superintendent or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the Work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 25.2 If subject to the Act, Superintendent shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Superintendent shall indemnify and hold harmless City for any and all claims for damages resulting from Superintendent's violation of this Section. r'T�itItY�[�3�` 26.1 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 from Superintendent to City shall be addressed to City at: Attn: Shane Burckle, Water Conservation Coordinator Public Works Department City of Newport Beach 3300 Newport Boulevard PO Box 1768 Newport Beach, CA 92658 Phone: (949) 644-3214 Fax: (949) 270-8139 26.2 All notices, demands, requests or approvals from City to Superintendent shall be addressed to Superintendent at: Attn: Lori Kiesser ORANGE COUNTY SUPERINTENDENT OF SCHOOLS 200 Kalmus Drive Costa Mesa, CA 92626 Phone: (714) 966-40001 Fax: (714) 432-1916 MR Attn: Patricia McCaughey ORANGE COUNTY SUPERINTENDENT OF SCHOOLS 200 Kalmus Drive Costa Mesa, CA 92626 Phone: (714) 966-4085 /Fax: (714) 668-7935 ORANGE COUNTY SUPERINTENDENT OF SCHOOLS Page 8 Unless a shorter time is specified elsewhere in this Agreement, before making its final request for payment under this Agreement, Superintendent shall submit to City, in writing, all claims for compensation under or arising out of this Agreement. Superintendent'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 Superintendent in writing as unsettled at the time of its final request for payment. The Superintendent and the City expressly agree that in addition to any claims filing requirements set forth in the Agreement, the Superintendent shall be required to file any claim the Superintendent may have against the City in strict conformance with the Tort Claims Act (Government Code sections 900 et seq.). R** 111:1;MIILIT-11%111181dl 27.1 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. 27.2 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 seven (7) calendar days prior written notice to Superintendent. In the event of termination under this Section, City shall pay Superintendent for Services satisfactorily performed and costs incurred up to the effective date of termination for which Superintendent has not been previously paid. On the effective date of termination, Superintendent shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 28. STANDARD PROVISIONS 28.1 Compliance with all Laws. Superintendent shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all Work prepared by Superintendent shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 28.2 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. ORANGE COUNTY SUPERINTENDENT OF SCHOOLS Page 9 28.3 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. 28.4 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 28.5 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. 28.6 Amendments. This Agreement may be modified or amended only by a written document executed by both Superintendent and City and approved as to form by the City Attorney. 28.7 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. 28.8 Controlling 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. 28.9 Equal Opportunity Employment. Superintendent represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex, age or any other impermissible basis under law. 28.10 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. 28.11 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] ORANGE COUNTY SUPERINTENDENT OF SCHOOLS Page 10 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'$ OFFICE Date: 1 121 l3 By:,Zov� Foy ) Aaron C. rp City Attorney ATTEST: Date: ,1 ►� ,. i LeilQ-ii 1. City Cler;��c O_\ +F0 CITY OF NEWPORT BEACH, a California municipal corporation Date: By: David A. Webb Public Works Director CONSULTANT: ORANGE COUNTY SUPERINTENDENT OF SCHOOLS, a California governmental organization Date: Fvbruary 19 2013 By: (4 Patricia McCaughey Coordinator, Purchasing, Contracts & Transportation [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Exhibit C — Insurance Requirements ORANGE COUNTY SUPERINTENDENT OF SCHOOLS Page 11 EXHIBIT A SCOPE OF SERVICES ORANGE COUNTY DEPARTMENT OF EDUCATION Page A-1 i)VM r f MaAffrMM OF RMATEN 200 KAi#AIiS ORNE' PO. BOX 9050 COSTA MM CA' 92628.9050 (714) %6.40W Fttit I71414*19t6 WM4t%a us LYIWAPRLHAnTLM txMsrtamwoom September 17, 2012 Robert Stein City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 Dear Mr. Stein, Inside the Outdoors Foundation supports inside the Outdoors (ITO), an environmental education program administered by the Orange County Department of Education (OCDE). ITO programs foster a love of science for over 151,000 Southern California students each year through hands-on outdoor education programs. We are pleased to submit this proposal to you for $35,000 to support water science education for Newport Beach K-12* grade students, teachers, and community members. With fimding from the City of Newport Beach, Inside the Outdoors will: Task 1: Provide water education Field Trips for 22,000 Newport Beach students Task 2: Provide Drip Drop Traveling Scientist for 500 Newport Beach students Task 3: Provide week-long Outdoor Science School water education programs and Service -Learning projects for 90 Newport Beach students Task 4: Provide High School Service -Learning programs at Upper Newport Bay for 45 students Including UCI Urban Water Institute as a partner Task 5: Provide Community Water Education programs co -branded with City of Newport Beach at environmental festivals for 2.000 community members Task 6: Provide Education and the Environment initiative resources that will benefit 17 teachers and 425 Newport Beach students Task 7: Design and purchase giveaway items such as shower timers co -branded with City of Newport Beach for 27,000 community members Task 8: Design and purchase promotional displays, backdrops, and other marketing and media resources that will reach at least 42,0100 community members Task 9: Assist with the production and editing of a public service announcement Note: for all programs, Inside the Outdoors will provide staffing. Events will be co- branded with the following: "The City ofNewport Beach and Inside the Outdoors present..." Project Schedule Upon receipt of finding, for each task Inside the Outdoors will: e Recruit schools for participation (within four weeks) Host student programs (four weeks — twelve months) • Host Service -Learning projects (four weeks — twelve months) Participate in environmental festivals (four weeks —twelve months) ORM MM teARTMENT OF ®OCATMN 200 KAGMUS DME P.O. BOX 9050 COSTA MMA. CA £i2628.9050 {714) 966.40M FAX M4j 4324016 viiwoott m t4Y&laMUtNAaTLM Y'SWMAWO-t • Track results from all programs using assessments, survcys, and audits • Distribute teacher resources (four weeks —twelve months) • . Issue an interim and fmal report (six months and twelve months) Key Personnel This project will be administered by: • Kelly Ellis, Inside the Outdoors, Instructional Programs Assistant • Bonnic McQuiston, Inside the Outdoors, Program Naturalist Thank you for your consideration of this request. Pie= call me at (714) 708-3885 if you have questions or require additional information. We look forward to continuing our partnership in service to the communities we serve. Sincerely, Pam Johnson Executive Officer EXHIBIT B SCHEDULE OF BILLING RATES ORANGE COUNTY DEPARTMENT OF EDUCATION Page B-' October 19, 2012 Robert Stein City of Newport Beach 3300 Newport Blvd, Newport Bcach, CA 92663 Dear Mr. Stein, This letter serves as matching funding documentation for inside the Outdoors Foundation's proposal to the City of Newport Beach. Funding supports water science education for Newport Beach K-l2a' grade students, teachers, and community members, The breakdown for matching funding indicated on the attached budget summary is as follows: Field Trips: Traveling Scientist: Outdoor Science School: High School Service -beaming: Community Water Education Events: Teacher Resources: Promotional Giveaways: Media Marketing: All matching funding has been secured. Winslow Maxwell Trust Wells Fargo No matching funding Orange County Department of Education Wells Fargo and Starbucks Foundation Southern California Edison No matching funding Orange County Department of Education Thank you for your consideration of this request. Please call me at (714) 708-3885 if you have questions or require additional information. We look forward to continuing our partnership in service to the communities we serve. Sincerely, f� Pam Johnson Executive Officer Inside the Outdoors Proposal City of Newport Beach 2012-2013 Water education Field Trips to Wild Wetlands (3rd grade), Field Trips Upper Newport Bay (4th 2,000 $22,500 $22,500 $45,000 grade), and Rancho Sonado (5thgrade) "Drip Drop" Traveling Scientist presentation Traveling Scientist (sponsorship for eligible 500 $1,450 $1,450 $2,900 schools), curriculum updates, and eauipment retilacemem Week-Iong water education Outdoor Science program and follow-up School Service -Learning projects 90 $3,000 $0 $3,000 (partial sponsorship for eligible schools) Water education and water High School Service- conservationServico-Learning 45 $1,050 $1,875 $2,925 Learning projects in partnership with UCrs urban Water Institute Water education offered at community water education Community Water events such as Newport Bay's Education Events Earth Day event provided in 2,000 $0 $10,000 $10,000 partnership and co-hranded with City of Newport Beach loeo Teacher resources focused. on Teacher Education incorporating the EEI and the Environment Environmental Principles and 425 $0 $850 $850 Initiative (EEI) Concepts into classroom Resources lessons (17 classrooms/25 students per classroom) Promotional giveaways such Promotional as shower timers provided in partnership and co -branded 2,000 $5,000 $0 $5,000 Giveaways with City of Newport Beach logo Media/Marketing displays and materials such as backdrops; assistance with the production MediaWarketing and editing of public service 4,000 $2,000 $3,000 $5,000 announcement; all media and marketute co -branded with EXHIBIT C 1. INSURANCE REQUIREMENTS —PROFESSIONAL SERVICES 1.1 Provision of Insurance. Without limiting Superintendent's indemnification of City, and prior to commencement of Work, Superintendent 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 City. Superintendent agrees to provide insurance in accordance with requirements set forth here. If Superintendent uses existing coverage to comply and that coverage does not meet these requirements, Superintendent agrees to amend, supplement or endorse the existing coverage. 1.2 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 the City's Risk Manager. 1.3 Coverage Requirements. 1.3.1 Workers' Compensation Insurance. Superintendent 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. 1.3.1.1 Superintendent shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. City shall submit to Superintendent, a Waiver of Subrogation endorsement in favor of Superintendent, its officers, agents, employees and volunteers. 1.3.2 General Liability Insurance. Superintendent 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, products -completed operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract) with no endorsement or modification limiting the scope of coverage for liability assumed under a contract. 1.3.3 Automobile Liability Insurance. Superintendent shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the Superintendent arising out of or in connection with Work to be performed under this Agreement, ORANGE COUNTY DEPARTMENT OF EDUCATION Page C-1 including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit each accident. 1.3.4 Professional Liability (Errors & Omissions) Insurance. Superintendent shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of one million dollars ($1,000,000) per claim and in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the effective date of this agreement and Superintendent agrees to maintain continuous coverage through a period no less than three years after completion of the services required by this agreement. 1.4 Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: 1.4.1 Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be mutually endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers and Superintendent, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Superintendent or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Superintendent hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its subconsultants. City hereby waives its own right of recovery against Superintendent. 1.4,2 Additional Insured Status. All liability policies including general liability, excess liability, pollution liability, and automobile liability, but not including professional liability, shall provide or be endorsed to provide that City and its officers, officials, employees, and agents shall be included as insureds under such policies. 1.4.3 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 City. 1.4.4 Notice of Cancellation. All policies shall provide City with thirty (30) days notice of cancellation (except for nonpayment for which ten (10) days notice is required) or nonrenewal of coverage for each required coverage. 1.5 Additional Agreements Between the Parties. The parties hereby agree to the following: 1.5.1 Evidence of insurance. Superintendent shall provide certificates of insurance to City 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 City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. City reserves the right to require complete, certified copies of all required insurance policies, at any time. ORANGE COUNTY DEPARTMENT OF EDUCATION Page C-2 1.5.2 City's Right to Revise Requirements. The City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving the Superintendent sixty (60) days advance written notice of such change. If such change results in substantial additional cost to the Superintendent, the City and Superintendent may renegotiate Superintendent's compensation. 1.5.3 Enforcement of Agreement Provisions. Superintendent acknowledges and agrees that any actual or alleged failure on the part of the City to inform Superintendent of non-compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. 1.5.4 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. 1.5.5 Self-insured Retentions. Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self-insurance will not be considered to comply with these requirements unless approved by City. 1.5.6 City Remedies for Non Compliance If Superintendent or any subconsultant fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this agreement, or to suspend Superintendent's right to proceed until proper evidence of insurance is provided. Any amounts paid by City shall, at City's sole option, be deducted from amounts payable to Superintendent or reimbursed by Superintendent upon demand. 1.5.7 Timely Notice of Claims. Superintendent shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Superintendent's performance under this Agreement, and that involve or may involve coverage under any of the required liability policies. 1.5.8 Superintendent's Insurance. Superintendent 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. ORANGE COUNTY DEPARTMENT OF EDUCATION Page C-3 CERTIFICATE OF INSURANCE CHECKLIST City of Newport Beach This checklist is comprised of requirements as outlined by the City of Newport Beach. * Date Received: 1/25/13 Dept./Contact Received From: Tania Date Completed: 1/25/13 Sent to: Tania By: Renee Company/Person required to have certificate: Type of contract: Orange County Department of Education All Other L GENERAL LIABILITY EFFECTIVE/EXPIRATION DATE: 7/1/12 to 7/1/13 A. INSURANCE COMPANY: MOC-ASCIP B. AM BEST RATING (A-: VII or greater): Not Rated- Self Insured C. ADMITTED Company (Must be California Admitted): Is Company admitted in California? ❑ Yes ❑ No D. LIMITS (Must be $1 M or greater): What is limit provided? $5,000,000 CSI.: E. ADDITIONAL INSURED ENDORSEMENT - please attach ❑ Yes ® No F. PRODUCTS AND COMPLETED OPERATIONS (Must include): Is it included? (completed Operations status does not apply to Waste Haulers or Recreation) ❑ Yes ❑ No G. ADDITIONAL INSURED FOR PRODUCTS AND COMPLETED OPERATIONS ENDORSEMENT (completed Operations status does not apply to Waste Haulers) ❑ Yes ❑ No H. ADDITIONAL INSURED WORDING TO INCLUDE (The City its officers, officials, employees and volunteers): Is it included? ❑ Yes ❑ No I. PRIMARY & NON-CONTRIBUTORY WORDING (Must be included): Is it included? ❑ Yes ❑ No J. CAUTION? (Confirm that loss or liability of the named insured is not limited solely by their negligence) Does endorsement include "solely by negligence" wording? ❑ Yes 0 No K. ELECTED SCMAF COVERAGE (RECREATION ONLY): ® N/A ❑ Yes ❑ No L. NOTICE OF CANCELLATION: ❑ N/A ® Yes ❑ No II. AUTOMOBILE LIABILITY EFFECTIVE/EXPIRATION DATE: 7/1/12 to 7/1/13 A. INSURANCE COMPANY: MOC-ASCIP B. AM BEST RATING (A-: VII or greater) Not Rated - Self Insured C. ADMITTED COMPANY (Must be California Admitted): Is Company admitted in California? ❑ Yes ❑ No D. LIMITS - if Employees (Must be $1M min. BI & PD and $500,000 UM, $2M min for Waste Haulers): What is limits provided? $5,000,000 E LIMITS Waiver of Auto Insurance / Proof of coverage (if individual) (What is limits provided?) N/A F. PRIMARY & NON-CONTRIBUTORY WORDING (For Waste Haulers only): ® N/A ❑ Yes ❑ No G. HIRED AND NON -OWNED AUTO ONLY: ❑ N/A ❑ Yes M No H. NOTICE OF CANCELLATION: ❑ N/A ® Yes ❑ No DI. VVORKERS^COMPENSAT|8N EFFECT|VE/EXP|RAT|OND/g'E: A. INSURANCE COMPANY: Weste n Orange Co Self -Funded Workers' Comp Agency B. AMBEST RATING (A,:VUorgnao\er: Not rated -Self Insured C. ADMITTED Company (Must beCalifornia Admitted): FlYes [INo D. VVURKERS'COMPENOAT|0NL|M(T: Statutory El Yes El No E. EMPLOYERS' LIABILITY LIMIT (Must be$1WYurgreater) F. WAIVER (}FSUBROGATION (To ioo|ude):|a|tincluded? [lYes ElNo G, SIGNED VVORKER3`COMPEN38JIONEXEMPTION FORM: N/A FlYes [-INo H. NOTICE OPCANCELLATION: ON/A ZYea El No ADDITIONAL COVERAGE'S THAT MAYBE REQUIRED IV. PROFESSIONAL LIABILITY V POLLUTION LIABILITY V BUILDERS RISK Agent $f/VUantInsurance Services Date Broker of record for the City of Newport Beach RISK MANAGEMENT APPROVAL REQUIRED Non-udnithedcarrier rated less than ; Self Insured Retention or Deductible greater than $ 0 N/A N Yes L_J No Reason for Risk Management opprovaVoXcepiinn/muaivar: Workers'Comp needs Risk Managements approval. 3/21/13 Sheri Anderson approves the WC letter. � A,rrr-'--� Risk Management Date * Subject to the terms of the contract, M,