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HomeMy WebLinkAbout11 - PSA for Government Access Channel Management (NBTV) and Video Production ServicesQ �EwPpRT CITY OF O � z NEWPORT BEACH <,FORN'P City Council Staff Report April 13, 2021 Agenda Item No. 11 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Grace K. Leung, City Manager - 949-644-3001, gleung@newportbeachca.gov PREPARED BY: John Pope, Public Information Manager, jpope@newportbeachca.gov PHONE: 949-644-3031 TITLE: Professional Services Agreement with Newport Beach & Company for Government Access Channel Management (NBTV) and Video Production Services ABSTRACT: Staff recommends approval of a two-year professional services agreement with Newport Beach & Company, with the option of two, 1 -year extensions, to provide channel management for the City of Newport Beach's government access channel, Newport Beach Television (NBTV), and video production services. RECOMMENDATION: a) Determine this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly; and b) Execute a two-year Professional Services Agreement with Newport Beach & Company for Management of NBTV Programming and Operations, with an option to extend the agreement for two one-year terms. The total not -to -exceed amount of $502,788.29. DISCUSSION: The City of Newport Beach (City) operates a government access channel, Newport Beach Television (NBTV). NBTV operations, production and programming were provided by City of Newport Beach (City) staff until March 2014, when the services were outsourced. Newport Beach & Company, a non-profit organization that serves as the official destination and tourism marketing agency in Newport Beach, has provided channel management and video production services to the City since that time. Its current contract with the City is set to expire on April 30, 2021. Professional Services Agreement with Newport Beach & Company for Government Access Channel Management (NBTV) and Video Production Services April 13, 2021 Page 2 Using specifications and service requirements provided by the City Manager's Office, the City's Purchasing staff issued a formal Request for Qualifications ("RFQ") solicitation, No. 21-36, for Government Access Channel Management and Video Production Services. The RFQ was posted on the City's public procurement system (PlanetBids) and distributed directly to known providers of these services. This RFQ was evaluated in two phases. Phase 1, the Technical Evaluation, involved an evaluation panel reviewing each submittal and rating them on technical factors such as: • Experience and qualifications in providing government access channel management services; • Experience and qualifications in providing video production services; • Relevant project history and service to other public clients; • Qualifications such as personnel, equipment, training and certification; and • Project approach, ability to perform services and subject matter expertise. The City received six (6) submittals, which were scored against the criteria described above. The results of the evaluation panel's review can be found in the table below: Proposer Proposal Score Bakers Man Production 47.37 Newport Beach & Company 63.47 Red 88 Media 64.40 SoSu TV 40.37 Tripepi Smith 57.17 TV Pro Gear 52.50 As noted in the evaluation scores, the evaluation panel determined that three proposers were the most qualified to be considered for award: Newport Beach & Company, Red 88 Media, and Tripepi Smith. The remaining proposers, while demonstrating some qualifications for government access channel management and/or video production services, did not demonstrate the level of experience, qualifications and overall fit to the extent demonstrated by the top three proposers. 11-2 Professional Services Agreement with Newport Beach & Company for Government Access Channel Management (NBTV) and Video Production Services April 13, 2021 Page 3 In Phase 2 of the evaluation process, the top three proposers were asked to submit pricing for this project. The City requested a flat rate for channel management and services related to City Council and Planning Commission meetings, as well as a blended hourly rate for video production services. The table below shows an analysis of the pricing, projected on an annual basis as well as a four-year projection to match the intended contract term. The four-year projections in the table also include annual price increases for each proposer, if indicated in their respective pricing responses. Using a traditional RFP procurement model wherein 70% of the award basis is technical factors and 30% allotted toward cost, the three finalists are ranked as follows: Proposer NEWPORT BEACH & CO. RED 88 MEDIA TRIPEPI SMITH City Council Meetings (24 Annually) $12,240.00 $18,000.00 $31,570.00 Planning Commission Meetings 24 Annually) $6,240.00 $7,800.00 $31,570.00 Annual NBTV Administration $29,700.00 $33,360.00 $34,320.00 Production Hourly Blended Rate $40.00 $46.00 $105.00 1800 Annual Video Production Hours $72,000.00 $82,800.00 $189,000.00 Annual Cost (Year 1) $120,180.00 $141,960.00 $286,460.00 Annual Cost (Year 2) $123,785.40 $141,960.00 $300,783.00 Annual Cost Year 3 $127,498.96 $141,960.00 $315,822.15 Annual Cost (Year 4) $131,323.93 $146,218.80 $331,613.26 4 - Year Contract Total (NTE): $502,788.29 $572,098.80 $1,234,678.41 Using a traditional RFP procurement model wherein 70% of the award basis is technical factors and 30% allotted toward cost, the three finalists are ranked as follows: Proposer Proposal Score Cost Score Total Score Newport Beach & Company 63.47 30.00 93.47 Red 88 Media 64.40 26.37 90.77 Tripepi Smith 57.17 12.22 69.38 Conclusion of RFP Process and Panel Recommendation Following this procurement evaluation and review process, the evaluation panel identified Newport Beach & Company as the highest -qualified proposer and most effective provider of government access channel management and video production services. 11-3 Professional Services Agreement with Newport Beach & Company for Government Access Channel Management (NBTV) and Video Production Services April 13, 2021 Page 4 Newport Beach & Company demonstrated a high level of experience and expertise in both government access channel management and video production, and the organization's proposed approach to these services was rated favorably. Additionally, Newport Beach & Company's history of service to the City and direct, local experience in the community were judged as additional factors that make the organization a strong fit to continue providing channel management for NBTV and video production services for an additional two-year term. While the COVID-19 pandemic dramatically curtailed community events and presentations in 2020, and limited staff's ability to create new programs, the City anticipates that NBTV will resume a more robust programming schedule as conditions improve through the remainder of 2021 and beyond. 21k*T@Y1NIM1:7±[Q6 The adopted budget includes sufficient funding for this service. It will be expensed to the NBTV Operations/Program account in the City Manager Public Information Office budget, 01020201-871041. ENVIRONMENTAL REVIEW: Staff recommends the City Council find this action is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. �[0��[�I1rev The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). ATTACHMENT: Attachment A — Professional Services Agreement with Newport Beach & Company 11-4 ATTACHMENT A PROFESSIONAL SERVICES AGREEMENT WITH NEWPORT BEACH & COMPANY FOR MANAGEMENT OF NBTV PROGRAMMING, OPERATIONS, AND VIDEO PRODUCTION SERVICES THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into as of this 13th day of April, 2021 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and NEWPORT BEACH & COMPANY, a California nonprofit corporation ("Consultant"), whose address is 1600 Newport Center Drive, Suite 120, Newport Beach, California 92660, 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 management of Newport Beach Television ("NBTV") programming, operations, and video production services ("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: 1. TERM 1.1 Initial Term. The initial term of this Agreement shall commence on the Effective Date, and shall terminate on April 30, 2023, unless terminated earlier as set forth herein ("Initial Term"). 1.2 Option Term. Provided Consultant is not in default of its obligations under this Agreement, upon Consultant's written request and with written approval by the City, the term of this Agreement may be extended for an additional two (2), one (1) year option terms ("Option Term," or collectively, "Option Terms"), on the same terms and conditions contained in this Agreement. Consultant shall give the City written notice of the request to exercise an Option Term no later than ninety (90) calendar days prior to the expiration of the existing Initial Term or Option Term. 11-5 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 potential Option Terms, reimbursable items and subconsultant fees, shall not exceed Five Hundred Two Thousand Seven Hundred Eighty Eight Dollars and 29/100 ($502,788.29), 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 Newport Beach & Company Page 2 11-6 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. 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 Doug McClain 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 City Manager's Office. City's Public Information 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 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. Newport Beach & Company Page 3 11-7 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 community professional standards and with the ordinary degree of skill and care that would be used by other reasonably competent practitioners of the same discipline under similar circumstances. 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 legally recognized professional standards. 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 Newport Beach & Company Page 4 11-8 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. 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. Newport Beach & Company Page 5 11-9 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 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 Newport Beach & Company Page 6 11-10 full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant 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 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. Newport Beach & Company Page 7 11-11 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 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. iZ 9191k,IaIIQ&K67a1►I1:1N=63I 24.1 Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act") and/or Government Code §§ 1090 et seq., which (1) require such persons to disclose any financial interest that may foreseeably be materially affected by the Work performed under this Agreement, and (2) prohibit such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 24.2 If subject to the Act and/or Government Code §§ 1090 et seq., Consultant shall conform to all requirements therein. 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: Public Information Manager City Manager's Office 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: Newport Beach & Company Page 8 11-12 Attn: Gary Sherwin Newport Beach & Company 1600 Newport Center Drive, Suite 120 Newport Beach, CA 92660 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 parry 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. 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, Newport Beach & Company Page 9 11-13 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 Controllinq 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. Newport Beach & Company Page 10 11-14 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] Newport Beach & Company Page 11 11-15 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: CITY OF NEWPORT BEACH, a California municipal corporation Date: By: JUL By: Aaron C. Harp Qim 0ylou4l Brad Avery City Attorney Mayor ATTEST: Date: in Leilani I. Brown City Clerk CONSULTANT: Newport Beach & Company, a California nonprofit corporation Date: By: Gary Sherwin Chief Executive Officer Date: By: Lily Pearson Chief Financial Officer (END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Exhibit C — Insurance Requirements Newport Beach & Company Page 12 11-16 SCOPE OF SERVICES Newport Beach Television ("NBTV") is a government access channel as provided by the Cable Communications Policy Act of 1984 created for the dissemination of government - related information to the viewing public. NBTV shall provide information to the residents of Newport Beach concerning the City's government -related functions, activities, programs, services, and issues. The City owns NBTV and all content and digital accounts created by the consultant as a part of the work being performed under this contract. The City shall be provided administrative and ownership access to any social media accounts or other similar items requiring a login and/or password. Each social media account shall comply with the City's Council Policy D5: Digital Communications, social media policies, and connected to the City's archiving platform. Consultant shall adhere to the NBTV Guidelines and Regulations as attached to this Scope of Services as Exhibit A-1. Consultant shall be responsible for providing production and administrative services for the programming, operation, and management of NBTV. The City will retain ownership of NBTV programs produced, video footage created for use in programs (B -roll), and any field and edit bay equipment owned directly by the City during the term of this Agreement for services. The following represents major categories of services that shall be provided by Consultant: 1. Regular and Recurring Meetings City Council and Planning Commission meetings occur as follows: a. City Council meetings (regular, special and emergency), approximately 24 per year; and b. Planning Commission meetings, approximately 24 per year For these meetings, Consultant shall provide video production services, to include camera operation, editing, postproduction, etc. 2. Video Production Services Consultant shall: a. Provide video production (concept development, camera operation, editing, postproduction, etc.), and broadcast all meetings and programs as described herein; Newport Beach & Company Page A-1 11-17 b. Provide scheduled and unscheduled production and editing services for the development of programming as described herein; c. Coordinate lighting and audio levels, design sets, camera operations, editing and production of all programming; and d. Create and develop program scripts and interview questions, arrange interviews, and provide show hosts as needed. Programming may include, but is not limited to the following. Programs listed below may be cancelled or substituted with alternate programming. Also included is an estimated number of production hours required for each program, based on historical production information: Program Title Duration & Frequency Production Hours (Est.) Speak Up Newport 45-60 minutes; monthly 4 production hours Wake Up Newport 45-60 minutes; monthly 12-14 production hours Village Green 30 minutes; monthly 12-14 production hours Beyond the Canvas 60 minutes, 1 Ox year 16 production hours Medicine in your Backyard 60-90 minutes, 10x/year 12-14 production hours NB Talk 30 minutes, monthly 14 production hours Sunday Musicale 60-75 minutes, 10x/year 12-14 production hours Various PSA's 2 per month 8-10 production hours (ea.) City and Community Events 60 minutes, 1-2 events monthly 16-18 production hours (ea.) 3. General Administration/Channel Administration Consultant shall: a. Manage NBTV operations including broadcasts on applicable cable channels, web stream content and other digital platforms in compliance with applicable laws, policies, rules, and regulations; b. Coordinate programming of NBTV and for web streaming, including airing live meetings, and programs and short video for playback. Tasks include loading, scheduling and monitoring playback quality; Newport Beach & Company Page A-2 11-18 c. Manage availability of production staff sufficiently to schedule, operate and manage the production and broadcast of NBTV meetings, programs and short videos; d. Prepare production schedules; e. Provide video duplication services to the public, staff and City Council, and assist City staff in responding to California Public Records Act requests related to NBTV; f. Provide regular updates to the City Project Administrator describing the programming produced during the reporting period, including metrics; g. Adhere to operating and programming policies and procedures for use and operation of the equipment, facilities, and channels, and recommend modifications as necessary; h. Coordinate proper file conversion for broadcast, computer and web -based systems; and i. Assist City staff with the maintenance and updating of NBTV's community bulletin board. 4. Broadcast Services Consultant shall: a. Operate cable channel and manage digital streaming activities that result in the airing of professional quality, City -approved programming; b. Create and schedule fill programming such as public service announcements, page displays, and other similar content to ensure smooth progression between programs; c. Organize and maintain video library and digital archives of multiple formats, including the City's recorded meetings, show archives and historical footage, d. Manage and maintain music and special effects libraries; and e. Produce and distribute a weekly schedule of programs and airing of onscreen channel guides and coordinate with City staff to update NBTV's community bulletin board. 5. Equipment Consultant shall: a. Ensure that NBTV field and editing equipment (cameras, monitors, microphones, character generators, modulators, computers, hardware and software, and other accessories) is maintained and handled with care and supplies are stocked (tape, batteries, etc.) and only trained personnel operate the NBTV equipment; b. Consult with the City's Project Administrator of any necessary or recommended equipment repairs or supply needs. The City Project Administrator shall have sole and absolute discretion to coordinate maintenance with the City's NBTV engineering contractor and to purchase NBTV equipment or supplies, which will remain the property of the City; Newport Beach & Company Page A-3 11-19 c. Perform initial troubleshooting to assist in identifying and resolving technical issues that may arise during the broadcast of a program or meeting; and d. Coordinate channel operations needs with City staff or City's designated equipment maintenance contractor for emergency or programming operations issues. Exhibit A-1: Newport Beach Television Guidelines and Regulations Newport Beach & Company Page A-4 11-20 n =, V Wz C4c,Fo �A I. NBTV Purpose The purpose of these regulations ("Guidelines") is to provide guidelines for the use of Newport Beach Television ("NBTV"), a government access channel, and to describe its use by the City of Newport Beach ("City"). NBTV is a government access channel as provided for in the Cable Communications Policy Act of 1984. This Federal legislation establishes government channels, educational channels and public channels for use by each of the corresponding broad groups. Because NBTV is a government channel, there is no legal requirement to broadcast any type of programming that is not government-sponsored. NBTV is committed to programming that helps residents learn more about City programs, their neighbors and about important issues facing the area in general. II. NBTV Objectives The objectives for use of NBTV are as follows: To serve as an on-going source of government information for the residents of and visitors to Newport Beach_ 2. To increase public knowledge of the functions and responsibilities of City government, and of the functions of the various City departments, Commissions, Boards and Committees. 3. To serve as the official information center in the case of a local emergency situation ( i.e., flood, earthquake, fire, crime, etc.). 4. To supplement the public safety awareness efforts of the City's Police Department and Fire Department. 5. To enhance awareness of local history, culture, issues and activities. 6. To provide programs that facilitate and encourage an aware and educated electorate. Ill. Programming Guidelines NBTV will provide information to the residents of Newport Beach concerning the functions, activities, programs, and issues of the City. NBTV is not intended to be used as a political forum by an individual or group, nor as a mechanism for building exclusive support for a particular person, program, or issue. Use of the channel shall be governed by the operating procedures set forth herein, and by the rules of the Federal Communications Commission ("FCC") as they may apply to the operations of NBTV. Due to the diversity of opinions held by individuals, 100 -percent agreement on programming content is impossible. Therefore, opinions expressed on the channel may not necessarily reflect those of the City Council, the City Manager, City Staff or the City's appointed officials and volunteers. 11-21 The City Manager or his/her designee reserves the right to review all programs, proposed and/or completed, to determine compliance with the Guidelines. Any program under consideration may be accepted as presented, may be turned down completely, or may be given conditional approval. In the case of conditional approval, a program may be deemed appropriate and worthy, except for stated objectionable or offensive program portions, which may be listed as needing revision or deletion from the program. The presenter of the program will then have the option of making all specified changes or withdrawing the program from consideration altogether. Because NBTV is a government channel, there is no legal requirement to broadcast any type of programming that is not government- sponsored. In all circumstances, the City Manager or his/her designee has sole and absolute discretion and will maintain final approval authority for NBTV programming. IV. Programming Restrictions 1. NBTV will not telecast (e.g., present on NBTV broadcast), or allow to be telecast, any programming containing the following: (a) Paid advertising material. Paid advertising material includes, but is not limited to, advertising by or on behalf of a candidate for public office or program material made available without charge by persons, corporations, or institutions which have a commercial interest in the subject matter. Grants accepted by the City pursuant to the Guidelines shall not be considered advertising. This provision shall not prevent the identification of persons or institutions providing grants or contributions to underwrite the cost of programs unrelated to the commercial interest of the donor or to programs which have a public interest overriding the private commercial interests. (b) Copyrighted material, unless express written consent or clearance for use has been obtained. (c) Programming which is prohibited by applicable Federal, State or local laws. 2. In the case of programs deemed to be worthy or of social or artistic value, but also containing some program content or language that may be considered offensive to some viewers, the following message may be run prior to the program, and during any natural program break: "The following program has been deemed worthy of telecast on NBTV, but contains language or other program content that may be offensive to some viewers. Viewer discretion and parental guidance are advised." V. Sponsorship Guidelines 1. Who may be identified as a Sponsor: a. Corporations or Divisions or Subsidiaries of a Corporation. Exhibit A-1 Page 2 11-22 b. Endowments and Foundations. c. Individuals. d. Any other group(s) that provides funding for NBTV programming. 2. General guidelines for determining acceptability of sponsorship include: a. The City and the City Manager or his/her designee reserve the absolute right to refuse sponsor support from entities that may be viewed as controversial or that promote any product or position that may be contrary to the mission and goals of the City. b. The sponsor may not exercise editorial or any other control over the content of any portion of NBTV's programming or shows. c. NBTV's programming or shows will not promote a sponsor's products, services, or other business interests. Sponsor credits may not create the perception that there is a connection between the program content and the sponsor's products or services. d. Sponsor credits may not include: i. Any call to action or solicitation to purchase a product. ii. Superlatives. iii. Direct comparisons. iv. Price or value information. v. Inducements to buy. e. No one credit can exceed 60 seconds; a sequence of credits cannot exceed 360 seconds, without express written consent of the City Manager or his/her designee. 3. The City Manager or his/her designee and the City retain the absolute right to reject or modify any sponsor or sponsor's material for any reason or no reason at all. VI. Political Broadcasts Declared candidates for any elective public office and persons advocating any cause, viewpoint, or policy, proposed or otherwise, will not be eligible to appear on NBTV, except in a program or series where the format allows for all candidates or sides of an issue to be heard on an equal basis and within the same format. Candidates for public Exhibit A-1 Page 3 11-23 office may appear on NBTV on a bona fide news program; a news documentary, if the appearance of the candidate is incidental to presentation of the subject matter; or in coverage of official City meetings such as City Council, Commissions, Boards or Committees. The City Manager or his/her designee will make every effort to ensure that any appearance, except as authorized above, by any qualified political candidate on NBTV will abide by these restrictions, and will tailor such appearances so as to minimize the fact of their candidacy. Final authority on decisions on allowable program formats and appearances by qualified political candidates are subject to the sole and absolute discretion of the City Manager or his/her designee. Should an appearance by a qualified political candidate be determined to fall outside of the categories of exempt programming mentioned above, then the City Manager or his/her designee will afford equal opportunities to all other candidates for that office. Equal opportunities include best efforts by the City Manager or his/her designee to provide air -time on a similar day, at a similar time, and under similar conditions as the prior telecast, and within as efficient and effective time period as possible, but with no guarantee of being able to match telecast conditions exactly. All decisions on equal opportunity program schedules will be made by the City Manager or his/her designee and shall be final. 2. Programming by any other governmental group, individual, or entity not an official branch of the City, may be allowed if the event or program to be taped is co-sponsored by the City, or special permission is obtained from the City Manager or his/her designee. 3. Coverage of a candidate forum may be allowed if the forum adheres to the following guidelines: a. All candidates shall be invited. b. The forum shall not exceed 4 hours. c. The sponsoring group shall not endorse any candidate(s) prior to or during the recording of the forum. After the forum is recorded, the sponsoring group may endorse candidate(s). d. Equal time slots shall be allowed for each candidate. VII. Program Type Programming viewed on NBTV will generally fall into one or more of the following programming categories: 1. Emergency: May consist of live, taped, or alpha -numeric programming, shown at any time, as emergency dictates. The purpose of this programming is to inform residents of emergency situations, and to instruct viewers in evacuation, detour, notification, and escape procedures. In the case of an emergency, regularly scheduled Exhibit A-1 Page 4 11-24 programming may be interrupted or canceled. The content and scheduling of any emergency programming must be approved by the City Manager or his/her designee. 2. Live Programs: Live coverage of City Council and designated City Commission, Board and Committee meetings take place as often as necessary. Meetings may be carried gavel -to -gavel with or without editing or editorial comment. 3. Locally Produced Programs and Series: Many programs and series will be produced by City staff, or a City consultant, and will be directly related to City issues or government-sponsored programs, or will be of a general informational nature, such as health, cultural, economic development or lifestyle programming. 4. Outside Programming: Pre -produced programming may be telecast on NBTV. Such programming will be screened for suitability and compliance these Guidelines and will be subject to final approval by the City Manager or his/her designee for scheduling on NBTV. 5. NBTV Bulletin Board: A bulletin board style service used to display City -related messages to the public. This mode of programming may be used as filler, when no other video programming is scheduled on NBTV. Message content and decisions on message suitability will be governed by these Guidelines and is subject to final approval by the City Manager or his/her designee. VIII. Access Policy NBTV is a government access channel, as outlined in the Federal Cable Communications Act of 1984, created for the dissemination of government -related information to the viewing public. Access to the channel may range from submitting a public service announcement for the NBTV bulletin board, to putting in a request for event coverage, to working side-by- side with City staff to produce a program or program series. In each case, proper procedures must be followed before access will be provided. NBTV procedures are as follows: 1. Public Programming Request Procedure a. Air -time on NBTV may be requested for telecast of a non-NBTV, pre -produced program or series, providing the program is suitable for airing on the channel. b. To submit a program for consideration, an applicant must submit all information requested by the City Manager or his/her designee along with a description of the program title, topic, format, and running time as well as providing the City Manager or his/her designee with written proof of all copyrights and all clearances to all portions of the submitted program including, but not limited to, video, performance, music, song, theatrical, and film rights. The City Manager or his/her designee may also require the applicant to sign a statement that all approvals have been secured and to provide satisfactory indemnification of the City subject to approval by the City Attorney. Exhibit A-1 Page 5 11-25 c. Proposed programs will be screened for NBTV suitability, compliance with these Guidelines and City policies, and for technical quality. The proposed program may be accepted or rejected in whole or in part by the City Manager or his/her designee based on any or all of the qualifying criteria. d. No programming containing commercial advertising will be allowed on NBTV unless there is an overriding public interest. e. If approved for telecast, the City Manager or his/her designee will determine when and how often the program will appear in the NBTV schedule. If the program is not approved for telecast, the presenter will be notified by electronic or written correspondence from the City Manager or his/her designee that the program has not been approved for telecast. The City Manager or his/her designee may reject programming for any reason allowed under the law and may provide his or her reasoning for rejecting the programming along with recommendations that would make the programming acceptable for viewing on NBTV. The presenter may then re -submit the proposal not earlier than a month from the date that the correspondence from the City Manager or his/her designee is post -marked, with an attached correspondence explaining to the City Manager or his/her designee how the program has been altered to meet the recommendations of the City Manager's Office. A proposal may not be re- submitted after it has been rejected twice. g. An individual presenter may not submit more than two programs in a calendar month and not more than twelve programs in a calendar year, without the express written consent of the City Manager or his/her designee. 2. NBTV Bulletin Board Procedure a. The City Council, City Commissions, Boards and Committees, and all City departments, may submit public service messages to be displayed in alpha- numeric form on NBTV during non -programming hours. Local schools or non- profit organizations hosting a fundraising event or activity within Newport Beach may also submit messages for consideration. All messages must be submitted in writing, and must be submitted at least three working days prior to the requested start date. Forms for this service may be accessed online at newportbeachca.gov/nbtv. b. Messages submitted by the City Council, City Commissions, Boards, Committees and all City departments are subject to final approval by the City Manager or his/her designee. c. Messages should be concise and contain basic information concerning what, when, where, how, and how much. Messages may not exceed 100 words without Exhibit A-1 Page 6 11-26 the express written consent of the City Manager or his/her designee. If necessary, City staff will edit the message to improve readability, to make it fit on one page, or to insure the message is grammatically correct. d. All submitted messages must be accompanied by the name of the submitting department or organization, the name and phone number of a contact person, and whether or not that information is to appear in the message. Submissions should include desired start and end dates. e. No classified ads and/or commercial messages will be allowed on NBTV. Receipt of public service message does not in any way guarantee its appearance on NBTV. Final approval, based on these Guidelines and compliance with City policies, will be determined by the City Manager or his/her designee. g. Every attempt will be made to input all messages received by NBTV. In the case that channel capacity is at a peak, messages will be carried a maximum of three days each, and on a first-come, first-served basis, with the following priorities: Emergency and public service notification messages, originated by the Police Department, Fire Department or Emergency Services; ii. Announcements requested by the City Council; iii. Announcements requested by the City Manager; iv. Announcements requested by City department heads, City Commissions, Boards or Committees; v. Announcements requested by local schools or non-profit organizations. 3. Event Coverage Procedure a. To request live or taped coverage of an event by NBTV, the applicant must contact the City's Public Information Office at 949-644-3031. b. The request must be made a minimum of ten working days before the scheduled event. c. It is the responsibility of the applicant to obtain all on-site approvals and off-site permissions for taping. This includes permission from property or business owners, performers, event coordinators, etc. Approvals should all be obtained in writing prior to submitting the application. The City Manager or his/her designee may ask for proof of approvals prior to considering the request, and may require the applicant to sign a statement that all necessary clearances have been secured and that the applicant agrees to indemnify the city. The application must Exhibit A-1 Page 7 11-27 be approved by the City Manager or his/her designee including approval of the production costs to be incurred by the City. d. It will be the applicant's responsibility to pay any extra costs incurred by the production, including, but not limited to, all admittance fees, artwork and graphics, union or other professional fees, clearance fees, royalties and permission fees. e. A request originating from any City department must be approved by the City Manager or his/her designee. f. The City Manager or his/her designee will consider each request based on: i. Compliance with City policies and these Guidelines. ii. News or entertainment value. iii. Availability of staff or City consultants. iv. Availability of equipment and facilities. v. Capabilities of staff, consultant and equipment. g. Receipt of an application does not in any way guarantee approval of applicant's request. The City Manager or his/her designee has sole and absolute discretion to approve, conditionally approve, or deny an application. h. Completed programs and all work footage shall be the sole property of the City. Taping and/or post production of the event does not in any way guarantee that the event will be telecast on NBTV. The City Manager or his/her designee will have the final approval authority concerning the telecast of any program. 4. Live Coverage of City Functions a. NBTV currently carries live coverage of the City Council meetings and designated Commission, Board and Committee meetings. Exhibit A-1 Page 8 11-28 EXHIBIT B SCHEDULE OF BILLING RATES Consultant shall provide the services indicated in Exhibit A in accordance with the following Schedule of Billing Rates: SERVICE DESCRIPTION ANNUAL COST ANNUAL FREQUENCY COST City Council Meetings (video 24 Meetings $510 $12,240 production services to include: camera operation, editing, postproduction ,etc. Planning Commission Meetings 24 Meetings $260 $6,240 (video production services to include: camera operation, editing, postproduction etc. NBTV Monthly Administration Fee 12 Months $2,475 $29,700 Billed month) Video Production Blended Rate 1800 Hours $40 $72,000 YEAR 1 TOTAL: $120,180.00 YEAR 2 TOTAL*: $123,785.40 (Option Term YEAR 3 TOTAL*: $127,498.96 (Option Term YEAR 4 TOTAL*: $131,323.93 CONTRACT NOT -TO -EXCEED {NTE} AMOUNT: $502,788.29 *(Inclusive of 3% annual contract rate increase) Miscellaneous Items Should the Consultant intend to purchase usage rights for fonts, graphics, music, video or similar non -City owned or copyright content, the Consultant shall submit a request to the City for consideration. The request shall include information detailing the specific and intended use and the reasoning for the purchase of the materials. The City shall make the final determination of the request and, if approved, shall purchase and retain ownership of the materials for consultant's use specifically and solely for NBTV programs. The total not -to -exceed amount of this Agreement ($502,788.29) includes all potential Option Terms, reimbursable expenses, miscellaneous items, subcontractor or subconsultant fees and contingency. Newport Beach & Company Page B-1 11-29 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 City Council, boards and commissions, officers, agents, volunteers and employees. 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. Newport Beach & Company Page C-1 11-30 4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: A. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its City Council, boards and commissions, officers, agents, volunteers and employees 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, its City Council, boards and commissions, officers, agents, volunteers and employees shall be included as insureds under such policies. C. Primary and Non Contributory. All liability coverage shall apply on a primary basis and shall not require contribution from any insurance or self-insurance maintained by 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. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least fifteen (15) days prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or reduced, Consultant shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies. City reserves the right to require complete, certified copies of all required insurance policies, at any time. Newport Beach & Company Page C-2 11-31 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. Right to Review Subcontracts. Consultant agrees that upon request, all agreements with subcontractors or others with whom Consultant enters into contracts with on behalf of City will be submitted to City for review. Failure of City to request copies of such agreements will not impose any liability on City, or its employees. Consultant shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Consultant shall ensure that City is an additional insured on insurance required from subcontractors. For CGL coverage, subcontractors shall provide coverage with a format at least as broad as CG 20380413. D. Enforcement of Agreement Provisions. Consultant acknowledges and agrees that any actual or alleged failure on the part of City to inform Consultant of non-compliance with any requirement imposes no additional obligations on City nor does it waive any rights hereunder. E. 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. F. 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. G. 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. Newport Beach & Company Page C-3 11-32 H. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant's performance under this Agreement, 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. 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. Newport Beach & Company Page C-4 11-33