HomeMy WebLinkAbout19 - NBTV Programming OperationsSUPPLEMENTAL STAFF REPORT
CITY OF
1 NEWPORT BEACH
City Council Staff Report
March 25, 2014
Agenda Item No. 19.
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Dave Kiff, City Manager— (949) 644 -3002, dkiff @newportbeachca.gov
PREPARED BY: Tara Finnigan
PHONE: 949 - 644 -3035
TITLE: Professional Services Agreement with Newport Beach & Company to Manage NBTV
Programming and Station Operations (CONSENT CALENDAR)
ABSTRACT:
Staff is recommending the approval of an agreement with Newport Beach & Company to
manage the station operations and programming for NBTV for $150,000 per year. A partnership
with Newport Beach & Company would help the City to expand NBTV programming and better
promote the City's government channel.
RECOMMENDATION:
a) Authorize the Mayor to approve a Professional Services Agreement with Newport Beach &
Company for the management of NBTV operations and programming at a not -to- exceed cost of
$150,000 per year; and
b) Authorize the Mayor and City Clerk to execute the Agreement.
FUNDING REQUIREMENTS:
The current adopted budget includes sufficient funding for this agreement.
DISCUSSION:
Background
The City of Newport Beach (City) has programmed and operated its own government cable
television channel, called Newport Beach Television (NBTV), since April 2007. NBTV
programming is available within Newport Beach to Time Warner and Cox cable television
subscribers and to the general public via web streaming through the City's web site
(newportbeachca.gov). NBTV primarily airs programming created and produced by the City, but
also includes some programming produced and contributed by other local, state and federal
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agencies. The programs produced by NBTV include City Council meetings and shows that
feature City programs and projects, local events, and City history.
NBTV operates on a modest budget with a small staff. The original programming (other than
City Council meetings) typically follows a "news- style" 30- minute format in which a host
conducts interviews. Little or no b -roll (background footage), graphics or effects are
incorporated. The part-time production crew is also limited in how much time they can spend
shooting and editing film. This format helps to contain costs, but it also limits production values.
There has been an underlying need, however, to invest more time and money into
programming.
At the March 11, 2014 City Council meeting, staff proposed outsourcing the management of
NBTV programming and operations to Newport Beach & Company (NB & Co.) and proposed
agreement terms for a professional services agreement (agreement). After some discussion,
the City Council directed staff to return with an agreement for the City Council's
consideration. The proposed agreement is attached.
Agreement Terms
The key terms of the agreement are as follows:
• The initial term is for two years. The agreement includes the option to renew for up to two,
additional, one -year terms.
• NB & Co. will be compensated $150,000 per year for accomplishing the tasks outlined in
the scope of work (included as Exhibit A to the professional services agreement).
• NB & Co. will meet monthly with staff from the City Manager's Office to discuss NBTV
programming and scheduling.
• All programming and content published on NBTV will comply with the NBTV Guidelines
(included as Exhibit B to the professional services agreement).
• NB & Co. will produce a brief, annual report describing the programming provided and will
provide quarterly reports on any sponsorships received.
Page B -2 of Exhibit A of the professional services agreement clarifies who is responsible for
soliciting and obtaining sponsorships for NBTV, how those funds are to be utilized, and how NB
& Co. reports that information to the City.
NBTV Guidelines
Staff also made changes to the NBTV Guidelines based upon questions raised and direction
received from the City Council on March 11.
• Under Section VII, Program Type, staff removed the reference to editing from #2 Live
Programs. The sentence now reads, "Meetings to be carried gavel to gavel."
• In Section VIII, Access Policy, under #1 b (pertains to Public Programming Request
Procedures), staff added language indicating that the City may require an applicant to sign
a statement indicating all approvals for replaying a program have been secured and
requiring the applicant to indemnify the City from any third -party claims related to the
program.
• In Section VIII, Access Policy, under #2a, staff added that bulletin board submissions must
adhere to all applicable City Council Policies.
• Staff also removed a provision from Section VIII, under #3c, which required an applicant to
indemnify the City when a crew is filming an event. This requirement placed a burden on
the applicant and is ultimately not necessary given the existing indemnity provisions in the
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draft professional services agreement with NB & Co.
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.
NOTICING:
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).
ATTACHMENTS:
Description
Attachment A - Professional Services Agreement with Newport Beach & Company for NBTV Management
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PROFESSIONAL SERVICES AGREEMENT
WITH NEWPORT BEACH & COMPANY FOR
MANAGEMENT OF NBTV PROGRAMMING AND OPERATIONS
THIS PROFESSIONAL SERVICES AGREEMENT ( "Agreement ") is made and
entered into as of this 26th day of March, 2014 ( "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 public benefit
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 the NBTV
programming and operations ( "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
The initial term of this Agreement shall be for two (2) years commencing on the
Effective Date and expiring on March 31, 2016, unless terminated earlier as set forth
herein. City shall have the option to renew the Agreement for two (2) additional one (1)
year terms upon thirty (30) calendar days prior written notice by the City's Project
Administrator.
2. SERVICES TO BE PERFORMED
Consultant shall diligently perform all the services described in the Scope of
Services ( "Services" or "Work ") attached hereto as Exhibit A and in accordance with the
NBTV Guidelines ( "Guidelines) attached hereto as Exhibit B and all incorporated herein
by reference. City may elect to delete certain Services within the Scope of Services at
its sole discretion, upon first giving prior written notice to Consultant describing the
Services to be deleted and providing Consultant an opportunity to respond on the
Services to be deleted.
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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 and the Guidelines included in Exhibit B. 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 Exhibits
A and B, 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 flat rate basis in
accordance with the provisions of this Section and the Schedule of Billing Rates
attached hereto as Exhibit C 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 One Hundred Fifty
Thousand Dollars and 00/100 ($150,000.00) per year for a total not to exceed amount
of Six Hundred Thousand Dollars and 00/100 ($600,000.00) over the term of the
Agreement, without prior written authorization from City. Sponsorship funds received by
Consultant under the Guidelines, if any, shall be in addition to the compensation
provided in this section and shall be expended by Consultant to fund the Services
provided in this Agreement. 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
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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 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 C.
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 Tom Johnson 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 may provide a written response to City regarding any personnel
requested to be removed. Consultant warrants that it will continuously furnish the
necessary personnel to complete the Project on a timely basis as contemplated by this
Agreement.
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 (1) 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 and its Project Manager possess the
professional and technical personnel required to perform the Services required by this
Agreement, and that they will perform all Services in a manner commensurate with the
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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, Consultant certifies that
the Work conforms to the requirements of this Agreement, all applicable federal, state
and local laws, and the highest professional standards.
8.3 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.
8.4 Consultant shall not be responsible for delay beyond Consultant's control,
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.
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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 D, and incorporated herein by reference.
15. REPORTING AND ACCOUNTING REQUIREMENTS
15.1 At all times during the term of this Agreement, Consultant shall maintain
true, proper, and complete books, records, and accounts (collectively, "Books and
Records ") in which shall be entered fully and accurately all transactions taken with
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respect to the operations of Consultant on NBTV activities and the expenditure of any
sponsorship funds received pursuant to the Guidelines. Consultant shall maintain the
Books and Records in accordance with Generally Accepted Accounting Principles.
15.2 Consultant shall submit, on a quarterly basis, a report to the City's Project
Administrator describing the efforts taken in the previous quarter to obtain sponsorships
along with an accounting of sponsorships received and NBTV expenditures.
15.3 City reserves the right to designate its own employee representative(s) or
its contracted representative(s) with a Certified Public Accounting firm who shall have
the right to audit Consultant's accounting procedures and internal controls of
Consultant's financial systems as they relate to this Agreement and to examine any
cost, revenue, sponsorship, payment, claim, other records or supporting documentation
resulting from any items set forth in this Agreement. Any such audit(s) shall be
undertaken by City or its representative(s) at mutually agreed upon reasonable times
and in conformance with generally accepted auditing standards. Consultant agrees to
fully cooperate with any such audit(s).
15.4 This right to audit shall extend during the length of this Agreement and for
a period of five (5) years or longer, if required by law, following the date of termination
under this Agreement. Consultant agrees to retain all necessary records /documentation
for the entire length of this audit period.
15.5 Consultant agrees to exercise prudent financial management processes
including proper oversight of all assets, budget preparation, and timely reporting
including budget -to- actual- comparisons.
16. 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.
17. SUBCONTRACTING
. 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
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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.
18. OWNERSHIP OF DOCUMENTS
18.1 Each and every report, draft, map, record, plan, document and other
writing produced, including but not limited to, websites, blogs, videos, programming,
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 recordings, broadcasts,
videos and 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 written request. Notwithstanding the foregoing,
during the term of this Agreement, City's right to use such Documents shall be limited to
carrying out the purposes of this Agreement.
18.2 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.
18.3 Notwithstanding the above, Consultant is permitted to utilize any
recordings, broadcasts, videos and footage developed in the performance of the Work
under this Agreement for purposes of promoting the City.
18.4 All written documents shall be transmitted to City in formats compatible
with Microsoft Office and /or viewable with Adobe Acrobat.
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.
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20. 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.
21. 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 five (5) 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 five (5) years from the date of final payment to Consultant
under this Agreement.
22. 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.
23. 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, production, editing, filming, 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.
24. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the
Project..
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25. CONFLICTS OF INTEREST
25.1 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.
25.2 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.
26. NOTICES
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.
26.2 All notices, demands, requests or approvals from Consultant to City shall
be addressed to City at:
Attn: Tara Finnigan
City Manager's Office
City of Newport Beach
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
26.3 All notices, demands, requests or approvals from City to Consultant shall
be addressed to Consultant at:
Attn: Gary Sherwin
Newport Beach & Company
1600 Newport Center Drive, Suite 120
Newport Beach, CA 92660
27. 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
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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.).
28. TERMINATION
28.1 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.
28.2 Notwithstanding the above provisions, City shall have the right, at its sole
and absolute discretion and without cause, of terminating this Agreement at any time by
giving no less than thirty (30) calendar days' prior written notice to 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.
29. STANDARD PROVISIONS
29.1 Recitals. City and Consultant acknowledge that the above Recitals are
true and correct and are hereby incorporated by reference into this Agreement.
29.2 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.
29.3 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.
29.4 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
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herein. No verbal agreement or implied covenant shall be held to vary the provisions
herein.
29.5 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.
29.6 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.
29.7 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.
29.8 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.
29.9 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.
29.10 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 of race, religion, color, national origin, handicap,
ancestry, sex, age or any other impermissible basis under law.
29.11 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.
29.12 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]
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473
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORI�IEY'rS OFFICE
Date: 3 Lo /Y
Aaron C. H'at
City Attorney
ATTEST:
Date:
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By:
Rush N
Mayor
Hill, II
CONSULTANT: Newport Beach &
Company, a California corporation
Date:
By:
Gary Sherwin
President & CEO
Date:
Lesley Swain
Chief Financial Officer
[END OF SIGNATURES]
Attachments: Exhibit A — Scope of Services
Exhibit B — NBTV Guidelines
Exhibit C — Schedule of Billing Rates
Exhibit D — Insurance Requirements
Newport Beach & Company Page 12
474
EXHIBIT A
SCOPE OF SERVICES
The Consultant shall be responsible for providing production and administration
services in support of NBTV. The City will retain ownership of NBTV field and edit bay
equipment.
Production Services
Develop and /or oversee production of City Council meetings and programming
for NBTV. Responsibilities include researching and writing interview questions
and scripts, arranging interviews and providing show hosts, coordinating lighting
and audio levels, designing sets, camera operation, editing and production.
Programming will include but will not be limited to:
City Programs:
• City Council meetings (regular, special and emergency) — (approximately
25 per year)
• Pick a Pet or Other City Program (once monthly, 30- minute program)
• Speak Up Newport (once monthly, 60- minute program)
• City Topics (a minimum of 12, monthly, 30 -60 minute programs)
• Short videos (1 -2 "shorts" weekly)
• Special projects (b -roll, editing existing programs, training videos, in -depth
look at issues)
• City and Community events and activities
City Programs Production Hours — not to exceed 2,208 hours per fiscal year
Expanded Monthly Programming to include, but not be limited to:
o I- Report (video of youth activities - sports, school plays, etc.) supplied by
parents .
• Dine Newport Beach — featuring local restaurants and chefs
• What's Happening — highlighting things to do in Newport Beach
• Active Newport Beach— focusing on health, wellness and fitness
• Major Special events
• A talk show featuring news and events occurring in town
• Other
Ensure that NBTV field equipment (cameras, microphones, etc.) is handled with
care and supplies are stocked (tape, batteries, etc.). Consultant shall promptly
inform the City Project Administrator of any .necessary or recommended
equipment maintenance needs.
• Ensure that only trained personnel operate the NBTV edit bay equipment.
475
• Work with City's engineering contractor to ensure that all edit bay equipment,
microphones, television monitors, character generators, modulators, computers,
hardware /software and other accessories are maintained in good working order
and technology is up to date.
• Inform the City Project Administrator of any necessary or recommended
equipment maintenance needs. City Project Administrator shall have sole and
absolute discretion to determine the equipment maintenance to perform.
• Manage and maintain music and special effects libraries.
• Coordinate proper file conversion for broadcast systems, computer systems and
web -based systems.
Administration Services
• Coordinate the production of televised video programs for NBTV and playback,
including loading, programming, scheduling and monitoring of playback quality.
• Schedule hosts, guests, camera operator — contacting, following up with
assignment overview & directions.
• Maintain inventory, specify and request equipment and supplies for NBTV as
needed.
• Respond to public requests for information regarding NBTV programming and
schedule.
• Manage production staff including scheduling assignments.
• Provide video duplication services to the public, City staff and City Council.
Assist staff in responding to California Public Record Act requests related to
NBTV.
• Archiving Services - organize and maintain video library and digital archives of
multiple formats, including the City's recorded meetings, show archives, and
historical footage.
• Maintain and monitor web streaming of NBTV, including public meetings.
• Assist City staff with the maintenance and updating of NBTV's community bulletin
board.
• Promote NBTV programs and events on television and the web.
• Meet on a monthly basis with representatives of the City Manager's Office to
discuss programming and scheduling.
• Prepare and submit a report on an annual basis each March to the City Project
Administrator describing the programming provided in the previous twelve (12)
months. Report shall also include metrics showing the reach and impact of
NBTV on City visitors, residents and businesses.
Sponsorships
Consultant is authorized to solicit and obtain sponsorships for NBTV, consistent with the
Guidelines, provided that all sponsorship funds are utilized to finance and support NBTV
activities and programs.
Consultant shall submit, on an quarterly basis, a report to the City Project Administrator
describing the efforts taken in the previous quarter to obtain sponsorships along with an
Newport Beach & Company Page B -2 476
accounting of sponsorships received and NBTV expenditures in accordance with
Section 15 of the Agreement.
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EXHIBIT B
NBTV GUIDELINES
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.
III. 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% 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.
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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 and the written consent or clearance indemnifies the City for any
third party claims. This consent shall be made by an authorized representative
on a form provided by the City and approved as to form by the City Attorney.
(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:
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a. Corporations or Divisions or Subsidiaries of a Corporation.
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
1. 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
Newport Beach & Company Page C -3 480
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 programming may be interrupted or canceled. The content and
Newport Beach & Company Page C -4 481
scheduling of any emergency programming must be approved by the City Manager
or his /her designee.
Live Programs: Live coverage of City Council and designated City Commission,
Board and Committee meetings take place as often as necessary. Meetings to be
carried gavel -to- gavel.
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.
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 an application
describing 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. The application may be accessed
online at www.newportbeachca.gov /nbtv.
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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.
f. 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. Submissions must
adhere to all applicable City Council Policies. 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
www.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 the express written consent of the City Manager or his /her designee. If
Newport Beach & Company Page C -6 483
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.
f. 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:
i. 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 City staff, the applicant must fill
out and submit an application. Forms may be obtained at
www.newportbeachca.gov/nbtv.
b. The application must be submitted 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. The application must be approved by the City Manager or
Newport Beach & Company Page C -7 484
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.
i. 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.
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EXHIBIT C
BILLING RATES
$12,500/ per month not to exceed $150,000 per year.
Compensation includes all reimbursable expenses, including all subcontractor or
subconsultant fees.
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EXHIBIT D
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, 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. 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
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vehicles, in an amount not less than one million dollars ($1,000,000)
combined single limit each accident.
D. Professional Liability (Errors & Omissions) Insurance. Consultant 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 Consultant agrees to maintain
continuous coverage through a period no less than three years after
completion of the Services required by this Agreement.
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 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
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Agreement. City reserves the right to require complete, certified copies of
all required insurance policies, at anytime.
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
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.
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.
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