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HomeMy WebLinkAboutC-7369-2 - Community Program Agreement for Environmental Educational Programsl' + (" CITY OF NEWPORT BEACH COMMUNITY PROGRAM AGREEMENT FOR ENVIRONMENTAL EDUCATIONAL Lj PROGRAMS OFFERED BY NEWPORT BAY CONSERVANCY THIS COMMUNITY PROGRAM AGREEMENT ("Agreement") is made and entered into as of this 1st day of June, 2023 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and NEWPORT BAY NATURALISTS AND FRIENDS, a California non-profit public benefit corporation doing business as ("DBA") NEWPORT BAY CONSERVANCY ("NBC"), whose address is 600 Shellmaker Road, 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 NBC to provide programs in environmental education as reflected in the Scope of Programs and Operation, attached hereto as Exhibit "A" and incorporated herein by reference, (individually "Program", collectively, "Programs") for all ages at the Back Bay Science Center Complex ("BBSC Complex") located at 600 Shellmaker Road, Newport Beach, California 92660. C. NBC possesses the skill, experience, ability, background, certification and knowledge to provide the Programs described in this Agreement. D. City has reviewed the experience and evaluated the expertise of NBC, and desires to retain NBC to provide the Programs under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the Effective Date and shall terminate on May 31, 2028, unless terminated earlier as set forth herein. 2. CONSIDERATION City shall provide a facility site for the Programs offered by NBC and NBC shall collect all applicable registration and material fees (collectively, "Fees") for the Programs and shall remit to City one hundred percent (100%) of all Fees collected within ten (10) business days of such collection. 3. DUTIES OF CITY 3.1 Facility. City shall provide NBC access to, and use of, the BBSC Complex as a location to provide Programs without charging NBC any rental fees, unless otherwise agreed by the parties. Available dates and times are Sundays 8:OOam - 5:OOpm and as requested, based on availability. It is NBC's sole responsibility to request these dates/times in writing. City will provide NBC with the deadlines to have the Programs approved pursuant to the process outlined by the State of California for operating programs at the BBSC Complex. City will not schedule the Programs without receiving date/time requests from NBC. The BBSC Complex shall only be used for Programs authorized by the City under this Agreement. 4. NBC DUTIES 4.1 Registration. NBC shall register all participants of the Programs. NBC shall only collect Fees when published in advance on NBC's website. Fees shall be collected by NBC on or before the first Program meeting. 4.2 Scheduling. NBC shall schedule Community Day events (hereinafter "Community Day") on their online calendar and on any relevant printed materials in order to inform the public of Community Day dates; the City will not be responsible for any scheduling or advertising concerning Community Day unless otherwise agreed upon by the City. 4.3 NBC Representatives. 4.3.1 Certification. NBC hereby certifies that it, or any subcontractor, representative and/or employee (collectively "Representative" or "Representatives") who will be teaching the Programs or assisting in teaching the Programs is qualified to do so, and qualified to perform the services above and in the Programs outline submitted to the City. NBC is responsible for all Programs curriculum development. NBC is responsible for training, supervising, evaluating, scheduling, and any other requirements by law for all Representatives. NBC warrants that it will continuously furnish the necessary personnel to provide the Programs as contemplated by this Agreement. 4.3.2 Background Checks. NBC shall provide City with the names(s), address(es) and phone number(s) of all Representatives who will be providing any services pursuant to this Agreement. All Representatives must comply with the Fingerprint and Criminal Background Check policy in this Agreement. All Representatives must be able to provide proof of legal right to work in the United States. 4.4 Subcontracting. NBC shall not subcontract or assign any portion of the rights, obligations or duties required under this Agreement, without first obtaining prior written approval from City. Subcontracts, if any, shall contain a provision making them subject to all provisions of this Agreement. Newport Bay Conservancy Page 2 4.5 Supplies/Equipment. NBC shall be responsible for providing all supplies, equipment, personnel, materials, and any additional publicity desired for the Programs, at NBC's sole expense, unless otherwise agreed to in writing by City. NBC shall also be responsible for repairing and maintaining all equipment and supplies in good working condition. 4.6 Anti -Discrimination Laws. NBC agrees and certifies that no person shall, on the grounds of race, religious creed, color, national origin, ancestry, age, physical disability, mental disability, medical condition, including the medical condition of Acquired Immune Deficiency Syndrome (AIDS) or any condition related thereto, marital status, sex, sexual orientation or any other impermissible bias under the law, be excluded from participation in, or be denied the benefits of the services provided pursuant to this Agreement except as otherwise permitted by law. NBC shall, where applicable, conform to the requirements of the Americans with Disabilities Act in the performance of this Agreement. 4.7 Absences. 4.7.1 Permission. NBC shall obtain City's written permission at least one (1) calendar week prior to any planned absence from the Programs. In the event of illness, NBC is required to notify City and participants at least twelve (12) hours prior to any Program(s) cancellation. 4.7.2 Substitution. City urges NBC to get a substitute Representative whenever possible instead of canceling Programs. NBC shall obtain City's prior written approval of any substitute Representative. Any substitute Representative must have completed fingerprinting and a criminal background check pursuant to this Agreement prior to teaching any Programs. 4.8 Contact Information. NBC is required to notify City in writing of any name, address, telephone number, and email and/or website changes within forty-eight (48) hours of such change. 4.9 Other Requirements. NBC shall: 4.9.1 Cooperate fully with all reasonable requests from City staff; 4.9.2 Maintain the highest degree of participant safety possible; 4.9.3 Injuries or Damages. Immediately report to City's staff by phone or email any injuries as a result of participation in Programs, damages to the BBSC Complex or Programs facility that could cause potential injury to a Programs participant, and/or other needed maintenance repairs; Newport Bay Conservancy Page 3 4.9.4 Clear all participants from the designated Program area at the end of Program; 4.9.5 Know facility rules and regulations and provide pertinent information to participants; 4.9.6 Abide by all City policies and procedures; and 4.9.7 Without limiting NBC's indemnification of City, and prior to commencement of Programs, NBC shall obtain, provide and maintain at its own expense during the term of this Agreement or for other periods as specified in this Agreement, policies of insurance of the type, amounts, terms and conditions described in the Insurance Requirements, attached hereto as Exhibit "B" and incorporated herein by reference. 4.10 Mandated Reporter. NBC acknowledges receipt of California Penal Code sections 11164-11174.3 and Mandated Reporting of Child Abuse/Neglect at the time of execution of the Agreement. NBC accepts and assumes full responsibility for role as a "Mandated Reporter", as defined by the California Penal Code. NBC agrees to train all of its staff, prior to working with children, of their role and responsibility as a mandated reporter, as determined by law. 5. PROJECT ADMINISTRATOR This Agreement will be administered by the Recreation & Senior Services Department. The NBC Supervisor 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. 6. NOTICES Unless otherwise indicated, all notices, demands, requests or approvals, including change of address notices, 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. Newport Bay Conservancy Page 4 6.1 All notices, demands, requests or approvals from NBC to City shall be addressed to City at: Attn: Recreation Supervisor Recreation & Senior Services Department City of Newport Beach 100 Civic Center Drive PO Box 1768 Newport Beach, CA 92660 6.2 All notices, demands, requests or approvals from City to NBC shall be addressed to NBC at: Attn: Heather Cieslak Newport Bay Conservancy 600 Shellmaker Rd. Newport Beach, CA 92660 7. INDEPENDENT CONTRACTOR The parties intend and agree that at all times during the performance of services or provision of the Programs under this Agreement, NBC and NBC's agents, employees and Representatives shall act as an Independent Contractor and shall not be considered an agent or employee of City. As such, NBC shall have the sole legal responsibility to remit all federal and state income and social security taxes and to provide for his/her own workers compensation and unemployment insurance and that of his/her employees or representative. NBC also agrees to provide liability insurance as required by City and described more fully below. City shall not be liable for any payment or compensation in any form to NBC other than as provided herein. City reserves the right to employ other independent contractors who teach the same or similar Programs. 8. COMPLIANCE WITH ALL LAWS NBC and its employees, agents and representatives shall at all times observe and comply with all laws, ordinances and regulations. 9. FINGERPRINTS AND CRIMINAL BACKGROUND NBC certifies that all representatives, agents and/or employees of NBC submitted to and passed a criminal background investigation and provided a complete set of fingerprints on file with the Department of Justice. NBC further certifies that representatives, agents and/or employees shall provide to City a copy to confirm this requirement has been met. NBC shall not permit any representative, agent and/or employee to participate in Programs if this requirement has not been met. Newport Bay Conservancy Page 5 At any time during the term of this Agreement, if any representative, agent and/or employee is arrested for, or convicted of, a felony crime, NBC must report this to the City within one (1) business day of receiving such information. NBC must immediately remove said representative, agent and/or employee from any Programs. 10. CONFIDENTIALITY; OWNERSHIP OF DOCUMENTS All class rosters, participant addresses and contact information, and any other such information or documents compiled by City and provided to NBC, shall remain the property of City. NBC shall not release such information to others without the prior written authorization by City. NBC shall not use such information for any other purpose than that authorized by City. All class rosters, class participant addresses and contact information shall be used by NBC solely for administration of classes and performing City business. NBC shall take reasonable steps consistent with the law to prevent distribution of such information. NBC's obligations under this Section shall survive the termination of this Agreement. The rosters may not be used to market or advertise for the NBC's program offerings that are not jointly between City and NBC. 11. USE OF NAMES AND LOGOS; ADVERTISING, PRESS RELEASES AND PUBLICITY NBC and NBC's agents, employees and Representatives shall not include City's name, seal, logos or insignia, or photographs of the BBSC Complex or participants, in any publicity pertaining to NBC's services or Program in any magazine, trade paper, newspaper, radio or television production, Internet, or other printed or electronic medium without the prior written consent of City and participants. 12. HOLD HARMLESS 12.1 To the fullest extent permitted by law, NBC shall defend, indemnify, and hold harmless City, its elected and appointed officers, employees, agents, representatives, volunteers, the City Council, boards and commissions and any person or entity owning or otherwise in legal control of the property upon which NBC provides the Programs contemplated by this Agreement ("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 Programs performed or provided under this Agreement including, without limitation, defects in workmanship or materials or NBC's presence or activities conducted with respect to the Programs (including the negligent, reckless, and/or willful acts, errors Newport Bay Conservancy Page 6 and/or omissions of Contractor, its principals, officers, agents, employees, vendors, suppliers, Contractors, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable, or any or all of them). 12.2 Notwithstanding the foregoing, nothing herein shall be construed to require NBC 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 NBC. 13. INTELLECTUAL PROPERTY NBC shall defend, indemnify, and hold harmless the Indemnified Parties from any claim of infringement or other proceedings brought against City for any intentional or unintentional violation by NBC, its employees, representatives, officers and agents of the legally protected rights of any third parties, with respect to works performed, logos displayed, or written or digital materials provided by NBC and used during the performance of this Agreement. Such legally protected rights of third parties include but are not limited to trade secrets, moral rights, proprietary acts, U.S. patents, trademarks, service marks and copyrights vested or issued as of the Effective Date of this Agreement. If NBC provides a public performance of musical compositions or arrangements that is subject to a license held by a third party, it is the responsibility of NBC to obtain the appropriate license to perform the material prior to the public performance. 14. TERMINATION Either party may terminate this Agreement with cause by giving thirty (30) calendar days' prior written notice to the other party. Alternatively, either party may, at its sole discretion and without cause, terminate this Agreement by giving thirty (30) calendar days' prior written notice to the other party. 15. STANDARD PROVISONS 15.1 Compliance with all Laws. NBC 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. 15.2 Waiver. A waiver by City or NBC of any term, covenant, or condition in the Agreement shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition. 15.3 Integrated Contract. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and Agreements of whatsoever kind or nature are merged herein. No verbal contract or implied covenant shall be held to vary the provisions herein. Newport Bay Conservancy Page 7 15.4 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the Exhibits attached hereto, the terms of this Agreement shall govern. 15.5 Amendments. This Agreement may be modified or amended only by a written document executed by both NBC and City and approved as to form by the City Attorney. 15.6 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. 15.7 Equal Opportunity Employment. NBC 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. 15.8 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. 15.9 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. 15.10 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. 15.11 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. [SIGNATURES ON NEXT PAGE] Newport Bay Conservancy Page 8 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTO FFICE DateAY'S ?� �w on C. arp ti3 ity Attar ATTEST: Date: I P1 By: Brown City Clerk I- `\yam D u _. z CITY OF NEWPORT BEACH, A California munic pal corporation Date: t o 1 23 By: Sean Levin Recreation & Senior Services Director CONTRACTOR: NEWPORT BAY NATURALISTS AND FRIENDS, a California non-profit public benefit corporation doing business as ("DBA") NEWPORT BAY CONSERVANCY Date: Signed in Counterpart By: Cassandra Radcliff Chief Executive Officer Date: Signed in Counterpart By: Susie Onate Secretary [END OF SIGNATURES] Attachments: Exhibit A — Scope of Program and Operations Exhibit B — Insurance Requirements Newport Bay Conservancy Page 9 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM CITY ATTORNF�Y'S,OFFICE Date: 6 2� 23 By: A on C. Ha ity Attorn y ATTEST: Date: CITY OF NEWPORT BEACH, A California municipal corporation Date: IN Sean Levin Recreation & Senior Services Director CONTRACTOR: NEWPORT BAY NATURALISTS AND FRIENDS, a California non-profit public benefit corporation doing business as ("DBA") NEWPORT BAY CONSERy,A�C�f Date: J (� 1 By: By: _ (-� , J�' Leilani Brown Cassandra Ra cli City Clerk Chief Executive Officer Date: By: S ie nate Secretary [END OF SIGNATURES] Attachments: Exhibit A — Scope of Program and Operations Exhibit B — Insurance Requirements Newport Bay Conservancy Page 9 EXHIBIT A SCOPE OF PROGRAMS AND OPERATION I. Program Operating Terms. NBC shall oversee and conduct Programs approved by the BBSC Programs Committee. Requests for programs, other than Community Day, must be submitted through the BBSC Programs Committee facility use request form. NBC and/or its Representatives are authorized to access the Back Bay Science Center Complex ("BBSC Complex") and be on -site as an "Operating Partner." All Programs provided by NBC and/or its Representatives must comply with and assist City in attainment of the educational goals of the Operating Agreement between City and the California State Department of Fish and Wildlife, et al., dated February 26, 2008, which provides in pertinent part: Educational Objective. The primary educational objective of the Programs Group will be to provide high quality educational programs and exhibits for all age groups at the BBSC Complex efficiently utilizing available resources and coordinating programs with other facilities and providers in the Upper Newport Bay. The education emphasis of all Programs conducted at the BBSC Complex shall be research -based education for Grades 7-12 students and adults. Consistent with the Operating Agreement's requirements for Educational Duties of Programs, NBC and/or its Representatives shall: Educational Duties of the Programs. • Ensure that Teaching Lab programs are compliant with State education Standards for Water quality, ecology, habitat restoration, and/or plant and marine life; • Assure that all potential programs and exhibits have, or have identified, sufficient funding as a condition of approval; • Annually prepare a schedule for educational programs, workshops, and seminars at the BBSC Complex, subject to City approval; • Identify the educational needs of the community in the areas of water quality, ecology, habitat restoration, and/or plant and marine life; • Identify and communicate with each entity that provides or seeks to provide educational programs or opportunities at or near Newport Bay and/or the BBSC Complex ("Provider"); • Identify the resources that each Provider has available with respect to the education programs it offers or seeks to offer, including paid personnel, volunteers and educational material • Identify and evaluate existing educational materials and curriculum that may be appropriate for incorporation into new or existing education programs at the BBSC Complex; • Work with interested parties to coordinate educational events; • Coordinate educational program -related facilities needs with the Facilities Group; • Evaluate whether, and to what extent, the student or public education programs can or should be coordinated with research activities such as the Demonstration Marsh on Shellmaker Island; and • Coordinate with the County in its educational efforts, which may include development of an exterior interpretive panel on Water quality testing, designing water quality -related Curriculum, training educational personnel, assisting with higher level classes, and staffing a demonstration booth at special events at the BBSC Complex such as "Earth Day." NBC and/or its Representatives, as an acting Operating Partner, is permitted to use the City's designated office space during Programs and outside of approved Program hours. NBC shall not represent the City as an Operating Partner for the Programs Committee or Facilities Committee. I1. Program Operating Procedure. Community Day opens the BBSC Complex to the public to learn about marine life, the facility and educational program and involvement opportunities, including the loop trail and marine life. NBC AND/OR ITS REPRESENTATIVES ARE AUTHORIZED TO CONDUCT COMMUNITY DAY ON SUNDAYS FROM 10:OOAM - 2:OOPM. STAFF MAY ACCESS THE BBSC COMPLEX ON SUNDAYS FROM 8:30AM - 4:30PM FOR COMMUNITY DAY RELATED WORK. When NBC and/or its Representative(s) are staffing Community Day, they are to strictly adhere to any rules, agreements, and procedures outlined in this contract. NBC and/or its Representative(s) assigned to a Community Day shift will have weekly responsibilities in order to ensure the safety and program quality. shall: Prior to opening the facility for Community Day, NBC and/or its Representative(s) 1. Inspect the facility for cleanliness and safety; 2. Unlock restrooms and teaching labs; 3. Touch tanks should be inspected and opened; and 4. Open the main gate for public vehicle entry no later than 9:55am. During Community Day, NBC and/or its Representative(s) shall: 1. Be readily available to educate, assist, and monitor the public at all times; 2. Maintain a clean and safe facility; and 3. Report and document any accidents/incidents to NBC director. Prior to the close of each Community Day, NBC and/or its Representative(s) shall- 1 . Inspect the facility for cleanliness and safety; 2. Inspect and lock the touch tanks; 3. Lock all facilities including restrooms, teaching labs and office areas; and 4. Ensure the main gate is closed for public vehicle entry no later than 2:00pm. EXHIBIT B INSURANCE REQUIREMENTS Provision of Insurance. Without limiting NBC's indemnification of City, and prior to commencement of Work, NBC 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. NBC agrees to provide insurance in accordance with requirements set forth here. If NBC uses existing coverage to comply and that coverage does not meet these requirements, NBC 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. NBC 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. NBC 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. NBC 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. Sexual Abuse/Molestation. Sexual abuse/molestation coverage shall be included under Commercial General Liability or obtained in a separate policy with a limit no less than one million dollars ($1,000,000) per occurrence and three million dollars ($3,000,000) in the aggregate D. Automobile Liability Insurance. NBC 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 Newport Bay Conservancy Page B-1 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. E. Cyber Liability. Contractor shall maintain cyber liability insurance with limits of not less than one million dollars ($1,000,000) per occurrence and two million dollars ($2,000,000) annual aggregate covering (1) all acts, errors, omissions, negligence, infringement of intellectual property, (2) network security and privacy risks, including but not limited to unauthorized access, failure of security, breach of privacy perils, wrongful disclosure, collection, or negligence in the handling of confidential information, privacy perils, including coverage for related regulatory defense and penalties, and (3) data breach expenses payable whether incurred by City or Contractor, including but not limited to consumer notification, whether or not required by law, computer forensic investigations, public relations and crisis management firm fees, credit file or identity monitoring or remediation services, in the performance of services for City or on behalf of City hereunder. F. Comprehensive Crime Coverage. Contractor shall maintain Comprehensive Crime Coverage, including employee dishonesty/fidelity coverage, covering the theft, loss or destruction of money and securities either on -site or in -transit, in an amount not less than One Million Dollars and 00/100 ($1,000,000) 4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: A. Waiver of Subrogation.L 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 NBC or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. NBC 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 Newport Bay Conservancy Page B-2 (10) calendar days' notice is required) or nonrenewal of coverage for each required coverage. E. Subcontractors. NBC shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and NBC 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 20 38 04 13. 5. Additional Agreements Between the Parties. The parties hereby agree to the following: A. Evidence of Insurance. NBC 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 endorsements 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. 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 NBC sixty (60) calendar days' advance written notice of such change. If such change results in substantial additional cost to NBC, City and NBC may renegotiate NBC'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 20 38 04 13. D. Enforcement of Agreement Provisions. NBC acknowledges and agrees that any actual or alleged failure on the part of City to inform NBC of non - Newport Bay Conservancy Page B-3 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 NBC maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for higher limits maintained by NBC. 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 NBC 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 NBC'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 NBC or reimbursed by NBC upon demand. H. Timely Notice of Claims. NBC shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from NBC'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. NBC's Insurance. NBC 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. Newport Bay Conservancy Page B-4 Newport Bay Conservancy A Account Number FVOOOM922 Address: Status: 600C Shetimaker Road, Newport Beach, CA. 92660 Compliant with Waived Deficiencies.