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HomeMy WebLinkAboutC-4200 - License Agreement for Beach Information Monitor0 0 C -4aoo BEACH INFORMATION MONITOR LICENSE AGREEMENT This Beach Info mation Monitor License Agreement ( "Agreement "), dated this IaW day of , 2009, is made by and between the CITY OF NEWPORT BEACH, a Muhicipal Corporation ( "City "), and MIOCEAN FOUNDATION, a California nonprofit Public Benefit Corporation ( "Miocean ") whose address is 16795 Von Karman, Suite 100, Irvine, CA 92606. RECITALS WHEREAS, since 2001, Miocean has completed major filtration projects and is focused on other projects to improve the water quality at Orange County beaches and supports environmental education programs that teach the public about ocean science, water quality, and preventing pollution; and WHEREAS, Miocean has partnered with the public and private sector to increase public awareness and to reduce local ocean pollution and make measurable improvements to the water quality, and WHEREAS, Miocean will continue to fundraise toward development of and to expand its community outreach and pollution prevention projects at Orange County beaches; and WHEREAS, the City and Miocean share a common interest in establishing a partnership toward providing modem information technology to serve environmental education, interpretive in public awareness programs, and visitor information to be implemented as a cooperative effort; and WHEREAS, Miocean offers to use its fundraising and private sector and business skills to work together with the City in the implementation of a computer - operated LCD screen display program for the purpose of communicating current beach conditions, water quality information, relevant beach closure or warning messages, and other information that fits within the common interests shared by the City and Miocean. COVENANTS Recitals The Recitals set forth above are true and correct, are a material part of this Agreement, and are incorporated herein by this reference. 2. Purchase And Installation of Beach Information Monitors 0 0 2.1 The City hereby grants Miocean a license to install a 32" or 46" LCD exterior display referenced in Article 2.2 at locations approved by the City in writing at the beaches set forth in Article 2.3 2.2 Miocean agrees to purchase, install, test, and make operational 32" or 46" LCD exterior displays with integrated mini computers and wireless technologies at the beaches set forth in Article 2.3 and any future locations mutually agreed to by the parties in writing. Miocean shall be liable for any damages to City facilities or private property associated with the installation of said items and shall be liable for any liens or encumbrances related thereto. 2.3 Location. The parties agree that the initial beaches selected to be investigated for the installation of the Beach Information Monitors shall be: (1) Big Corona; (2) Little Corona; and (3) the Newport Beach Pier. The actual locations of the Beach Information Monitors will be determined by the City in its sole discretion and shall be on or attached to existing structures. The location(s) for the installation of additional Beach Information Monitors in the future shall be mutually agreed to by the parties in writing. 2.4 Power Supply. The City shall supply sufficient power (estimated at 110v) to service the displays. 2.5 Construction. Miocean shall negotiate and enter into a contract with a licensed contractor to install the Beach Information Monitors. The cost of construction, with the exception of supplying sufficient power as referenced in Article 2.4, shall be the responsibility of Miocean. The contractor selected to install the Beach Information Monitors shall provide proof of adequate insurance in conformity with the City requirements as set forth in Exhibit A. 2.6 Permitting. The City agrees to waive any and all permitting fees with respect to the beach information monitor project and will use its best efforts to assist Miocean and its contractor in expediting the permitting process. 3. Operation 3.1 Miocean shall develop and maintain, for the duration of the term of this agreement, the back end information technology server, infrastructure and software necessary to transmit the data to the Beach Information Monitors. 3.2 The Monitors shall be silent at all times. They shall not carry audible messages. 0 0 3.3 The Monitors shall be remotely controlled and /or timed so that they are not lit or operated between dusk and dawn each day. 4. Beach Information Monitor Content 4.1 The City and Miocean agree that the purpose of the Beach Information Monitors is to present silent messages on ocean water quality, ocean wave and water conditions, beach closure, pollution prevention, environmental awareness, ocean science, and possible natural hazards, and other messaging as mutually agreed upon between Miocean and the City. 4.2 Sponsorship Logos. The parties agree that the logos of the City and Miocean will be displayed on the Beach Information Monitors in a manner and size as mutually agreed upon. The City and Miocean further agree that Miocean shall be able to display sponsorship logos on each beach information monitor of a size and appearance that is mutually agreed to by the parties and which mutual agreement shall not be unreasonably withheld. The parties agree that up to five (5) logos may be displayed on each beach information monitor. 4.3 Screens. Currently, Miocean intends to display screens containing content from Wave Watch and Heal the Bay. The general information from each screen, and any future screens, shall be reviewed by the parties subject to the approval by the City in writing, and which approval shall not be unreasonably withheld. 4.4 Maintenance. The City agrees to assume responsibility of maintaining the Beach Information Monitors in a manner consistent with this agreement in order to operate as intended and to pay for the associated costs for maintaining the Beach Information Monitors after Miocean and the City jointly certify that they are functional as designed for their prescribed useful life. In the event that the beach information monitor is damaged to the extent that it is nonfunctional, Miocean assumes the responsibility to remove the damaged monitor and associated equipment. Miocean, at its sole discretion, may choose to replace any monitor that becomes nonfunctional at that same location. 4.5 Indemnification relating to Data Displayed. The parties agree to work in concert to develop appropriate disclaimers associated with wave information and other data prepared for the Monitors to ensure that the City and Miocean are indemnified for any data inaccuracies. This shall be done before Miocean purchases or 3 L E installs the Monitors. In the event the City Attorney and Miocean do not reach agreement on appropriate hold harmless and indemnification language adequately protecting both parties, the City may terminate the agreement. S. Ownership Miocean shall retain ownership of the Beach Information Monitors and associated improvements for a period of twenty -four (24) months after final completion. At the conclusion of the twenty -four (24) month period, Miocean may offer to dedicate the improvements to the City at Miocean's sole option; and, at City's sole option, shall be the property of the City upon acceptance in writing by the City in a manner consistent with City policies and procedures regarding gifts and donations. 6. Sponsorship The parties agree that Miocean may enter into sponsorship agreements with respect to the Beach Information Monitors. The form and substance of the sponsorship agreements shall be mutually agreed upon by the parties in writing, which agreement shall not be unreasonably withheld. The parties mutually agree that no sponsorship agreement shall be approved that are in conflict with any other contractual agreements in which the City is a party. The proceeds of sponsorship agreements shall be for the purpose of (1) reimbursing Miocean for the capital program costs of developing the software and purchasing and installing the Beach Information Monitors; (2) establishing a replacement and maintenance endowment fund for the Beach Information Monitors; and (3) funding other water quality related projects at the sole discretion of Miocean. 7. Dissemination of Public Information The parties agree to work in concert and include each other in the preparation of and distribution of all public information regarding the beach information monitor program, which is the subject of this agreement. The public information which are intended to be released to the public are subject to the mutual pre - approval in writing of the parties to this agreement. 8. Chances and Modifications Changes and modifications to this agreement shall be performed pursuant to written agreement by the parties. 9. Notices All notices or other communications which may be required or provided under the terms of this agreement shall be provided to the following: 4 0 City: Attn: David Kiff City Managers Office City of Newport Beach 3300 Newport Boulevard PO Box 1768 Newport Beach, CA 92663 Phone: 949 -644 -3002 Fax: 949 - 644 -3020 0 Miocean: Allisa Resh, Administrative Director Miocean Foundation 16795 Von Karman, Suite 100 Irvine, CA 92606 10. Indemnity To the fullest extent permitted by law, Miocean 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, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this License, any work performed or services provided under this License including, without limitation, defects in workmanship or materials or Miocean's presence or activities conducted that relate in any way to this License (including the negligent and /or willful acts, errors and /or omissions of Miocean, its contractors, subcontractors, employees, vendors, suppliers, and anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Miocean to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this License. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Miocean. 11. Conflict of Interest Miocean and its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (a) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this License, and (b) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the 0 0 Act, Miocean shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this License by City. Miocean shall indemnify and hold harmless City for any and all claims for damages resulting from Miocean's violation of this Section. 12. Termination Notwithstanding the term of this Agreement, this Agreement may be terminated during the term or any extended term in the following manner: 12.1 By Miocean: At any time, without cause upon the giving of thirty (30) days written notice of termination to City after one calendar year of operation; or 12.2 By City: In accordance with the provisions of Section 4.5 or, at any time, without cause upon the giving of thirty (30) days written notice of termination to Miocean after one calendar year of operation; or 12.3 By mutual consent: At any time, by mutual written consent of both Parties. Miocean shall retain ownership of any improvements and shall pay the cost of removing said improvements and repairing the City property in an appropriate and good workmanlike manner. Notice of Termination shall be in writing and shall state the date upon which such termination is effective. 13. interarated Agreement This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 14. Controilina Law and Venue The laws of the State of California shall govern this License and all matters relating to it and any action brought relating to this License shall be adjudicated in a court of competent jurisdiction in the County of Orange. 15. Independent Relationship It is understood that Miocean is not an agent or employee of City. Nothing in this License shall be deemed to constitute approval for Miocean or any of Miocean's employees or agents, to be the agents or employees of City. 16. Cooperation 0 0 Miocean agrees to work closely and cooperate fully with City and any other agencies that may have jurisdiction or interest in the work to be performed. City agrees to cooperate with the Miocean in regards to this License. 17. City Policy Miocean shall discuss and review all matters relating to this License with City representatives in advance of all critical decision points to ensure the actions taken pursuant to this License proceed in a manner consistent with City goals and policies. 18. Prohibition against Assignment and Transfer This License shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City which approval may be withheld in the City's sole discretion. 7 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY By: A 0,-- C Aaron C. Harp, Assistant City Attorney for the City of Newport Beach ATTEST: M-.wes �► Leilani I. B City Clerk, Z'''�'oRN1PP Exhibit A: Insurance Requirements CITY OFNfWPORT BEACH, A MuniAnA Cor)r tion E,Jward D. 8eli6fi, Mayor for the City of Newport Beach MIOCEAN FOUNDATION: B Print Name: Title: 9 • EXHIBIT A: INSURANCE REQUIREMENTS Insurance is to be placed with insurers with a Best's rating of no less than A:VII and insurers must be a California Admitted Insurance Company. Contractor shall furnish City with original certificates of insurance and with original endorsements effecting coverage required by the City. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and endorsements are to be received and approved by City before work commences. City reserves the right to require complete, certified copies of all required insurance policies, at any time. Contractor shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by Contractor, his agents, representatives, employees or subcontractors. Minimum Scope of Insurance Coverage shall be at least as broad as: a) Insurance Services Office Commercial General Liability coverage "occurrence" form number CG 0002 (Edition 11/85) or Insurance Services Office form number GL 0002 (Edition 1/73) covering Comprehensive General Liability and Insurance Services Office form number GL 0404 covering Broad Form Comprehensive General Liability. b) Insurance Services Office Business Auto Coverage form number CA 0002 0287 covering Automobile Liability, code 1 "any auto" and endorsement CA 0029 1288 Changes in Business Auto and Truckers Coverage forms - Insured Contract. c) Workers' Compensation insurance as required by the Labor Code of the State of California and Employers Liability insurance. 2. Minimum Limits of Insurance Coverage limits shall be no less than: a) General Liability: $1,000,000.00 combined single limit per occurrence for bodily injury, personal injury and property damage. If Commercial Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. 0 4. 0 • b) Automobile Liability: $1,000,000.00 combined single limit per accident for bodily injury and property damage. c) Workers' Compensation and Employers Liability: Workers' compensation limits as required by the Labor Code of the State of California and Employers Liability. Deductibles and Self- Insured Retentions Any deductibles or self- insured retentions must be declared to and approved by City. At the option of City, either: the insurer shall reduce or eliminate such deductibles or self - insured retentions as respects City, its officers, officials, employees and volunteers; or Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. Other Insurance Provisions The policies are to contain, or be endorsed to contain, the following provisions: a) General Liability and Automobile Liability Coverages City, its officers, agents, officials, employees and volunteers are to be covered as additional insureds as respects: liability arising out of activities performed by or on behalf of Contractor, including the insured's general supervision of Contractor, products and completed operations of Contractor premises owned, occupied or used by Contractor; or automobiles owned, leased, hired or borrowed by Contractor. The coverage shall contain no special limitations on the scope of protection afforded to City, its officers, officials, employees or volunteers. ii. Contractor's insurance coverage shall be primary insurance and /or primary source of recovery as respects City, its officers, officials, employees and volunteers. Any insurance or self - insurance maintained by City, its officers, officials, employees and volunteers shall be excess of the Contractor's insurance and shall not contribute with it. iii. Any failure to comply with reporting shall not affect coverage provided to officials, employees and volunteers. provisions of the policies City, its officers, agents, IN 0 • iv. Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurers liability. V. The insurance afforded by the policy for contractual liability shall include liability assumed by contractor under any indemnification /hold harmless provision. b) Workers' Compensation and Employers Liability Coverage The insurer shall agree to waive all rights of subrogation against City, its officers, agents, officials, employees and volunteers for losses arising from work performed by Contractor. c) All Coverages Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled, rescinded by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to City. 11 i • CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT h(Ni 1 <: 2009 Agenda Item M0_ TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: City Manager's Office Dave Kiff, Assistant C'dy Manager 949/644 -3002 or dki%city.newport- beach.ca.us SUBJECT: Agreement with Miocean Foundation Regarding Beach Information Monitors ISSUE: Should the City allow Miocean to install and operate up to three beach information monitors at locations in Newport Beach? Authorize the Mayor to execute a License Agreement with Miooan Foundation to install and operate up to three beach information monitors at City - approved beach locations. DISCUSSION: Miocean Foundation is a local non - profit organization interested in protecting ocean, bay and tributary water quality, including educating the public about beach water quality. Miocean has been a major sponsor of the Back Bay Science Center at Shellmaker Island, having contributed $500,000 for that project. Miocean has asked the City to work with Miocean again on another project — that of installing and operating beach information monitors (as shown in the below diagram) at up to three beach locations. The beach information monitors (which are either 32" or 46" flat screen monitor; which are weatherproof, vandal resistant, and wirelessly connected) would provide customized real -time beach information data, including: • Current surf conditions; • Air and water temperatures; • Tidal conditions; and • Current water quality information (information more related to letter grades of the beach from Heal the Bay, not day - today OC Health Care Agency bacteria test results — although Heal the Bay compiles letter grades for beaches based on OC HCA daily standards over time). The screens would also provide water quality educational messages. The Concept Plan that Miocean developed is Attachment B to this staff report. Mioleach Monitoring Screens May 12, 2009 Page 2 The screen concepts include three screens, two of which are shown below as they relate to Salt Creek Beach in southern Orange County: Display Examples Miocean Beach Monitoring Screens May 12, 2009 Page 3 The Coastal -Bay Water Quality Committee saw this proposal as helpful to the beachgoer because it could increase beachgoers' knowledge of beach conditions, of water quality, and of ways to help improve water quality when they return home. The Committee suggested that: • Big Corona, Little Corona and the Newport Pier would be good locations for such monitors; • The technology and use be tested for a period of time, and evaluated based on benefits, costs, and maintenance obligations after a year; • The City retain control over content and review and approve messages, sponsor logos, and any item on the screens; • That the devices not be used as advertisements but as informational messages helpful to the beachgoer; • That they be placed in unobtrusive spaces, on existing buildings (the concession at CDM or the restroom at Little Corona) and near electrical outlets; and • That they not add to noise or glare — being both silent and automatically shut off at night. At the same time, the Newport Beach Lifeguards raised some concerns, which are summarized (in italics) and responded to (in regular font) as follows: 1) Some of the information that Miocean now proposes to use (from wavewatch.com and Heal the Bay) may not be relevant or accurate to speciifc beaches. For example, 'checking wavewatch. com (now), the sun' forecast is for 55" Stand is already three days old. The surf at 560' St is not the same as it is at Big Corona, Little Corona or the Newport Pier." Heal the Bay does indeed use letter grades that are based on long term data for each beach. The monitors should state this fact, including that local paper signs staked on the beach by the lifeguards overrule any Heal the Bay data, and that beachgoers should heed local postings or closures. I would worry more about the frequency of this conflict if the beaches chosen were in -Bay beaches like 43rd Street, but our water quality at Little Corona, Big Corona, and the Newport Pier is consistently excellent, with very few bacteria postings. As to surf forecasts, the City will want to work with the City Attorney and with Miocean (as provided in the agreement) to better tailor the information and to assure appropriate indemnities for the information provided. 2) The City should have greater control over content. This is reflected in the proposed licensing agreement. Miocean does indeed advertise its presence as a non - profit interested in raising awareness about good water quality, but it is not a corporation nor a business that seeks to use the monitors to advertise a product or service. 3) Newport Lifeguards' past use of a "Weather Board" at the Newport Pier brought complaints because the Board wasn't always reflective of current conditions. Providing the data electronically may not be much better than the weather boards, but that's in part why the program is on a trial basis. We will have to continue to work with Miocean to ensure that the data placed on the monitors is as accurate as possible and provides some educational benefit (the latter being the strong suit of the program according to Coastal /Bay — in effect, the beach information is what draws the reader to the monitor so that we can also get them to read and hopefully understand the water quality message that follows the beach information screen). I i Miocean Beach Monitoring Screens May 12, 2009 Page 4 The City Attorney's office prepared a draft Licensing Agreement for Council's consideration — key aspects of the Agreement are summarized here: • Mlocean would purchase and install the monitors at their cost; • Sites initially designated are Big Corona, Little Corona, and the Newport Pier; • The monitors must be attached to existing structures. • City supplies and pays for the power to the displays (estimated at 110v); • The screens will be remotely controlled and timed to turn on at daybreak and turned off before dusk to avoid light or glare issues in the surrounding neighborhood; • No noise or sound will emit from the monitors; • Adequate construction insurance is required; • Miocean will develop and maintain the back end infrastructure and software necessary to transmit the data to the monitors; • Content must be the presentation of messages on ocean water quality, ocean wave and water conditions, beach closure, pollution prevention, environmental awareness, ocean science, and possible natural hazards, and other messaging as mutually agreed upon. • Logos of the City and Miocean will be displayed, and up to three additional logos as mutually agreed upon. • City would maintain (clean, keep up) the monitors as long as they are certified by the City and Miocean as functional as designed for their useful life. If damaged, Miocean must remove or replace. • Miocean would own the monitors for 2 years. At the end of 2 years, Miocean would offer to dedicate the improvements to the City; and, at City's sole option, shall be the City's property. • City could cancel the program after one year if it so chose. • City and Miocean would work together to prepare and disseminate all public information for the program. Environmental Review: This Project is exempt from CEQA under the General Rule — it can be seen with certainty that there is no possibility that the activity in question will have a significant effect on the environment Public Notice: This agenda item may be noticed according to the Ralph M. Brown Act (72 hours in advance of the public meeting at which the City Council considers the item). Submitted by: Dave Ciff Assistant City Manager Attachment A: Draft Licensing Agreement B: Miocean Beachgoer Educational Display Concept Plan i • Miocean Beach Monitoring Screens May 12, 2009 Page 5 Attachment A BEACH INFORMATION MONITOR LICENSE AGREEMENT This Beach Information Monitor License Agreement ("Agreement), dated this day of 2009, is made by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "), and MIOCEAN FOUNDATION, a California nonprofit Public Benefit Corporation ( "Miocean") whose address is 16795 Von Karman, Suite 100, Irvine, CA 92606. RECITALS WHEREAS, since 2001, Miocean has completed major filtration projects and is focused on other projects to improve the water quality at Orange County beaches and supports environmental education programs that teach the public about ocean science, water quality, and preventing pollution; and WHEREAS, Miocean has partnered with the public and private sector to increase public awareness and to reduce local ocean pollution and make measurable improvements to the water quality; and WHEREAS, Miocean will continue to fundraise toward development of and to expand its community outreach and pollution prevention projects at Orange County beaches; and WHEREAS, the City and Miocean share a common interest in establishing a partnership toward providing modern information technology to serve environmental education, interpretive in public awareness programs, and visitor information to be implemented as a cooperative effort; and WHEREAS, Miooean offers to use its fundralsing and private sector and business skills to work together with the City in the implementation of a computer - operated LCD screen display program for the purpose of communicating current beach conditions, water quality Information, relevant beach closure or warning messages, and other information that fits within the common interests shared by the City and Miocean. COVENANTS 1. Recitals The Recitals set forth above are true and correct, are a material part of this Agreement, and are Incorporated herein by this reference. 8 Miocean Beach Monitoring Screens May 12, 2009 Page B 2. Purchase And Installation of Beach Information Monitors 2.1 The City hereby grants Miocean a license to install a 32" or 46" LCD exterior display referenced in Article 2.2 at locations approved by the City in writing at the beaches set forth in Article 2.3 2.2 Miocean agrees to purchase, install, test, and make operational 32" or 46" LCD exterior displays with integrated mini computers and wireless technologies at the beaches set forth in Article 2.3 and any future locations mutually agreed to by the parties in writing. Miocean shall be liable for any damages to City facilities or private property associated with the installation of said items and shall be liable for any liens or encumbrances related thereto. 2.3 Location. The parties agree that the initial beaches selected to be investigated for the installation of the Beach Information Monitors shall be: (1) Big Corona; (2) Little Corona; and (3) the Newport Beach Pier. The actual locations of the Beach Information Monitors will be determined by the City in its sole discretion and shall be on or attached to existing structures. The location(s) for the installation of additional Beach Information Monitors in the future shall be mutually agreed to by the parties in writing. 2.4 Power Supply. The City shall supply sufficient power (estimated at 11 Ov) to service the displays. 2.5 Construction. Miocean shall negotiate and enter into a contract with a licensed contractor to install the Beach Information Monitors. The cost of construction, with the exception of supplying sufficient power as referenced in Article 2.4, shall be the responsibility of Miocean. The contractor selected to install the Beach Information Monitors shall provide proof of adequate insurance in conformity with the City requirements as set forth in Exhibit A. 2.6 Permitting. The City agrees to waive any and all permitting fees with respect to the beach information monitor project and will use its best efforts to assist Miocean and its contractor in expediting the permitting process. 3. Operation 3,1 Woman shall develop and maintain, for the duration of the tern of this agreement, the back end information technology server, Miocean Beach Monitoring Screens May 12, 2009 Page 7 infrastructure and software necessary to transmit the data to the Beach Information Monitors. 3.2 The Monitors shall be silent at all times. They shall not carry audible messages. 3.3 The Monitors shall be remotely controlled and /or timed so that they are not lit or operated between dusk and dawn each day. 4. Beach Information Monitor Content 4.1 Information Purpose. The City and Miocean agree that the purpose of the Beach Information Monitors is to present silent messages on ocean water quality, ocean wave and water conditions, beach closure, pollution prevention, environmental awareness, ocean science, and possible natural hazards, and other messaging as mutually agreed upon between Miocean and the City. 4.2 Sponsorship Logos. The parties agree that the logos of the City and Miocean will be displayed on the Beach Information Monitors in a manner and size as mutually agreed upon. The City and Miocean further agree that Miocean shall be able to display sponsorship logos on each beach information monitor of a size and appearance that is mutually agreed to by the parties and which mutual agreement shall not be unreasonably withheld. The parties agree that up to five (5) logos may be displayed on each beach information monitor. 4.3 Screens. Currently, Miocean intends to display screens containing content from Wave Watch and Heal the Bay. The general information from each screen, and any future screens, shall be reviewed by the parties subject to the approval by the City in writing, and which approval shall not be unreasonably withheld. 4.4 Maintenance. The City agrees to assume responsibility of maintaining the Beach Information Monitors in a manner consistent with this agreement in order to operate as intended and to pay for the associated costs for maintaining the Beach Information Monitors after Miocean and the City jointly certify that they are functional as designed for their prescribed useful life. In the event that the beach information monitor is damaged to the extent that it is nonfunctional, Miocean assumes the responsibility to remove the damaged monitor and associated equipment. Miocean, at its sole Miocean Beach Monitoring Screens May 12, 2009 Page 8 discretion, may choose to replace any monitor that becomes nonfunctional at that same location. 4.5 Indemnification relating to Data Displayed. The parties agree to work in concert to develop appropriate disclaimers associated with wave information and other data prepared for the Monitors to ensure that the City and Mlocean are indemnified for any data inaccuracies. This shall be done before Miooean purchases or installs the Monitors. In the event the City Attorney and Miocean do not reach agreement on appropriate hold harmless and indemnification language adequately protecting both parties, the City may terminate the agreement. 5. Ownership Miocean shall retain ownership of the Beach Information Monitors and associated improvements for a period of twenty -four (24) months after final completion. At the conclusion of the twenty -four (24) month period, Miooean may offer to dedicate the improvements to the City at Miocean's sole option; and, at City's sole option, shall be the property of the City upon acceptance in writing by the City in a manner consistent with City policies and procedures regarding gifts and donations. 6. Sponsorship The parties agree that Miocean may enter into sponsorship agreements with respect to the Beach Information Monitors. The form and substance of the sponsorship agreements shall be mutually agreed upon by the parties in writing, which agreement shall not be unreasonably withheld. The parties mutually agree that no sponsorship agreement shall be approved that are in conflict with any other contractual agreements in which the City is a party. The proceeds of sponsorship agreements shall be for the purpose of (1) reimbursing Miooean for the capital program costs of developing the software and purchasing and installing the Beach Information Monitors; (2) establishing a replacement and maintenance endowment fund for the Beach Information Monitors; and (3) funding other water quality related projects at the sole discretion of Miocean. 7. Dissemination of Public Information The parties agree to work in concert and include each other in the preparation of and distribution of all public information regarding the beach information monitor program, which is the subject of this agreement. The public information which are Intended to be released to the public are subject to the mutual pre- approval in writing of the parties to this agreement Woman Beach Monitoring Screens May 12, 2009 Page 9 8. Changes and Modifications Changes and modifications to this agreement shall be performed pursuant to written agreement by the parties. 9. Notices All notices or other communications which may be required or provided under the terms of this agreement shall be provided to the following: City: Attn: David Kiff City Manager's Office City of Newport Beach 3300 Newport Boulevard PO Box 1768 Newport Beach, CA, 92663 Phone: 949- 6443002 Fax: 949 -644 -3020 Miocean: Allisa Resh, Administrative Director Miocean Foundation 16795 Von Karmen, Suite 100 Irvine, CA 92606 10. Indemnity To the fullest extent permitted by law, Woman 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, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this License, any work performed or services provided under this License including, without limitation, defects in workmanship or materials or Miocean's presence or activities conducted that relate in anyway to this License (including the negligent and /or willful acts, errors and /or omissions of Miocean, its contractors, subcontractors, employees, vendors, suppliers, and anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Miocean to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees Miocean Beach Monitoring Screens May 12, 2009 Page 10 in any action on or to enforce the terms of this License. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of Indemnification to be provided by the Miocean. 11. Conflict of Interest Miocean and its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"}, which (a) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this License, and (b) prohibits such persons from making, or participating in making, decisions that will foreseeabiy financially affect such interest. If subject to the Act, Miocean shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this License by City. Miocean shall indemnify and hold harmless City for any and all claims for damages resulting from Miocean's violation of this Section. 12. Termination Notwithstanding the term of this Agreement, this Agreement may be terminated during the term or any extended term in the following manner: 12.1 By Miocean: At any time, without cause upon the giving of thirty (30) days written notice of temsination to City after one calendar year of operation; or 12.2 By City: In accordance with the provisions of Section 4.5 or, at any time, without cause upon the giving of thirty (30) days written notice of termination to Miocean after one calendar year of operation; or 12.3 By mutual consent: At any time, by mutual written consent of both Parties. Miocean shall retain ownership of any improvements and shall pay the cost of removing said improvements and repairing the City property in an appropriate and good workmanlike manner. Notice of Termination shall be in writing and shall state the date upon which such termination is effective. 13. Integrated Agreement This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 14. Controllina Law and Venue Miocean Beach Monitoring Screens May 12, 2009 Page 11 The laws of the State of California shall govern this License and all matters relating to it and any action brought relating to this License shall be adjudicated in a court of competent jurisdiction in the County of Orange. 16. Independent Relationship It is understood that Miocean is not an agent or employee of City. Nothing in this License shall be deemed to constitute approval for Miocean or any of Miocean's employees or agents, to be the agents or employees of City. 16. Cooperation Miocean agrees to work closely and cooperate fully with City and any other agencies that may have jurisdiction or interest In the work to be performed. City agrees to cooperate with the Miocean in regards to this License. 17. City Pollcy Miocean shall discuss and review all matters relating to this License with City representatives In advance of all critical decision points to ensure the actions taken pursuant to this License proceed in a manner consistent with City goals and policies. 18. Prohibition aaairmt Assignment and Transfer This License shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City which approval may be withheld in the City's sole discretion. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY By: David Hunt, City Attorney for the City of Newport Beach CITY OF NEWPORT BEACH, A Municipal Corporation By: Edward D. Selich, Mayor for the City of Newport Beach ATTEST: By: Leilani I. Brown, City Clerk Exhibit A: Insurance Requirements Miowan Beach Monitoring Screens May 12, 2009 Page 12 MIOCEAN FOUNDATION: By:, Print Name: Title: Miocean Beach Monitoring Screens May 12, 2009 Page 13 EXHIBIT A: INSURANCE REQUIREMENTS Insurance is to be placed with insurers with a Best's rating of no less than A:VII and insurers must be a California Admitted Insurance Company. Contractor shall fumish City with original certificates of insurance and with original endorsements effecting coverage required by the City. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and endorsements are to be received and approved by City before work commences. City reserves the right to require complete, certified copies of all required insurance policies, at any time. Contractor shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by Contractor, his agents, representatives, employees or subcontractors. Minimum Scope of Insurance Coverage shall be at least as broad as: a) Insurance Services Office Commercial General Liability coverage "occurrence" form number CG 0002 (Edition 11185) or Insurance Services Office form number GL 0002 (Edition 1173) covering Comprehensive General Liability and Insurance Services Office form number GL 0404 covering Broad Form Comprehensive General Liability. b) Insurance Services Office Business Auto Coverage form number CA 0002 0287 covering Automobile Liability, code 1 "any auto" and endorsement CA 0029 1288 Changes in Business Auto and Truckers Coverage forms - Insured Contract. c) Workers' Compensation insurance as required by the Labor Code of the State of California and Employers Liability insurance. 2. Minimum Limits of Insurance Coverage limits shall be no less than: a) General Liability: $1,000,000.00 combined single limit per occurrence for bodily injury, personal injury and property damage. If Commercial Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this projecUlocafion or the general aggregate limit shall be twice the required occurrence limit. Miocean Beach Monitoring Screens May 12, 2009 Page 14 b) Automobile Liability: $1,000,000.00 combined single limit per accident for bodily injury and property damage. c) Workers' Compensation and Employers Liability: Workers' compensation limits as required by the Labor Code of the State of California and Employers Liability. 3. Deductibles and Self- Insured Retentions Any deductibles or self - insured retentions must be declared to and approved by City. At the option of City, either the insurer shall reduce or eliminate such deductibles or self- Insured retentions as respects City, its officers, officials, employees and volunteers; or Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. 4. Other Insurance Provisions The policies are to contain, or be endorsed to contain, the following provisions: a) General Liability and Automobile Liability Coverages City, its officers, agents, officials, employees and volunteers are to be covered as additional insureds as respects: liability arising out of activities performed by or on behalf of Contractor, including the insured's general supervision of Contractor; products and completed operations of Contractor; premises owned, occupied or used by Contractor; or automobiles owned, leased, hired or borrowed by Contractor. The coverage shall contain no special limitations on the scope of protection afforded to City, its officers, officials, employees or volunteers. ii. Contractor's insurance coverage shall be primary insurance and/or primary source of recovery as respects City, its officers, officials, employees and volunteers. Any insurance or self - Insurance maintained by City, its officers, officials, employees and volunteers shall be excess of the Contractor's insurance and shall not contribute with it. iii. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its officers, agents, officials, employees and volunteers. 0 Miccean Beach Monftoring Screens May 12, 2009 Page 15 iv. Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. V. The insurance afforded by the policy for contractual liability shall include liability assumed by contractor under any indemnificationthold harmless provision. b) Workers' Compensation and Employers Liability Coverage The insurer shall agree to waive all rights of subrogation against City, its officers, agents, officials, employees and volunteers for losses arising from work performed by Contractor. c) All Coverages Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled, rescinded by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to City. W V 0 0 mioceon Miocean Foundation Beachgoer Educational Display Technology Conceptual Plan Issue: Miocean has identified a need at Orange County beaches to inform and educate recreational beochgoers of current weather, ocean, and water quality information. While this information can be found at various locations on the internet, it is not readily accessible to beachgoers at particular beaches. Solution: Miocean Foundation has developed an information technology solution to transmit customized beach data on an almost real -time basis to weather proof, vandal resistant, and wirelessly connected flat screen monitors that can be installed at popular beaches along Orange County's coastline. Located at strategic coastal locations, this highly informative signage will effectively inform and educate beach goers about current surf conditions, aid and water temperature, tidal conditions, and current water quality sampling results at the beach where the monitor is located. This information will bring greater awareness and education to beachgoers about the ocean and the conditions of the water. Technical Design: Water quality data will be presented on 32 or 46 inch LCD flat panel displays (see Exhibit A). These displays are designed to be weather proof and vandal resistant as fully contained units and would be mounted on vandal resistant poles, buildings, bridges, overpasses, or other locations to meet the needs of the specific beach site. The screens will be controlled by an integrated mini - computer utilizing mobile or wireless technology to communicate with a central server that will disseminate beach specific information multiple times throughout the day. The screens will be programmed to power down at dusk and power up at dawn to reduce power use and to be less of a target for vandalism at night. The mini - computer will periodically connect to the internet and download an XML file containing data to display on the LCD screen and will be programmed to fully control the LCD screen, process the XML data, and populate graphical elements on the LCD display (see Exhibit B for an example of display information). P.O. Box 14246 * !Mre, California * 92623 -4246 * t. 949.271.4386 * t 888.4.MIOCEM * i 949.474.1306 * w .miocean.com MW W 0 Backend software and a central server will be developed by Miocean and implemented to serve data to the signs. The server will collect publicly available water quality data on a periodic basis from Heal the Bay. Heal the Bay has developed a rating standard for beaches that has become widely accepted by state and local agencies. Heal the Bay utilize data that is collected by various local agencies on a weekly basis at beaches along the Orange County coast. The beach water quality letter grade and other pertinent data will be inserted into an XML file for each of the remote display units. When the remote display unit connects to the internet, the latest data will be transmitted and displayed on the sign. The central server will host an administrative web site allowing authorized staff to log in and view the status of all deployed screens. Content Design: The information proposed for each beach display is as follows. The layout in Exhibit B has been designed by a graphic artist and contains the essential information that is intended to be displayed. • Beach Name (e.g., Solt Creek Beach). • Current quality grades (data from Heal the Bay). • Surf conditions such as water temp, wave height, swell direction, and wind (data from Wavewatch). • Current date and time. • Lost updated date. • General water quality and urban runoff related educational information • Disclaimer sufficient to protect agencies, partners, and Miocean. • Unobtrusive logo placement for sponsors of each sign. Proposed locations: Currently, Miocean has identified Solt Creek Beach in Dana Point and Aliso Creek Beach in Laguna Beach as initial locations to install beach monitors. Miocean is actively seeking partnerships with all coastal cities to install monitors at beaches through Orange County. Fundraising: Miocean will seek annual sponsorships and endowment funding through BIue42 pledges and targeted corporate solicitations. The BIue42 is Miocean's annual fundraising event; proceeds benefit the 42 -miles of Orange County's coastline. Miocean has invested a substantial amount of upfront capital to develop the technology to support these beach monitors. Additionally, through the placement of small and unobtrusive logos on each beach monitor, Mioceon will fund the installation and data management costs of each sign through its donor base. In order Our Oceo Your Ocean. �VuoCron to make funding attractive to donors, every sign will have limited space dedicated to the placement of small, unobtrusive donor logos (see Exhibit B). As the initial displays prove effective, Miocean's fundraising and implementation plan will expand beyond Orange County beaches to benefit communities up and down the coast. Mioceon has targeted San Diego County and the City of Santa Monica as potential future locations to install beach monitors. Cost estimate: Description Cost Comment Startup Costs Mioceon obligation 32" LCD Outdoor Display 10,053 Approximate price Installation /Construction 3,000 Costs may vary, but this is probably ample Backend database development 5,000 T&M estimate for integration and updates Contingency (10 %) 1,805 Allowance Freight and Tax (8.75%) 1,738 Current estimate does not include freight 21,546 initial Miocean funding obligation per sign Recurring Costs Annual local jurisdiction obligation Display maintenance and upkeep 600 Estimate only. This could vary dramatically (vandal fund) depending on vandalism and other unknowns Capital Reserve Fund (12 year 838 replacement) 1,438 Annual estimated cast per sign Implementation: Supplementary documents enclosed: Exhibit A: Technical Spec Sheets • Aaeon AEC -6860 Spec Sheet • Digi Conned Data Sheet • Texis Digital Omnivue Spec Sheets Exhibit B: Display • Beach Signage Screens (3) Implementation schedule Site photographs Our Ocecn. Your Oceon. Miocron