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HomeMy WebLinkAboutC-7581-3 - Independent Contractor Agreement Recreation Programing and Sleeping Accommodations for the Fostering Interest in Nature Program (FIIN)W INDEPENDENT CONTRACTOR AGREEMENT FOR RECREATION PROGRAMING AND SLEEPING ACCOMMODATIONS (�- FOR THE FOSTERING INTEREST IN NATURE PROGRAM 1 This Independent Contractor Agreement ("Agreement") is made and entered into as of this 22nd day of August, 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 nonprofit corporation doing business as ("DBA") Newport Bay Conservancy ("Contractor"), 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 the City. B. On February 17, 2016, the California Coastal Commission ("Commission") issued to Olson Real Estate Group, Inc., d.b.a. R.D. Olson Development, a corrected Coastal Development Permit (Permit Application No. 5-14-1785) ("Permit"), regarding the development taking place within the coastal zone at 3300 Newport Boulevard, Newport Beach, California, County of Orange, Assessor's Parcel Number 423-111- 02. C. Pursuant to Permit Special Condition Number 6, Lower Cost Overnight Accommodations Mitigation, on September 15, 2016, the City entered into a Memorandum of Understanding with the Commission to memorialize the Commission's acceptance of the City's intent to use the in -lieu mitigation fee for providing lower -cost overnight accommodation opportunities in conjunction with an outdoor youth educational program in the vicinity of Newport Beach or greater Orange County, called the Fostering Interest in Nature ("FiiN") program. D. City and Contractor entered into that certain agreement, dated January 28, 2020, for Contractor to assist in the administration, operation and supervision of the FiiN program ("Prior Agreement"), and the parties now desire to enter into a revised and updated agreement pursuant to the terms and conditions set forth herein, to supersede the Prior Agreement, and to provide for the administration, operation and supervision of the FiiN program. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the Effective Date, and shall terminate on June 30, 2028, unless terminated earlier as provided herein. 2. SERVICES TO BE PERFORMED Contractor shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference ("Services" or "Work"). City may elect to delete certain Services within the Scope of Services at its sole discretion. 3. COMPENSATION 3.1 City shall pay Contractor on a time and expense not -to -exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Contractor's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Six Hundred Ninety Two Thousand Five Hundred Dollars and 00/100 ($692,500.00), without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 3.2 Contractor shall submit monthly invoices to City describing the Work performed the preceding month. Contractor's bills shall include the name of the person who performed the Work, a brief description of the Services performed and/or the specific task in the Scope of Services to which it relates, the date the Services were performed, the number of hours spent on all Work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Contractor no later than thirty (30) calendar days after approval of the monthly invoice by City staff. 3.3 City shall reimburse Contractor only for those costs or expenses specifically identified in Exhibit B to this Agreement or specifically approved in writing in advance by City. 3.4 Contractor 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 Work, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 4. DUTIES OF CITY The duties of the City are set forth in Exhibit A attached hereto and incorporated herein by reference. 5. CONTRACTOR DUTIES 5.1 Contractors. Contractor hereby certifies that it, or any subcontractor, representative, volunteer, or employee (collectively "Representative" or "Representatives") who will be teaching any class or assisting in teaching any class are qualified to do so, and qualified to perform the services described above and in the Newport Bay Naturalists and Friends DBA Newport Bay Conservancy Page 2 program outline submitted to City. Contractor is responsible for all program curriculum development. Contractor is responsible for training, supervising, evaluating, scheduling, and any other requirements by law for all Representatives. Contractor warrants that it will continuously furnish the necessary personnel to provide the Work as contemplated by this Agreement. 5.2 Representatives. Contractor shall provide City with the name(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 requirement set forth in this Agreement. All Representatives must be able to provide proof of legal right to work in the United States. 5.2.1 Representative Approval Form. Attached as Exhibit C, and incorporated herein by reference, is the Representative Approval Form ("Form"). Each Representative is required to obtain the written approval of the Recreation & Senior Services Director prior to performing any services under this Agreement. Prior to Contractor using any Representative to provide any services pursuant to this Agreement, Contractor shall submit to City a completed Form for each Representative that Contractor desires to use to provide services pursuant to this Agreement. Contractor, at the sole discretion of City, shall remove any Representative assigned to the performance of services pursuant to this Agreement upon written request of City. 5.2.2 Please initial the statement that applies: I will not be using Representatives. I will be using Representatives. Any completed and approved Forms shall be incorporated herein by reference. I shall not authorize any Representative to provide services pursuant to this Agreement unless and until the Recreation & Senior Services Director has approved in writing the completed Form for that individual Representative. 5.3 Subcontracting. Contractor 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. 5.4 Anti -Discrimination Laws. Contractor 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 basis 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. Contractor shall, where applicable, conform to the requirements of the Americans with Disabilities Act in the performance of this Agreement. Newport Bay Naturalists and Friends DBA Newport Bay Conservancy Page 3 18-5 program outline submitted to City. Contractor is responsible for all program curriculum development. Contractor is responsible for training, supervising, evaluating, scheduling, and any other requirements by law for all Representatives. Contractor warrants that it will continuously furnish the necessary personnel to provide the Work as contemplated by this Agreement. 5.2 Representatives. Contractor shall provide City with the name(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 requirement set forth in this Agreement. All Representatives must be able to provide proof of legal right to work in the United States. 5.2.1 Representative Approval Form. Attached as Exhibit C, and incorporated herein by reference, is the Representative Approval Form ("Form"). Each Representative is required to obtain the written approval of the Recreation & Senior Services Director prior to performing any services under this Agreement. Prior to Contractor using any Representative to provide any services pursuant to this Agreement, Contractor shall submit to City a completed Form for each Representative that Contractor desires to use to provide services pursuant to this Agreement. Contractor, at the sole discretion of City, shall remove any Representative assigned to the performance of services pursuant to this Agreement upon written request of City. 5.2.2 Please initial the statement that applies: will not be using Representatives. I will be using Representatives. Any completed and approved Forms shall be incorporated herein by reference. I shall not authorize any Representative to provide services pursuant to this Agreement unless and until the Recreation & Senior Services Director has approved in writing the completed Form for that individual Representative. 5.3 Subcontracting. Contractor 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. 5.4 Anti -Discrimination Laws. Contractor 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 basis 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. Contractor shall, where applicable, conform to the requirements of the Americans with Disabilities Act in the performance of this Agreement. Newport Bay Naturalists and Friends DBA Newport Bay Conservancy Page 3 5.5 Contractor Photo ID Badge. Contractor and Representatives are required to wear a City -provided Contractor Photo ID Badge at all times while engaging in services for City. Contractor shall be required to pay five dollars ($5.00) for any lost or replacement Contractor Photo ID Badge. Contractor Photo ID Badges are distributed upon execution or renewal of the Agreement with City. 5.6 Further obligations and duties of the Contractor are set forth in Exhibit A attached hereto and incorporated herein by reference. 6. PROJECT ADMINISTRATOR This Agreement will be administered by the Recreation & Senior Services Department. The Recreation Supervisor, 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. 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. 7.1 All notices, demands, requests or approvals from Contractor to City shall be addressed to City at: Attn.: Recreation & Senior Services Director Recreation & Senior Services Department City of Newport Beach 100 Civic Center Drive PO Box 1768 Newport Beach, CA 92658 7.2 All notices, demands, requests or approvals from City to Contractor shall be addressed to Contractor at: Attn.: Heather Cieslak Newport Beach Naturalists and Friends DBA Newport Bay Conservancy 600 Shellmaker Road Newport Beach, CA 92660 8. INDEPENDENT CONTRACTOR 8.1 The parties intend and agree that at all times during the performance of services under this Agreement, Contractor and Representatives shall act as an Independent Contractor and shall not be considered an agent or employee of City. As Newport Bay Naturalists and Friends DBA Newport Bay Conservancy Page 4 such, Contractor shall have the sole legal responsibility to remit all federal and state income and Social Security taxes and to provide for its own workers compensation and unemployment insurance and that of its Representatives. Contractor also agrees to provide liability insurance as required by City and described more fully below and in Exhibit D. City shall not be liable for any payment or compensation in any form to Contractor other than as provided herein. City reserves the right to employ other independent contractors and contractors who teach the same or similar classes. City shall provide Contractor with IRS Form 1099-MISC or other applicable IRS forms at the end of the calendar year for all fees paid to Contractor. 8.2 Contractor agrees and acknowledges that no individual performing the Work pursuant to this Agreement, including Contractor and Representatives, shall: work full-time for more than six (6) months; work regular part-time service of at least an average of twenty (20) hours per week for one year or longer; work nine hundred sixty (960) hours in any fiscal year; or already be a CalPERS member. 9. INSURANCE REQUIREMENTS Without limiting Contractor's indemnification of City, and prior to commencement of Work, Contractor 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. 10. FINGERPRINTS AND CRIMINAL BACKGROUND CHECK 10.1 Contractor and its Representatives must submit to and pass a criminal background investigation by providing a complete set of fingerprints to City at least thirty (30) calendar days prior to teaching, substituting for Contractor, interacting with minors, or assisting with any class. Contractor and its Representatives are required to submit fees pursuant to the administrative fee schedule (NBMC §3.36.030) to the City of Newport Beach, Recreation & Senior Services Department, to cover all costs associated with fingerprinting through the City of Newport Beach Police Department and the Department of Justice. Fingerprints may be required to be updated every five (5) years. 10.2 In addition, all classes involving participants age seventeen (17) years or younger ("minors") must be taught in an open atmosphere where parents and guardians are able to observe class instruction, if so desired. At no time may the parent or guardian of a minor be denied access to their minor child or to a class. 11. TRANSPORTING OF MINOR PARTICIPANTS 11.1 Unless the Work specifically involves travel or transportation of minors to an offsite location, Contractor or its Representatives, shall not transport any minor participant by vehicle or otherwise. 11.2 If, after the conclusion of any class session, a minor participant has not been picked up, Contractor shall make every effort to contact the minor's parent, legal guardian, or other authorized individual to whom the minor may be released. If no contact can be Newport Bay Naturalists and Friends DBA Newport Bay Conservancy Page 5 made with any of the above individuals, Contractor shall contact the City Recreation Supervisor or Recreation Manager at the Recreation & Senior Services Office at (949) 644-3151 (Monday through Friday, 8 a.m. to 5 p.m.), or the Park Patrol Division at (949) 795-2381 (Monday through Friday, 5 p.m. to 9 p.m. and Saturday and Sunday, 9 a.m. to 5 p.m.). During all other hours, Contractor shall contact the Newport Beach Police Department Dispatch number for assistance at (949) 644-3717. 12. 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 Contractor, shall remain the property of City. Contractor shall not release such information to others without the prior written authorization by City. Contractor 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 Contractor solely for administration of classes and performing City business. Contractor shall take reasonable steps consistent with the law to prevent distribution of such information. 13. USE OF NAMES AND LOGOS; ADVERTISING, PRESS RELEASES AND PUBLICITY Contractor shall not include City's name, seal, logos or insignia, or photographs of the class site or participants, in any publicity pertaining to Contractor's services or class 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. 14. BUSINESS LICENSE Newport Beach Municipal Code Chapter 5.04 provides that every business operating in City must obtain a business license prior to conducting business in City and pay the required business license tax. The City business license tax is an annual fee due every twelve (12) months. Contractor agrees to obtain a City business license as required by Chapter 5.04 and provide proof of compliance annually. Business license applications are available in the Revenue Division Office at Newport Beach City Hall. In certain circumstances, Contractor may be eligible to pay a reduced business license tax, which is known as an "apportioned business tax". A Declaration for Apportioned Business Tax is available in the Revenue Division Office at City Hall. 15. INDEMNIFICATION 15.1 To the fullest extent permitted by law, Contractor shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, employees and any person or entity owning or otherwise in legal control of the property upon which Contractor performs the Project and/or Services contemplated by this Agreement (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, Newport Bay Naturalists and Friends DBA Newport Bay Conservancy Page 6 a Claim; collectively, "Claims"), and which may arise from or in any manner relate (directly or indirectly) to any breach the negligence, recklessness, or willful misconduct 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 Contractor's presence or activities conducted (including the negligent, reckless, and/or willful acts, errors and/or omissions of Contractor, its principals, officers, agents, employees, vendors, suppliers, subconsultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable, or any or all of them). 15.2 Notwithstanding the foregoing, nothing herein shall be construed to require Contractor to indemnify the Indemnified Parties from any Claim arising from the sole negligence, active 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 the Contractor. 15.3 Contractor 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 Contractor of the displayed, or written or digital materials provided by Contractor and used during the performance of this Agreement. Such legally protected rights of third parties include, but are not limited to, name and likeness, trade secrets, moral rights, proprietary acts, U.S. patents, trademarks, service marks and copyrights vested or issued. If Contractor will be providing a public performance of musical compositions or arrangements that are subject to a license held by a third party, it is the responsibility of Contractor to obtain the appropriate license to perform the material prior to the public performance. 16. TERMINATION 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. Notwithstanding the above provisions, City shall have the right, at its sole and absolute discretion and without cause, of terminating this Agreement at any time by giving no less than seven (7) calendar days' prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for Services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver Newport Bay Naturalists and Friends DBA Newport Bay Conservancy Page 7 to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 17. CLAIMS Unless a shorter time is specified elsewhere in this Agreement, before making its final request for payment under the Agreement, Contractor shall submit to City in writing, all claims for compensation under or arising out of this Agreement. Contractor'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 Contractor in writing as unsettled at the time of its final request for payment. Contractor and City expressly agree that in addition to all claims filing requirements set forth in the Agreement, Contractor shall be required to file any claim Contractor may have against City in strict conformance with the Government Claims Act (California Govt. Code §§ 900 et seq.). 18. TERMINATION OF PRIOR AGREEMENT As of the Effective Date of this Agreement, the Prior Agreement between the parties hereto, dated January 28, 2020, for Contractor to assist in the administration, operation and supervision of the FiiN program, is terminated. 19. 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 Contractor, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Contractor is a partnership or joint -venture or syndicate or co -tenancy, which shall result in changing the control of Contractor. 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. 20. WITHHOLDINGS City may withhold payment to Contractor 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. Contractor shall not discontinue Work as a result of such withholding. Contractor shall have an immediate right to appeal to the City Manager or designee with respect to such disputed sums. Contractor 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. 21. CONFLICT OF INTEREST Contractor or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act") and/or Government Code §§ 1090 et seq., which Newport Bay Naturalists and Friends DBA Newport Bay Conservancy Page 8 (1) require such persons to disclose any financial interest that may foreseeably be materially affected by the Work performed under this Agreement, and (2) prohibit such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act and/or Government Code §§ 1090 et seq., Contractor shall conform to all requirements therein. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Contractor shall indemnify and hold harmless City for any and all claims for damages resulting from Contractor's violation of this Section. 22. STANDARD PROVISIONS 22.1 Cooperation. Contractor 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 Contractor so that Contractor may perform the Work. 22.2 City Policy. Contractor 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 Work proceeds in a manner consistent with City goals and policies. 22.3 Progress. Contractor is responsible for keeping the Project Administrator informed on a regular basis regarding the status and progress of the Work, activities performed and planned, and any meetings that have been scheduled or are desired. 22.4 Compliance with all Laws. Contractor 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. 22.5 Waiver. A waiver by City 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. 22.6 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. 22.7 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. 22.8 Amendments. This Agreement may be modified or amended only by a written document executed by both Contractor and City and approved as to form by the City Attorney. 22.9 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 Newport Bay Naturalists and Friends DBA Newport Bay Conservancy Page 9 Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of California. 22.10 Equal Opportunity Employment. Contractor 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. 22.11 City's Right to Employ Other Contractors. City reserves the right to employ other Contractors in connection with the Services. 22.12 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. 22.13 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. 22.14 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. 22.15 Survival. Sections 12, 13, 15, 17, 18, and 21 shall survive the termination or expiration of this Agreement. 22.16 Counterparts. This Agreement may be executed in two 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 Naturalists and Friends DBA Newport Bay Conservancy Page 10 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date:_T Z3 : BY A r n C. Harp City Attorney ATTEST: CITY OF NEWPORT BEACH, a California munici al corporation Date: ayor CONTRACTOR: NEWPORT BAY NATURALISTS AND FRIENDS DBA NEWPORT BAY CONSERVANCY, a California nonprofit corporation Date: BrownBy: A N-9 By: City Clerk Signed in Counterpart Cassandra Radcliff Chief Executive Officer Date: Signed in Counterpart Susie Onate Secretary [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B -- Schedule of Billing Rates Exhibit C — Representative Approval Form Exhibit D -- Insurance Information Newport Bay Naturalists and Friends DBA Newport Bay Conservancy Page 11 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: V q /2-S By: Z' h, U Harp City Attorney ATTEST: Date: CITY OF NEWPORT BEACH, a California municipal corporation Date: Bv: Noah Blom Mayor CONTRACTOR: NEWPORT BAY NATURALISTS AND FRIENDS DBA NEWPORT BAY CONSERVANCY, a California no prof . corporation 4Date: 2 By: By: a��L & 10 Leilani 1. Brown Cassandra Radcliff ' U/1/ City Clerk Chief Executive Officer Date: 9 / S i �� 3 By: Su bn-a ecretary [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B -- Schedule of Billing Rates Exhibit C — Representative Approval Form Exhibit D — Insurance Information Newport Bay Naturalists and Friends DBA Newport Bay Conservancy Page 11 EXHIBIT A SCOPE OF SERVICES/ADDITIONAL TERMS & CONDITIONS 1. FOSTERING INTEREST IN NATURE (FiiN) PROGRAM STRUCTURE: • Program Season: Mid -September through the 10th consecutive Friday following the start date. 2023 Example: September 11, 2023 through December 1, 2023, Monday through Friday for ten (10) weeks. Future program dates to be determined. • Program Sessions: Season shall consist of up to Sixteen (16) Program sessions; two program sessions per week over a period of up to ten (10) weeks. • Program Session Duration: A Program session begins on Monday morning and ends on Wednesday afternoon or begins on Wednesday morning and ends of Friday afternoon. • Program Day Duration: Program days will begin and end at a reasonable hour each day in order to accommodate staffing and facility needs. On Monday and Wednesday, camp shall begin at 10:00 a.m. On Wednesday afternoon and Friday, camp shall end no later than 1:00 p.m. Contractor's staff will be present for the duration of all three (2) nights of the overnight component of each Program session. • Program Schedule: Activities, meals, and the start and end of each day shall follow the attached sample program schedule; times and days may change. • Participants: Program shall accommodate up to forty-two (42) students enrolled in a Title I school, as defined by the Elementary and Secondary Education Act ("ESEA") of 1965, and at least one (1) teacher, meeting a minimum 1:8 ratio of Contractor's staff to participants. Program shall not exceed seven hundred (700) students over the duration of the Program season. • Facilities: A map indicating the location of City facilities hosting FiiN activities is hereby attached to this Scope of Services. o Big Canyon Nature Preserve o Back Bay Science Center o Back Bay Bistro o Newport Dunes/Camp James (FiiN Base Camp) Newport Bay Naturalists and Friends DBA Newport Bay Conservancy Page A-1 2. CONTRACTOR'S RESPONSIBILITIES/PROVISIONS: Contractor shall assist in the administration, operation and supervision of the City of Newport Beach, Recreation and Senior Services Department's FiiN program. Administration • Contractor's Program Manager shall cooperate fully with the program, including meeting with City's Project Administrator or his/her designees when requested, modifying operations and/or supervision when in the interests of the Program, fulfilling additional requirements from school districts that are participating in the program and maintaining an open and regular dialogue with the City and the Project Administrator or his or her designee regarding Program matters. • Contractor may solicit sponsorships or donations directly related to the purpose of program support. All sponsorships and donations must be processed and approved by the Project Administrator or designee. • Contractor shall provide documentation to the Project Administrator or his/her designees when requested, outlining program standards, policy and procedures as it relates to their responsibilities. • Contractor may provide relevant take home items relevant to the FiiN program. Item must include the FiiN logo and logos of all program partners and, if applicable, program sponsors. Item and design must be pre -approved by the Project Administrator or designee. • Contractor and/or its representatives are authorized to access the Back Bay Science Center Complex ("BBSC Complex") and conduct the Program as an "Operating Partner" under the Back Bay Science Center Complex Operating Agreement dated February 26, 2008, between City and the California Department of Fish and Game, who are parties to the Operating Agreement. Contractor and/or its Representatives, as an acting Operating Partner, is permitted to use the City's designated office space during the Program and outside of approved Program hours. Contractor and/or its representatives, shall not, represent the City as an Operating Partner for the Programs Working Group or Facilities Working Group, as defined in the Operating Agreement. Educational Programming and Base Camp Operations • Contractor's Program Manager and/or designated representative(s) are responsible for development of the program curriculum and shall focus on coastal and marine ecology water -oriented activities such as kayaking, boating, and swimming, ocean safety, coastal hazards, and/or other coastal related topics. The evening/overnight program curriculum shall focus on hygiene, sleeping preparation and supervision, campfire programs, award ceremonies and/or other related topics. Newport Bay Naturalists and Friends DBA Newport Bay Conservancy Page A-2 • Contractor's Program Manager and/or designated representative(s) shall submit Program curriculum and tentative activities outline to the City for review and approval sixty (60) days prior to the start of the camp season. • Contractor's Program Manager and/or designated representative(s) are responsible for setting up and disassembling of City -provided Program equipment including but not limited to: temporary sleeping structures, cots, sleeping bags, pillows, blankets, and safety equipment. City -provided Program equipment must be set up prior to the start of each Program session. • Contractor's Program Manager and/or designated representative(s) are responsible for oversight and facilitation during each camp session of the following program elements: o Overseeing welcome activities (Mondays and Wednesdays); o Educational programming and activities (daily); o Distributing meals (daily); o Escorting and transitioning participants to and from camp operations staff (daily); o Logistics and supervision of Program's overnight component including but not limited to sleeping arrangements, personal belongings, quiet hours, behavior, and general safety (daily); o Logistics and supervision of personal hygiene activities including but not limited to showering, bathroom use, brushing teeth, health and cleanliness, appropriate behavior, and general safety use (daily); and o Overseeing departure and cleanup activities (Wednesdays & Fridays). Contractor will also be responsible for assisting City in setting up camp prior to the first week of programming, during the transition between each session and breaking down camp prior to the final program week. This includes, but is not limited to; tent set up and breakdown, cot set up and breakdown, facility cleaning (sweeping, trash pickup), and removal of other program supplies that do not belong on property. Supervision Contractor's Program Manager and/or designated representative(s) are responsible for the hiring, scheduling, supervision, and evaluation of a Volunteer Coordinator, an Education Manager, Activity Leaders, and volunteers who: o Are adequately trained and knowledgeable with regards to coastal and estuarine ecosystems, environmental conservation and stewardship and natural environments. o Are adequately trained, knowledgeable, and physically able to lead and supervise outdoor activities such as hiking, orienteering and observing wildlife. Newport Bay Naturalists and Friends DBA Newport Bay Conservancy Page A-3 o Are adequately trained, knowledgeable, and physically able to lead, supervise, and provide certified lifeguard safety services for water related activities such as kayaking, boating and swimming, if programmed. o Are adequately trained, knowledgeable, and physically able to lead and supervise educational or camp related activities. o Shall competently maintain a safe and educational environment in accordance with City rules and regulations, School rules and regulations and all other policies or procedures governing youth programs. o Are adequately trained and knowledgeable with regards to behavior management, discipline, and physical and emotional safety (i.e. bullying) of youth. o Are adequately trained and knowledgeable with regards to youth programming and structured and unstructured supervision. o Are adequately trained, knowledgeable and physically able to lead, and implement camp -related activities and assistance to support camp operation • Contractor's Program Manager and/or designated representative(s) shall report and provide the City with an assessment in written form of any Activity Leaders, Overnight Staff, Volunteer Naturalists, or participant related accident or incident, within twenty-four (24) hours following the accident or incident in question. Contractor shall provide City's Project Administrator with access to schedule of Contractor's naturalists and staff as assigned prior to the start of each Program session; must include names, addresses and phone numbers for all Activity Leaders, Overnight Staff, and Volunteer Naturalists working under Contractor's employment. Contractor shall schedule a minimum of four (4) Activity Leaders to administer educational programming and activities for the duration of the camp curriculum for the day. Contractor may also schedule volunteer naturalists to fulfill the program ratio of one (1) staff to eight (8) students. Contractor may schedule additional Activity Leaders when program size exceeds thirty two (32) participants and Volunteer Naturalists are unavailable. Contractor shall not be compensated for staffing that unnecessarily exceeds the Program's staff to student ratio. • The 1:8 ratio must be maintained for the evening/overnight portion of the program, with Contractor providing enough staff to adequately supervise the gender -specific tent/sleeping arrangements (e.g. there must be enough female Newport Bay Naturalists and Friends DBA Newport Bay Conservancy Page A-4 overnight staff to adequately supervise the female tents under a 1:8 ratio and enough male overnight staff to adequately supervise the male tents under the 1:8 ration). • Contractor's Program Manager shall notify the City's Project Administrator or his or her designee of any problems or changes in Contractor's assignments of Activity Leaders, Overnight Staff, and Volunteer Naturalists due to causes within Contractor's reasonable control no later than twenty-four (24) hours prior to each scheduled educational activity. When this notice is not possible, Contractor's Program Manager agrees to notify the City's Program Administrator or his or her designee immediately. • Contractor's Program Manager and/or designated representative(s) shall provide the City with an annual evaluation report, upon request, of all assigned Activity Leaders, Overnight Staff, and Volunteer Naturalists, including the evaluation process, training procedures and certification requirements. 3. CITY RESPONSIBILITIES/PROVISIONS Camp Administration • City shall provide administrative oversight for overall planning and implementation of the Program, including all permits, approvals, and annual reports for the Program. • City shall provide a comprehensive document to Contractor that outlines responsibilities, standards, policies, and procedures of all participating entities as it relates to the Program. • City shall provide all promotional materials related to marketing and branding the program including but not limited to design of Program logo, flyers, website, social media content, sponsorship, and donation packet, etc. • City shall schedule and register no more than seven hundred (700) disadvantaged youth from Title 1 schools, as defined in the Elementary and Secondary Education Act (ESEA), during the Program. • City shall be responsible for creating and providing Program document including but not limited to accident and incident forms, Program packing list, and program waiver of liability. Camp Operations • City shall coordinate transportation logistics to program start location and transportation from program location end with participating school district staff. • City shall be responsible for purchasing and coordinating any transportation for scheduled activities during the program. • City shall be responsible for purchasing and coordinating all meals and their delivery to site locations for the duration of the program. Newport Bay Naturalists and Friends DBA Newport Bay Conservancy Page A-5 • City shall be responsible for purchasing and coordinating access and reservations to facilities including but not limited to showers, meeting rooms, and educational facilities. • City shall provide and when necessary, repair, clean and replace the following equipment: o Tents; o Cots and bedding materials; o Safety equipment; o Sleeping pads; and o Spare items from the participant packing list (towels, pillows, toiletries, etc.) • City shall coordinate and remove all City -provided equipment from the FiiN Base Camp after the last Program session once equipment has been disassembled by the Contractor's Program Manager and/or designated representative(s). • City shall not be responsible for any equipment or supplies purchased or owned by Contractor. City shall not be responsible for repairing, cleaning or replacing any equipment or supplies that are broken, damaged or misused during educational activities and Programs. 4. FiiN TENTATIVE PROGRAM SCHEDULE Session A Session B Time Activity Monday Wednesday 8:OOAM set-up: tents/beds, promo packs, materials, name tags, etc Monday Wednesday 9:30 AM bus arrives, unpack, break into groups Monday Wednesday 10:00 AM Tour, groups- team bonding with Activity Leaders, rules & expectations Monday Wednesday 11:00 AM Intro to Newport Bay program in groups Monday Wednesday 12:00 PM Box lunch, downtime, set up tents and unpack. Get promo packs. Monday Wednesday 1:00 PM Intro to Photography OR journaling techniques - Distribute Cameras. Monday Wednesday 2:00 PM Walk to Big Canyon Monday Wednesday 2:30 PM Mammals- Tracks/pelts/scat Monday Wednesday 3:00 PM Plants Monday Wednesday 3:30 PM Birds Monday Wednesday 4:00 PM Native Americans Monday Wednesday 4:30 PM Walk back to Bistro for Dinner Monday Wednesday 5:00 PM Back Bay Bistro Dinner Monday Wednesday 6:00 PM Nature at Night Monday Wednesday 7:00 PM Tent Time Monday Wednesday 8:00 PM Camp Fire program Monday Wednesday 9:00 PM Bed Time, quiet by 10pm Newport Bay Naturalists and Friends DBA Newport Bay Conservancy Page A-6 Monday Wednesday 10:00 PM- 12:00 PM Sleeping (2 hrs) Tuesday Thursday 12:00 AM- 7:00 AM Sleeping (7 hrs) 7am-7:30- Activity Leader showers Tuesday Thursday 7:30 AM Wake-up, Showers, get dressed Tuesday Thursday 8:30AM Breakfast at Bistro- Hot breakfast Tuesday Thursday 9:OOAM Walk to Back Bay Science Center Tuesday Thursday 9:30 AM Intro to Marine Mammals- BBSC Classroom Tuesday Thursday 10:OOAM Cool Breeze Harbor Cruise Tuesday Thursday 12:00 PM Arrive back from cruise, box lunch at BBSC Tuesday Thursday 12:30 PM Marine Lab at BBSC Tuesday Thursday 1:30 PM Plankton Tuesday Thursday 2:00 PM Water Quality Tuesday Thursday 2:30 PM Pollution Tuesday Thursday 3:00 PM Touch Tanks Tuesday Thursday 3:30 PM Movie and worksheets- Racing Extinction Tuesday Thursday 5:00 PM Dinner at Bistro Tuesday Thursday 6:00 PM Nature at Night Tuesday Thursday 7:00 PM Tent Time Tuesday Thursday 8:00 PM Campfire Program Tuesday Thursday 9:00 PM Bed Time, quiet by 10pm Tuesday Thursday 10:00 PM- 12:00 AM Sleeping (2 hrs) Wednesday Friday 12:00 AM- 7:00AM Sleeping (7 hrs) 7am-7:30- Activity Leader showers Wednesday Friday 7:30 AM Wake-up, Showers, get dressed Wednesday Friday 8:30 AM Breakfast at Bistro- BIG hot breakfast Wednesday Friday 9:30 AM Load Bus Wednesday Friday 10:00 AM Kayaking/Beach Games Wednesday Friday 11:00 AM Kayaking/Beach Games Wednesday Friday 12:00 PM Bus departs- back to school Wednesday Friday 12:00 PM- 1:00 PM VOLUNTEER Staff meeting, issues/concerns/needs/acknowledgement 5. SUMMARY • Contractor shall be responsible for continuous camp oversight from 9:00 a.m. on Monday to 1:00 p.m. on Friday during each week of programming, for up to ten (10) consecutive weeks. • Newport Dunes shall be responsible for facilitating thirteen (13)meals including breakfast (8:00 a.m. to 9:00 a.m.), lunch (12:00 p.m. to 1:00 p.m.), and dinner (5:30 p.m. to 6:30 p.m.) daily, pursuant to a separate Memorandum of Understanding entered into concurrently herewith between the City and Newport Dunes. • City shall be responsible for managing communication with school/students. Newport Bay Naturalists and Friends DBA Newport Bay Conservancy Page A-7 FUN SITE MAP: Newport Bay Naturalists and Friends DBA Newport Bay Conservancy Page A-8 EXHIBIT B SCHEDULE OF BILLING RATES FINANCIAL AND PAYMENT TERMS: Compensation for services is set forth below by the City and the Contractor shall be compensated under the following terms: STAFFING Year 1 Operations Director: $44.00 per hour Volunteer Coordinator: $28.00 per hour Education Manager: $26.00 per hour Activity Leader: $17.00 per hour Year 2 Operations Director: $46.00 per hour Volunteer Coordinator: $29.00 per hour Education Manager: $27.00 per hour Activity Leader: $18.00 per hour Year 3 Operations Director: $48.00 per hour Volunteer Coordinator: $30.00 per hour Education Manager: $28.00 per hour Activity Leader: $19.00 per hour Year 4 Operations Director: $50.00 per hour Volunteer Coordinator: $31.50 per hour Education Manager: $29.50 per hour Activity Leader: $20.00 per hour Year 5 Operations Director: $52.50 per hour Volunteer Coordinator: $33.00 per hour Education Manager: $31.00 per hour Activity Leader: $21.00 per hour Newport Bay Naturalists and Friends DBA Newport Bay Conservancy Page B-1 OTHER Volunteer and staff Not to exceed $2,000 fingerprinting: annually. Training and Not to exceed $3,000 Orientation: annually. Educational supplies: $7,000 annually. TOTAL COST Year One Total Cost: Not to Exceed $125,913.65 Year Two Total Cost: Not to Exceed $132,135.20 Year Three Total Cost: Not to Exceed $138,636.75 Year Four Total Cost: Not to Exceed $144,790.80 Year Five Total Cost: Not to Exceed $151,296.60 Contract Total Cost (5 Year): Not to Exceed $692,500.00 Newport Bay Naturalists and Friends DBA Newport Bay Conservancy Page B-2 EXHIBIT C REPRESENTATIVE APPROVAL FORM PLEASE PRINT LEGIBLY CONTRACTOR NAME: REPRESENTATIVE: NAME: ADDRESS: CITY, STATE ZIP: DATE OF BIRTH: PHONE# EMAIL: SIGNATURE OF REPRESENTATIVE: DATE CONTRACT #: FINGERPRINTS: YES CITY USE ONLY No BACKGROUND: YES NO CLEARED CLEARED TO YES NO WORK PHOTO TAKEN: YES No CONTRACTOR YES NO NOTIFIED BY EMAIL Newport Bay Naturalists and Friends DBA Newport Bay Conservancy Page C-1 EXHIBIT D INSURANCE REQUIREMENTS — INDEPENDENT CONTRACTOR FOR RECREATION AND SENIOR SERVICES 1. Provision of Insurance. Without limiting Contractor's indemnification of City, and prior to commencement of Work, Contractor 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. Contractor agrees to provide insurance in accordance with requirements set forth here. If Contractor uses existing coverage to comply and that coverage does not meet these requirements, Contractor 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. Contractor 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. Contractor 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. Contractor 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 two million dollars ($2,000,000) per occurrence,. If an aggregate limit applies, either the aggregate limit shall apply separately to each occurrence or the aggregate limit shall be twice the required occurrence limit specified herein. The policy shall cover liability arising from premises, operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract). C. Automobile Liability Insurance. Contractor 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 Contractor arising out of or in connection with Work to be performed under this Newport Bay Naturalists and Friends DBA Newport Bay Conservancy Page D-1 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. D. Professional Liability (Errors & Omissions) Insurance. Contractor 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 two million dollars ($2,000,000) in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the Effective Date of this Agreement and Contractor agrees to maintain continuous coverage through a period no less than three years after completion of the Services required by this Agreement. E. 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 $1,000,000 per occurrence and $3,000,000 in the aggregate. 4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: A. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its City Council, boards and commissions, officers, agents, volunteers and employees or shall specifically allow Contractor or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Contractor hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its subcontractors. B. Additional Insured Status. All liability policies including general liability, excess liability, pollution liability, and automobile liability, if required, but not including professional liability, shall provide or be endorsed to provide that City, its City Council, boards and commissions, officers, agents, volunteers and employees shall be included as insureds under such policies. C. Primary and Non Contributory. All liability coverage shall apply on a primary basis and shall not require contribution from any insurance or self-insurance maintained by City. D. Notice of Cancellation. All policies shall provide City with thirty (30) calendar days' notice of cancellation (except for nonpayment for which ten (10) calendar days' notice is required) or nonrenewal of coverage for each required coverage. 5. Additional Agreements Between the Parties. The parties hereby agree to the following: Newport Bay Naturalists and Friends DBA Newport Bay Conservancy Page D-2 A. Evidence of Insurance. Contractor shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation and other endorsements as specified herein for each coverage. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least fifteen (15) days prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or reduced, Contractor 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 Contractor sixty (60) calendar days' advance written notice of such change. If such change results in substantial additional cost to Contractor, City and Contractor may renegotiate Contractor's compensation. C. Right to Review Subcontracts. Contractor agrees that upon request, all agreements with subcontractors or others with whom Contractor 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. Contractor shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Contractor 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. Contractor acknowledges and agrees that any actual or alleged failure on the part of City to inform Contractor of non-compliance with any requirement imposes no additional obligations on City nor does it waive any rights hereunder. E. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of Newport Bay Naturalists and Friends DBA Newport Bay Conservancy Page D-3 other coverage, or a waiver of any type. If the Contractor maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for higher limits maintained by the Contractor. 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 Contractor or any subcontractors 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 Contractor'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 Contractor or reimbursed by Contractor upon demand. H. 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 Agreement, and that involve or may involve coverage under any of the required liability policies. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. Contractor's Insurance. Contractor shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Work. Newport Bay Naturalists and Friends DBA Newport Bay Conservancy Page D-4 Name: Account Number AdlJress- Status Newport Bay Conservancy A FVOOGID0922 600C Shellmaker Road, Newport Beach, CA, 92660 Compliant with Waived Deficiencies.