Loading...
HomeMy WebLinkAbout13 - Underground Assessment District 95CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 13 April 13, 2004 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Public Works Department Patrick Arciniega, Associate Engineer 949 - 644 -3311 parciniega@city.newport-beach.ca.us SUBJECT: REQUEST FOR FUNDING FOR PROPOSED UNDERGROUND ASSESSMENT DISTRICT NO. 95 (AREA BOUNDED BY: L STREET, BALBOA AVENUE, CHANNEL ROAD, AND OCEAN BOULEVARD) RECOMMENDATION: Appropriate $19,290.00 for assessment engineering services of proposed Assessment District No. 95 (Area bounded by: L Street, Balboa Avenue, Channel Road, and Ocean Boulevard). The District's preliminary formation and design funding is advanced from General Fund reserves unless the District is approved and formed by voting property owners in which case the District is wholly funded by property owner contributions. DISCUSSION: The property owners of Proposed Underground Assessment District No. 95 have submitted petitions to the City requesting a special Assessment District be formed to finance and underground overhead utilities. The boundaries of the proposed District are shown on Exhibit "A ". One of the initial steps in the District formation process is the circulation of the Petition for Special Assessment Proceedings. Proponents of the District circulated a petition to the property owners and have submitted the signed petition to the City. The submitted signatures represent approximately 65 percent (65 %) of the assessable area within the proposed District. The City's guidelines require a minimum of 60 percent (60 %) in favor of the District in order to proceed with the formation of a District. In anticipation that the District would move forward, staff called for proposals from qualified firms to provide assessment engineering services. Staff negotiated a not to exceed fee of $19,290.00 for services with the firm Hall & Foreman, Inc. A Professional Services Agreement with Hall & Foreman, Inc. was entered into on March 2, 2004. The assessment engineering services to be provided by Hall & Foreman, Inc. are detailed in the attached Professional Services Agreement and include identifying, analyzing, and determining the correct apportionment of costs in addition to preparing the Assessment SUBJECT: Request For Funding For Proposed Underground Assessment District No. 95 (Area bounded by: L Street, Balboa Boulevard, Channel Road, and Ocean Boulevard) April 13, 2004 Page 2 Engineer's Report. Hall & Foreman, Inc. will also prepare the voting ballots in accordance with the requirements of Proposition 218. The ballots are weighted by "financial obligation" (the amount of the property's assessment). The District formation proceedings are pursuant to the "Municipal Improvement Act of 1913" (Division 12 of the Streets and Highways Code of the State of California). Bonds will be sold pursuant to the "Improvement Bond Act of 1915," Division 10 of said Code. Environmental Review: This project qualifies for a Class 2 California Environmental Quality Act (CEQA) exemption under Section 15302, item "d" of the Implementing Guidelines as follows: "Conversion of overhead electric utility distribution system facilities to underground including connection to existing overhead electric utility distribution lines where the surface is restored to the condition existing prior to the undergrounding." Public Notice: Not Applicable at this time. Funding Availability: Upon approval of the recommended Budget Amendment, sufficient funds are available in the following account: Description Account No. Amount 74095 -9812 Assessment District No. 95 $19,290.00 Prepared by: Submitted by: Patrick L. Ar niega ¢hen G. �dum Associate Engineer �blic Works Director Attachments: Exhibit "A ", Boundary Map of Proposed District PSA — Hall & Foreman Inc. Budget Amendment \J 0 w� UU a� o� v, ao LL OZ w Qw 0U Z W Z) Ln O O7 mQ SOLZ LOLZ l� 644 L40Z i F Me O v7 a w •lsoz t-- IiSZOZ 1 / ♦i\ &I I SL 2/ 22g1 2149 2150 2155 N 2145 2145 2155 � cetZ a ZeIZ eelZ EZLZ 9ZLZ 6ZLZ ball ��ir LLLZ OZLZ j LZLZ cJ LLLZ s[LZ } LZ Lott ZL Zt Z 2 tZ C L P Q C�7 CO LZ Otte Elie LOLZ bOLZ bole I OOe> SOLI 13361S W \7 Lo[z a Q sbo 133�1S ZboZ seoZ . t'EOZ acoe 9a0a ZZOZ O (O 'Q I N N Z t0 'Q N O O O W I ED( O tale .LLZ LLLZ / )z Z ELLZ f s6EO� J Q O v Z 2 ° LEOZ D w U) U7 Z 1 U J O F ~ Q W ar v7�0-0� °a J n0. W O 0 O eeoZ 3nN3nV 3s ae l ZboZ seoZ . t'EOZ acoe 9a0a ZZOZ O (O 'Q I N N 161 t0 'Q N O O O O I O O tale .LLZ LLLZ / )z Z ELLZ f U J Q W Z 2 W m 0 CO Q m 0 w D w U) U7 Z 1 U J O F ~ Q W ar v7�0-0� °a J n0. W O !0-- INC < t _I I/ c O m V N O [0.1014 N 6I O O O 10 O LOOZ °n M n n �i n�n�n n w w w 1°n w ry SO( L00 133615 —_ l \\ �z F��� bELZ tbta DELZ 'Eta szlZ EEtZ } 6ZLZ 42tZ � OZLZ O SZLZ -911- tale .LLZ LLLZ / )z Z ELLZ f 2291 KiSM I 09LZ 9Sle Me �b[L 1 Ze[Z' BZLZ 1 bat, Oat, 1 etie / 0 Z[ta m t olle < tole °p!Z W °9Oa 9s0Z Zsoe OSOZ ,'POZ 1 opoe / 9Eoe / 9Z °Z bZ02 OZoZ 9toZ t� 8 \Z OZ OOOZ J m wW U O p Z Ci )z Z U J Q W Z 2 W m 0 CO Q m 0 w D w U) U7 Z 1 U J O F ~ Q W m w J a0 J n0. W O 0 O :Q•o Q t- m_ 2 x W PROFESSIONAL SERVICES AGREEMENT WITH HALL & FOREMAN, INC. FOR CONSULTING SERVICES IN CONNECTION WITH FORMATION OF UNDERGROUND UTILITIES ASSESSMENT DISTRICT NO. 95 THIS AGREEMENT is made and entered into as of this day o7 A rC &— 2004, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "), and HALL & FOREMAN, INC. a corporation whose address is 420 Exchange, Suite 100, Irvine, California, 92602 -1301 ( "Consultant'), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City is planning to establish a Rule -B Underground Utility Assessment District No. 95 for the City of Newport Beach in accordance with Proposition 218 requirements, as described in Exhibit A. C. City desires to engage Consultant to assist the City in the formation of the proposed Assessment District No. 95 including the preparation of a Preliminary Engineer's Report, execution of a ballot vote in accordance with Proposition 218, • preparation of a Final Engineer's Report, and District Formation, as described more fully in Exhibit A ('Project "). D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal members of Consultant for purposes of Project shall be Deborah Cobb (Project Manager /Daily Point of Contact), Jon E. Bourgeois, P.E. (Assessment Engineer), and Cheryl Martinez (Analyst). F. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the,�"`fday of ` " 1 2004, and shall terminate on the 24th day of February, 2007, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference. The City may elect to delete certain tasks of the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and the services shall be performed to completion in a diligent and timely manner. The failure by Consultant to perform the services in a diligent and timely manner may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 3.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by either telephone, fax, hand - delivery or mail. 3.3 The parties agree that it is extremely difficult and impractical to determine and fix the actual damages that City will sustain should the Consultant fail to complete the work called for in this Agreement. Should Consultant fail to complete the work called for in this Agreement, Consultant agrees to the deduction of actual and reasonable damages. 4. COMPENSATION TO CONSULTANT City shall pay Consultant for the services on a time and expense not -to- exceed basis in accordance with the provisions of this Section and the Fee Schedule attached hereto as Exhibit B and incorporated herein by reference. In no event shall Consultant's compensation exceed Nineteen Thousand Two - Hundred Ninety Dollars and no /100 ($19,290.00) without additional authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.1 Consultant shall submit monthly invoices to City describing the work performed the preceding month. Consultant's bills shall include the name 9 61 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 Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in advance by City. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Fee Schedule as set forth in Exhibit B. PROJECT MANAGER Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated Deborah Cobb to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 3 If Consultant is performing inspection or construction management services for City, the Project Manager and any other assigned staff shall be equipped with a Nextel Plus type cellular /direct connect unit to communicate with City staff. Consultant's Nextel Direct Connect I.D. number will be provided to City to be programmed into City Nextel units, and vice versa. 6. ADMINISTRATION This Agreement will be administered by the Public Works Department. Patrick Arciniega shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his /her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: A. Provide access to, and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. B. Provide blueprinting and other services through City's reproduction company for bid documents. Consultant will be required to coordinate the required bid documents with City's reproduction company. All other reproduction will be the responsibility of Consultant and as defined above. C. Provide usable life of facilities criteria and information with regards to new facilities or facilities to be rehabilitated. 8. STANDARD OF CARE 8.1 All of the services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the services required by this Agreement, and that it will perform all services in a manner commensurate with community professional standards. All services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. 8.2 Consultant represents and warrants to City that it has or shall obtain all licenses, permits, qualifications, insurance and approvals of whatsoever nature that are legally required of Consultant to practice its profession. Consultant further represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any and all licenses, permits, insurance and other 9 approvals that are legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 8.4 The term Construction Management or Construction Manager does not imply that Consultant is engaged in any aspect of the physical work of construction contracting. Consultant shall not have control over or be in charge of and shall not be responsible for the project's design, City's project contractor ( "Contractor"), construction means, methods, techniques, sequences or procedures, or for any health or safety precautions and programs in connection with the work. These duties are and shall remain the sole responsibility of the Contractor. Consultant shall not be responsible for the Contractors' schedules or failure to carry out the work in accordance with the contract documents. Consultant shall not have control over or be responsible for acts or omissions of City, Design Engineer, Contractor, Subcontractors, or their Agents or employees, or of any other persons performing portions of the work. 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents 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, reasonable 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 work negligently performed or services provided under this Agreement (including, without limitation, defects in workmanship or materials and /or design defects [if the design originated with Consultant]) or Consultant's presence or activities conducted on the Project (including the negligent and /or willful acts, errors and /or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the participatory active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of I attorney's 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 Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the services. 11. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the work to be performed. City agrees to cooperate with the Consultant on the Project. 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator and /or his /her duly authorized designee informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and ,prior to commencement of work Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. F A. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by • City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. B. Si nature. A person -authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. 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, D. Coverage Requirements. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. In addition, Consultant shall require each subcontractor to similarly maintain Workers' Compensation • Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. ii. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice "the required occurrence limit. iii. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with . work to be performed under this Agreement, including coverage for 7 any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each occurrence. iv. Professional Errors and Omissions insurance. Consultant shall maintain professional errors and omissions insurance, which covers the services to be performed in connection with this Agreement in the minimum amount of one million dollars ($1,000,000). E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: i. The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Consultant. ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Consultant's operations or services provided to City. Any insurance maintained by City, including any self- insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days written notice has been received by City. F. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. . G. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own I judgment may be necessary for its proper protection and prosecution of the work. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS 0 Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more of the assets of the corporation, partnership or joint- venture. 16. SUBCONTRACTING The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of City. Consultant shall not subcontract any portion of the work to be performed under this Agreement without the prior written authorization of City. 17. OWNERSHIP OF DOCUMENTS i Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents °), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant' s expense, provide such Documents to City upon prior written request. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 9 9 18. COMPUTER DELIVERABLES CADD data delivered to City shall include the professional stamp of the engineer or architect in charge of or responsible for the work. City agrees that Consultant shall not be liable for claims, liabilities or losses arising out of, or connected with (a) the modification or misuse by City, or anyone authorized by City, of CADD data; (b) the decline of accuracy or readability of CADD data due to inappropriate storage conditions or duration; or (c) any use by City, or anyone authorized by City, of CADD data for additions to this Project, for the completion of this Project by others, or for any other Project, excepting only such use as is authorized, in writing, by Consultant. By acceptance of CADD data, City agrees to indemnify Consultant for damages and liability resulting from the modification or misuse of such CADD data. All original drawings shall be submitted to City in the version of AutoCAD used by City in ".dwg" file format on a CD, and should comply with the City's digital submission requirements for Improvement Plans. The City will provide AutoCAD file of City Title Sheets. All written documents shall be transmitted to City in the City's latest adopted version of Microsoft Word and Excel. 19. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes in writing the release of information. 0 20. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents his /her judgment as a design professional and is supplied for the general guidance of City. Since Consultant has no control over the cost of labor and material, or over competitive bidding or market conditions, Consultant does not guarantee the accuracy of such opinions as compared to contractor bids or actual cost to City. 21. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. 22. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly 10 identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all work, data, Documents, proceedings . and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 23. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant may discontinue work after 60 days as result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his /her designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 24. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and /or restoration expense shall be borne by Consultant. Nothing in this paragraph is • intended to limit City's rights. under any other sections of this Agreement. 25. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 26. CONFLICTS OF INTEREST The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 0 11 27. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, to City by Consultant 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. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Patrick Arciniega Public Works Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663 Phone: 949- 644 -3347 Fax: 949 - 644 -3318 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attn: Jon E. Bourgeois, P.E. Hall & Foreman, Inc. 420 Exchange, Suite 100 Irvine, CA 92602 -1301 Phone: (714) 665 -4500 Fax: (714) 665 -4501 28. 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, 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 discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 12 29. COMPLIANCE WITH ALL LAWS Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 30. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 31. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 32. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 33. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 34. 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. 35. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 0 13 f� 36. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: 4yf 4 C h City Attorney for the City of Newport Beach CITY OF NEWPORT BEACH, A Municipal Corporation By:Z "l N' n for the City of Newport Beach HALL & FOREMAN, INC.: i 1 By: i6 Jo E. Bour Bois, P.E. Pr sident -South Coast Div. /Principal Attachments: Exhibit A — Scope of Services Exhibit B — Fee Schedule f: \users \pbw \shared \agreements \fy 03 -04 \hall- foreman- ad- 95.doc 14 r I I Engineering• Surveying •Planning • Landscape Architecture EXHIBIT A CITY OF NEWPORT BEACH ASSESSMENT DISTRICT NO. 95 SCOPE OF WORK HFI has developed the following Scope of Services to provide the City of Newport Beach with complete Assessment Engineering services for the formation of the proposed Assessment Districts. Please see Section 7, 1913/191S Formation Checklist that HFI follows to ensure all deadlines are met and for Quality Control. Completion of the tasks outlined in the Scope of Services will ensure the City that all statutory requirements are met to establish the Districts, and allow the City to levy assessments on properties within the Districts. Under Basic Services, HFI will provide all Assessment Engineering services to prepare the necessary reports, maps, and documentation required by the "Municipal Improvement Act of 1913" and "Improvement Bond Act of 1915' of the State of California Streets and Highway Code, and the "Special Assessment Investigation, Limitation and Majority Protest Act of 1931" and Proposition 218 of the State of California Constitution in order for the City to conduct the proceedings and hearings to form the proposed Assessment District. Under Extended Services, HFI will provide such additional services as may be required and authorized by the City for the project. Basic Services These Basic Services will be provided for the Assessment District proposed to be formed: TASK 1: Preliminary Engineer's Report Project Coordination Meet with City staff to discuss the proposed boundary the assessment methodology, the project schedule, and the team distribution list. Meet and coordinate with utility companies. The public utilities will prepare plans and cost estimate to underground the existing overhead utilities. ■ Research Gather maps, Assessor's parcel information, direct and indirect costs, and related data required to confirm the District boundary. HFI has contracted with Real Quest (Metroscan Online) for parcel data. ■ Site Review Review the district boundaries, existing and proposed improvements, and special benefit vs. general benefit. Field review the project site with city staff, utility representatives and property owners. Hall & Foreman, Inc. Page 1 9 EXHIBIT A — SCOPE OF WORK CITY OF NEWPORT BEACH AD NO. 95 • ■ Database Preparation Update property owner /parcel database information from the County. The database will be used for the assessment roll and required mailings and will include the following: - Assessment Number - Assessor's Parcel Number (APN) - Tract and Lot Number - Area of Lot in acres - Area signing petition - Relative front footage - Property Owner - Situs Address - Property Owner's Mailing Address - Parcel and Building Square Footage Land Use Assessed Valuation Existing Liens Deliverable: Database file will be provided electronically to the City. ■ Determine Petition Sufficiency . Initially prepare a database of property owners to review and confirm the petitions. Determine if the petitions were signed by property owners representing more than sixty percent (60 %) of the assessable area of lands. Prepare and sign the Certificate of Sufficiency of Petition. ■ Prepare Cost Estimate Prepare cost estimate, including improvement costs, incidental costs, bond costs, and contributions (if any), as supplied by others. Construction costs will be based upon the construction bid. The City will coordinate the construction bid process with the utilities. ■ Prepare Benefit Assessment Methodology and Assessment Roll a. Discuss the benefit assessment methodology with the City, agree upon one benefit assessment methodology and calculate the assessments for each parcel. b. Submit the assessment roll to City staff for approval. ■ Conduct Property Owner Information Meetings Conduct three (3) property owner information meetings to discuss the preliminary assessments, methodology, and formation process. ■ Attend Project Coordination Meeting Attend staff meetings with City staff, bond counsel, financial advisor, bond underwriter, and /or appraiser. Hall & Foreman, Inc. Page 2 EXHIBIT A — SCOPE OF WORK CITY OF NEWPORT BEACH AD NO. 95 ■ Prepare Preliminary Engineer's Report • a. The Preliminary Engineer Report preparation is proposed to begin in February of 2007. And, at that time, HFI will update the parcel data information. Prepare Preliminary Engineer's Report detailing the costs and proposed assessments. The Report will be prepared by a Registered Civil Engineer, and shall contain at least the following information: - Plans and Specifications, to be prepared by others - Description of Works of Improvement - Preliminary Estimate of Costs - Assessment Diagram - Method of Benefit Assessment Spread - Assessment Roll including: Assessor Parcel's Number 1931 Act Information Total Assessed Value, Existing Liens, Value to Lien Ratio Benefit Units Formation Assessment (1st bond sale) Federal Income Tax component of contribution (2nd bond sale) - Right -of -Way Certificate (executed by Superintendent of Streets) and the Certificate of Completion on Environmental Proceedings (executed by Director of Public Works) b. Coordinate with Special Counsel, City Attorney, Financial Advisor, Under- writers, Property Owners, and other City Staff as required for the project. c. File Preliminary Engineer's Report with the Superintendent of Streets and with the City Clerk prior to adoption of the Resolution of Intention by the City Council. ■ City Council Meeting Attend one (1) City Council meeting involving adoption of the Resolution of Intention, approval of the Preliminary Engineer's Report, approval to provide Notice of Public Hearing and mail Ballots to property owners. Provide technical support to the City staff, present the Engineer's report and respond to questions as directed by City staff. ■ Prepare Proposed Boundary Map a. Prepare and deliver two (2) original and one (1) copy of the Proposed Boundary Map to the City for signature. b. Record the Boundary Map at the County after the Resolution of Intention is adopted by Council. TASK 2! Proposition 218 Ballot Vote ■ Notice of Public Hearing /Ballot Accomplish printing and mailing of Notice of Assessment, Notice of Public Hearing, and Ballot to all assessed property owners of record within the proposed District. HFI has extensive experience in preparing the cover letter, legal notice, and ballot for submittal to the City and legal counsel for review and approval. The Notice of Hall & Foreman, Inc. Page 3 • EXHIBIT A — SCOPE OF WORK CITY OF NEWPORT BEACH AD NO. 95 Assessment will clearly indicate payment options available, first bond issue amount, second bond issue amount and the ITCC component. This includes printing of the cover letter, Notices and Ballots and stuffing in envelopes (City is to provide letterhead, envelopes, and postage). HFI will mail the notices or will provide the stuffed envelopes to the City for posting. ■ Declaration of Mailing HFI will provide the City with signed declarations certifying that the above Notices were mailed forty-five (45) days prior to Public Hearing. ■ Property Owner Information Meeting Conduct two (2) property owner information meetings to discuss preliminary assessments. ■ Public Meeting Attend one (1) City Council Public Meeting to make presentations and respond to questions as directed by City staff. ■ Attend Project Coordination Meeting Attend staff meetings with City staff, bond and /or appraiser. TASK 3: Final Engineer's Report counsel, financial advisor, bond underwriter, ■ Prepare Final /Amended Engineer's Report a. Prepare Final / Amended Engineer's Report with the confirmed assessments based on final approved estimate of fees to be financed, including incidental costs and financing costs. b. File Final Engineer's Report with the Superintendent of Streets and with the City Clerk prior to the Public Hearing. ■ Prepare Assessment Diagram a. Prepare and deliver two (2) original and one (1) copy of the Assessment Diagram. The Diagram will show the boundaries and each property with its assigned Assessment Number. ■ City Council Meeting - Public Hearing a. Attend one (1) City Council meeting involving a Public Hearing for the District formation. Provide technical support to City staff, present the Engineer's Report and respond to questions as directed by staff. At the Public Hearing, HFI will tabulate the ballots and report the final percentages weighted by dollar amount to the City prior to the end of the Public Hearing. If a simple majority of the ballots counted by assessment weight are in favor of forming the District, recommend formation to City Council. Hall & Foreman, Page 4 EXHIBIT A- SCOPE OF WORK CITY OF NEWPORT BEACH AD NO. 95 TASK 4: District Formation ■ Notice of Assessment After the Public Hearing, accomplish printing and mailing of the Notice of Assessment lien confirmed to each property owner. This includes City- provided envelopes and postage and an explanation of payments options of either (1) the thirty (30) days cash collections or (2) the twenty (20) years bond issuance and payment of the assessment yearly on the property tax bill. a. Notice of Assessment will clearly indicate payment options including 1st bond issue and 2nd bond issue with ITCC portion. b. Provide the City with signed declarations certifying that the Notice of Assessments have been mailed. ■ Record Assessments at County Record the Assessment Diagram and the Notice of Assessment with the property owner's names at the County. ■ Revise Final Engineer's Report Make any revisions to the Final Engineer's Report, as directed by City Council. ■ Review the Preliminary and Final Official Statements 1] ■ Project Team Coordination Meeting • Staff meeting to coordinate with special counsel, City attorney, financial advisor, underwriters, property owners, and other City staff, as required for the project., Extended Services HFI will provide Extended Services, if requested and authorized by the City of Newport Beach, as negotiated at the time services are requested and in accordance with the Schedule of Hourly Rates current at the time of providing services. Extended Services may include: • Preparation of additional displays and /or audio /visual materials (besides the boundary map and assessment diagram); • Attendance at property owner meetings and Council meetings in addition to those included in the scope of services; • Prepare the Debt Service /Amortization Schedules; • Submit the annual assessments to the Auditor - Controller; • Construction Management; • Coordinate private property conversions during construction. Responsibilities of the City and /or Other Consultants • Preparation of Certificate of Sufficiency of Petition; • Preparation of execution of Notice of Exemption; • Designate a Project Manager to manage and coordinate the project; • Obtain complete design plans, and construction bid from utility companies; • Right -of -way services; • Coordinate right -of -way entry onto private property, as required; Hall & Foreman, Inc. EXHIBIT A— SCOPE OF WORK CITY OF NEWPORT BEACH AD NO. 95 • • Provide letters of introduction and authorization to other agencies and utilities to secure information, as required for the project; • Retain qualified legal counsel and financial advisor to provide guidance during District formation proceedings; • Schedule, administer, and accomplish the publishing and /or posting of required notices in accordance with the Government Code; • Provide all resolutions required by the City Counsel; • Schedule and agendize Council meetings and hearings as required under the Act; • Provide letterhead, envelopes, and postage for mailing of notices; • Provide AutoCad map file of assessment district with parcels and boundary. • J Hall & Foreman, Inc. Page 6 EXHIBIT B CITY OF NEWPORT BEACH ASSESSMENT DISTRICT NO. 95 FEE SCHEDULE 01/09/2004 • is 04189 /admin /c0ntr3ctsl0401D6 Exhibit B Fee Schedule SUMMARY OF SCOPE .. Project TOTAL EST. TOTAL EST. TERMINATION SCHEDULEI-TASK 4 Engineer Manager Analyst Drafter Jsn.2004- Feb.2004 Billing Rate Fm FY 2003-2004 TASK 1: Preliminary Engineer's Report $160 $140 1 $65 $00 1 $65 1 Tvo (2) Meetings. City staff and ltti6ly Agency 6 his 6 hrs 12 hm ft 90D.D0 2 ResearuJDelabass PreparatioryPetilion Sufficiency Tonninabon Clause if District 1 hrs 4 hrs 6 hrs i] his 111,41)(1.1111 Billing Rates to be Negotiated for Tasks Beginning in Feb 2007 Feb. 2007 -Aug. 2007 Prepare Preliminary Engineers Report ] 1 his 4 his 20 has 2hrs 27 hrs 112,55 11.110 4 Prepare Boundary Map/Record at County 2 hrs 4 hrs lifts 1153(1X(1 5 Conduct Three (3) Property Owner Meetings 3hrs 9firs 6hrs to hrs 112,250.1)(1 6 Attend Coonul Meeting (ROI) 2 hrs 2 has 4 hrs 1161)(1.1)(1 7 One (1) Prciect Team Coordination Meeting 2hrs 2 his 112611.1)1) Sublets! Task 1 Preliminary Engineers Report TASK 2: Proposition 218 Ballot Vote 82 his f9 ,41 (1.(111 6 Prepare and Mail Notice 8 Ballot I 2 hrs 4 hrs 8 hrs 14 his 111,140.1)(1 B Conduct Two (2) Property Owners Meetings 2 hrs 4 has 2 hrs 2 hrs 10 his 111,1611.01) 10 Attend Public Meeting - Courvol Meeting t his t his a hre 11600 no 11 One (1) Project Team Coordination Meeting 2 hrs El 2 hrs 112811.1)1) Subtotal Task 2 Proposition 216 Ballot TASK3: Final Engineer's Report ]O hrs f3,2110.D11 12 Prepare Final Engineers Report this I 4 his 6 hrs 2 hrs 15 his 111,530.00 13 Prepare Assessment Diagram 2 hrs 2 has 4 hre (]50.00 74 Conduct Two (2) Property Owners Meetings 2 hrs 4 hrs 2h. lifts 111,050.1)1) 15 Attend Public Meeting - Council Meeting 2 has 2 has 4 his 11600.00 Attend Public Hearing - Ccurlul Meeting 16 and Ballot Tabulation 2 his 2 hrs 2 hrs 6 hm $77D.110 17 Oft (1) Project Team Coordination Meeting 2 hrs 2,1h rs 1126(1X(1 Subtotal Task ] Final Engineers Report Tani Clause it District 3 hrs f 4.too do t6 TASK 4: District Formation Amend Engineers Report as directed by Council 1 hrs 2 hrs 1 hrs 4 hrs 11375.1)(1 19 Mail Notice of Assessment 2 hrs 2 hrs 4 hrs ohm 11710.00 Record Asmt Diagram and List of Assessed Property 20 Owner names 2hrs ihm 3hm 11236.00 21 Review Prelim. and Final Official Statements 2 his 2 his (260.00 Subtotal Task District Formation 17 hrs 111600110 Raimburaables (mileage, County recording fees, postage for mailings, Plotting exhiCits for m rstings) TOTAL FEE - District Formed to Completion 24 him 56 has 62 firs 6 has 20 has 168 firs (500.00 $19,29D.CD is 04189 /admin /c0ntr3ctsl0401D6 Exhibit B Fee Schedule City of Newport Beach NO. BA- 04BA -047 BUDGET AMENDMENT 2003 -04 FECT ON BUDGETARY FUND BALANCE: Increase Revenue Estimates X Increase Expenditure Appropriations AND Transfer Budget Appropriations SOURCE: from existing budget appropriations from additional estimated revenues PX from unappropriated fund balance EXPLANATION: This budget amendment is requested to provide for the following: AMOUNT: �19,z9o.00 NIncrease in Budgetary Fund Balance Decrease in Budgetary Fund Balance No effect on Budgetary Fund Balance To increase expenditure appropriations related to engineering services for Assessment District No. 95. ACCOUNTING ENTRY: BUDGETARY FUND BALANCE Fund Account 4095 3605 VENUE ESTIMATES (360 1) Fund /Division Account EXPENDITURE APPROPRIATIONS (3603) Amount Description Debit Credit Assessment District #95 Fund Balance $19,290.00 Description Signed Financial Approval: Administrative Services Director Signed: •Od4, / 47� Administrative App val: City Manager foigned: City Council Approval: City Clerk $19,290.00 / Date ' bate Date Description Division Number 74095 Assessment District #95 Account Number 9812 Engineering Services Division Number Account Number Division Number Account Number Division Number Account Number Signed Financial Approval: Administrative Services Director Signed: •Od4, / 47� Administrative App val: City Manager foigned: City Council Approval: City Clerk $19,290.00 / Date ' bate Date i rityof - Piewp✓Ort Sea h NO- t'sA= - -04BA- 047 _. -._. BUDGET AMENDMENT 2003 -04 AMOUNT: $1s,zso.00 EFFECT ON BUDGETARY FUND BALANCE: Increase Revenue Estimates Increase in Budgetary Fund Balance X Increase Expenditure Appropriations AAfD �X Decrease in Budgetary Fund Balance Transfer Budget Appropriations No effect on Budgetary Fund Balance SOURCE: from existing budget appropriations from additional estimated revenues X from unappropriated fund balance EXPLANATION: This budget amendment is requested to provide for the following: To increase expenditure appropriations related to engineering services for Assessment District No. 95. ACCOUNTING ENTRY: BUDGETARY FUND BALANCE Fund Account 4095 3605 REVENUE ESTIMATES (3601) Fund /Division Account EXPENDITURE APPROPRIATIONS (3603) Amount Description Debit Assessment District #95 Fund Balance $19,290.00 Description Signed Signed: Signed: Financial Approval: Administrative Services Director City Council Approval: City Clerk Credit $19,290.00 i J - -el Date bate ( /V Date Description Division Number 74095 Assessment District #95 Account Number 9812 Engineering Services Division Number Account Number Division Number Account Number Division Number Account Number Signed Signed: Signed: Financial Approval: Administrative Services Director City Council Approval: City Clerk Credit $19,290.00 i J - -el Date bate ( /V Date