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HomeMy WebLinkAbout12 - Assessment District 103 - Peninsula PointCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 12 Date: September 9, 2008 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Public Works Department Iris Lee, Senior Civil Engineer 949 - 644 -3323 or ilee @city.newport- beach.ca.us SUBJECT: PROPOSED UNDERGROUND ASSESSMENT DISTRICT NO. 103 (PENINSULA POINT) - REQUEST FOR FUNDING AND APPROVAL OF PROFESSIONAL SERVICES AGREEMENT WITH HARRIS & ASSOCIATES Recommendations: 1. Approve a budget amendment authorizing an additional advance from the General Fund in the amount of $35,163.20 to account number 74103 -9812 for Assessment District No. 103 assessment engineering and district formation services. 2. Authorize the Mayor to execute a Professional Services Agreement with Harris & Associates in an amount not to exceed $63,935.00 for assessment engineering and district formation services. Discussion: On February 26, 2008, the City entered into an On -Call Professional Services Agreement (PSA) with Harris & Associates for Underground Utility Assessment District and Inspection Services. Under Section 4 of the PSA, proposals in an amount excess of $50,000.00 will require a separate PSA. The intent of the on -call contract was to supplement staff resources required in completing a number of anticipated projects. On August 19, 2008, Harris & Associates submitted a proposal for assessment engineering and pre /post- district formation services, for a not -to- exceed fee of $63,935.00 (Exhibit "A "). This expanded scope of services is divided into three phases (1) Pre - Construction Services, which includes a thorough review of the utility plans for compliance with City standards, and utility coordination support; (2) Engineer's Report and Formation Proceedings, which includes balloting procedures in accordance with Proposition 218; and (3) Assessment Confirmation and Bond Sales, pursuant to the "Improvement Bond Act of 1915 ". Phase 3 will not be applicable if the district fails at the public hearing. A detailed Subject: Proposed Underground Assessment District No. 103 (Peninsula Point) - Request for Funding and Approval of Professional Services Agreement with Harris & Associates September 9, 2008 Page 2 Scope of Services is included with the Professional Services Agreement attached (Exhibit "B "). As of August 18, 2008, a $28,771.80 balance remains from the expired PSA with Hall and Foreman for assessment engineering services. To date, $2,168.20 has been expended for the AD -103 Petition for Special Assessment Proceedings. The remaining balance of $28,771.80 will be applied towards the new expanded contract with Harris & Associates, if approved, for the amount of $63,935.00. 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. Funding Availabilitv: Upon approval of the recommended budget amendment, sufficient funds will be available in the following account: Account Description Account Number Amount Assessment District No. 103 74103 -9812 $63,935.00 Prepared by: Submitted by: Iris (.(Stephen G. Badum rvil Engineer Public Works Director Attachments: Exhibit "A" - Boundary Map of Proposed District Exhibit "B" - Professional Services Agreement BOUNDARY OF PROPOSED ASSESSMENT DISTRICT 6ALBOA BOILEVP D EAST yry/ t r) r• r r� r: 1�- r r r` r.- �°� r f •DEL PIPZAf NOWE LL P /�� 327 / � 2 Exhibit A - PROPOSED ASSESSEMENT DISTRICT NO.103 AREA BOUNDED BY "G" STREET, BALBOA BOULEVARD, CHANNEL ROAD, AND OCEAN BOULEVARD POLES TO BE REMOVED _ „ OVERHEAD LINES TO BE REMOVED N NOTTOSLAIE PAGE 1 OF 2 12114103 BALBOA .88�I1I.r N?N i- BLVD EAST 401 11 ._....402_ 2 4ao NI tiV S1�"' ^t rg ,y No pN tq $ ,s j N p Nfnt `N -�i d'ipp� 0 yy NINIQrJ `p�i'ot ,� �`.N.N N O pry m N ?N rN i�l fa31 a N N BOUNDARY OF PROPOSED ASSESSMENT DISTRICT 0 Iz N 1 N I N I N Exhibit A - PROPOSED ASSESSEMENT DISTRICT NO. 103 AREA BOUNDED BY "G" STREET, BALBOA BOULEVARD, CHANNEL ROAD, AND OCEAN BOULEVARD _ POLES TO BE REMOVED „ OVERHEAD LINES TO BE REMOVED N NOT To SCn PAGE 2 OF 2 12/14/03 City of Newport Beach o'• Public Works Department PROFESSIONAL SERVICES AGREEMENT Vendor: I Harris & Associates Description of Work: Assessment engineering services and district formation services for Underground Utility Assessment District No. 103. Please answer the following questions and route in the order listed to the right: Council Policy Selection Process Sole Source* I I RFQ /RFP Emergency X I On -Call Justification attached: I Ys No N/A How many firms were contacted? How many proposals were received and reviewed? Contract Terms Justification attached: Yes No X N/A Required Approval: Project Manager: Div. Manager: Deputy Director: City Attorney: Director: City Manager: Mayor: Project File: PSA Under $30,000 Amend 1 Up to $50,000 x Over $50,000 Director City Manager Ci Council Selection Process Sole Source* I I RFQ /RFP Emergency X I On -Call Justification attached: I Ys No N/A How many firms were contacted? How many proposals were received and reviewed? Contract Terms Justification attached: Yes No X N/A Required Approval: Project Manager: Div. Manager: Deputy Director: City Attorney: Director: City Manager: Mayor: Project File: PSA 100% -110% Amend 1 110% -125% Amend 2 Over 125% Director I Cit y Manager City Council Selection Process Sole Source* I I RFQ /RFP Emergency X I On -Call Justification attached: I Ys No N/A How many firms were contacted? How many proposals were received and reviewed? Contract Terms Justification attached: Yes No X N/A Required Approval: Project Manager: Div. Manager: Deputy Director: City Attorney: Director: City Manager: Mayor: Project File: PSA $ Amend 1 $ Amend 2 $ Amend 3 $ Amend 4 $ Total $ X I New Agreement I I Amendment No. If amended, will the total contract amount exceed 125 %? YES NO N/A Date of Council Action? 9/9/08 Does the agreement cover the entire length of the anticipated project? X YES NO Are the Proposal or Scope of Work and Billing Rates attached? X YES NO Have any of the standard terms of the agreement been changed? YES I X I NO City Attorney Review Secretary of State Business Confirmation Attached? YES NO Approved by the City Attorney? I I YES I I NO I Date Approved: . ........... .... .................................................... . ..................... I Budget Account I I Encumbrance No. Is a Budget Amendment required? I I Yes I I No N/A Recommended funds to use for Budget Amendment? Comments: * **"* KEEP THE REDLINED COPY ATTACHED * * * * ** PROFESSIONAL SERVICES AGREEMENT WITH HARRIS & ASSOCIATES, INC., FOR ASSESSMENT DISTRICT ENGINEERING AND DISTRICT FORMATION SERVICES FOR UNDERGROUND UTILITIES ASSESSMENT DISTRICT NO. 103 THIS AGREEMENT is made and entered into as of this day of 2008, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "), and HARRIS & ASSOCIATES, INC., a California Corporation whose address is 34 Executive Park, Suite 150, Irvine, California, 92614 -4705 ( "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 20 -B Underground Utility Assessment District No. 103 for the City of Newport Beach in accordance with Proposition 218 requirements, as described in Exhibit A. C. City desires to engage Consultant to provide engineering and district formation services for proposed Assessment District No. 103, which includes utility plan reviews, preparation of an Engineer's Report, execution of a ballot vote in accordance with Proposition 218 requirements, assessment confirmation, and bond sales consultation pursuant to "Improvement Bond Act of 1915 ". D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member of Consultant for purposes of Project, shall be Joan E. Cox, P.E. 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 above written date, and shall terminate on the 30th day of June, 2011, 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.. 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 Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for all work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Sixty Three Thousand Nine Hundred Thirty Five and no1100 ($63,935.00) 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. 4.1 Consultant shall submit monthly invoices to City describing the work performed the preceding month. Consultant's bills shall include the name of the person who performed the work, a brief description of the services performed and /or the specific task in the Scope of Services to which it relates, the date the services were performed, the number of hours spent on all work billed on an hourly basis, and a 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 writing 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 performed without the prior written authorization of City. As used herein, "Extra Work' means any work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 5. 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 JOAN E. COX, P.E. 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. 6. ADMINISTRATION 3 This Agreement will be administered by the Public Works Department. IRIS LEE, P.E. 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. By delivery of completed work, Consultant certifies that the work conforms to the requirements of this Agreement and all applicable federal, state and local laws and the professional standard of care. 8.2 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force in effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 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 ri work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 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, volunteers and employees (collectively, the "Indemnified Parties) from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to the negligence, recklessness, or willful misconduct of the Consultant or 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 sole negligence, active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this 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 I 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. 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. Signature. 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. Coveraqe Reauirements. i. Workers' Compensation Coveraqe. 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 6 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 (10 calendar days written notice of non- payment of premium) 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 any owned, hired, non -owned or rented vehicles, in an amount not less than two million dollars ($2,000,000) 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: 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. 7 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 (10 calendar days written notice of non - payment of premium) 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 underthis 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 judgment may be necessary for its proper protection and prosecution of the work. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint- venture or syndicate or 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. N 17. OWNERSHIP OF DOCUMENTS 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. 18. 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. 19. 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. 20. 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 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 0 period of three (3) years from the date of final payment to Consultant under this Agreement. 21. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or 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. 22. 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 the law or any other sections of this Agreement. 23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 24. 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. 25. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served 10 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: Iris Lee, P.E. Public Works Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92663 Phone: 949 - 644 -3323 Fax: 949 - 644 -3318 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Attn: Joan E. Cox, P.E. . Harris & Associates 34 Executive Park, Suite 150 Irvine, CA 92614 -4704 Phone: (949) 655 -3900 Fax: (949) 655 -3995 26. 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 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. 11 27. 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. 28. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 29. 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. 30. 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 terns of this Agreement shall govern. 31. 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. 32. 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. 33. 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. im 34. 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. 35. 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: I //OL'— 0-"� City Attorney for the City of Newport Beach ATTEST: By: LaVonne Harkless, City Clerk CITY OF NEWPORT BEACH, A Municipal Corporation By: Mayor for the City of Newport Beach CONSULTANT: an (Corporate Officer) Title: Print Name: By: (Financial Officer) Title: Print Name: Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates 13 August 19, 2008 Mr. Michael J. Sinacori, PE Assistant City Engineer City of Newport Beach Public Works Department 3300 Newport Avenue Newport Beach, CA 92658 Re: Proposal for Underground Utility Services for Proposed Assessment District No. 103 Dear Mike, Harris & Associates appreciates the opportunity to present this proposal to provide professional engineering services for the subject project. The following are our proposed scope of services and estimated fees to provide these services based on the same terms and conditions outlined in our Cn- Call Services contract. SCOPE OF SERVICES The following is our understanding of the services that will be required by the City for this process. There are approximately 360 parcels within AD 103. Phase 1— Pre - Construction Services 1. Attend utility coordination meetings on an as- needed basis. Coordinate between City and property owners as required. Up to three (3) meetings estimated. 2. Review plans prepared by AT & T California (AT &T), and Time Warner Cable (TWC). 3. Perform a comprehensive field review of the project site and mark out the locations of the vent -sites in the field. Phase 2 — Engineer's Report and Formation Proceedings 4. Assist Bond Counsel and City Staff in establishing a project schedule. 5. Attend utility coordination meetings on an as- needed basis. Coordinate between City and property owners as required. Up to three (3) meetings estimated. 6. Prepare the Boundary Map and the Assessment Diagram for the Assessment District from an electronic base map supplied by the City. 7. Prepare the draft Preliminary Engineer's Report in accordance with the 1913 Act, the 1931 Act and Proposition 218, to include the following: • 1931 Act information and tables • Plans and specifications (by reference) • Description of works of improvements • Preliminary estimate of costs • Assessment Diagram • Method of assessment apportionment Q'. \ProposalsWewport BeachWl03\AD -103 Full Service Proposal 19aug0g.Uoc 34 Executive Park, Suite 150, Irvine, California 92614 - 4705 949.655.3900 FAX 949.655.3995 irvine @har6s- assoc.com Mr. Michael J. Sinacori, PE City of Newport Beach August 19, 2008 Page 2 • Assessment roll with preliminary assessments • Right -of -Way Certificate (executed by Superintendent of Streets) • Certificate of Completion (executed by Director of Public Works) 8. Finalize the Preliminary Engineer's Report; including apportionment and method of assessment distribution, based on comments received. 9. Attend property owner information meetings to discuss preliminary assessments. Up to three (3) meetings estimated. 10. Attend the City Council meeting at which Resolution of Intention and Preliminary Engineer's Report are considered and Public Hearing is set. 11. Prepare Boundary Map for recordation and record. 12. Prepare the Notices of Public Hearing and Assessment Ballots, including the property owner's name and mailing address, Assessor's parcel number and preliminary assessment amount, for mailing to all assessed property owners of record within the proposed district. Work will be performed in accordance with the 1913 . Act and Proposition 218. This scope assumes Special Council and the City will review and approve the contents of the Notice and that the City will provide the envelopes and postage for mailing. Prepare a written declaration that this task has been completed. Handle all property owner inquiries regarding the Assessment District and coordinate issuance of replacement ballots, as requested by property owners. 13. Prepare Confirmed Engineer's Report in which the confirmed assessment spread is based on final approved estimate of costs to be financed, including incidental and financing costs. 14. Attend the City Council meeting at which the Public Hearing is conducted to provide technical support and answer questions. Tabulate the assessment ballots after the close of the public hearing and present the results to the City Council. 15. Make revisions to the Engineer's Report as ordered by the City Council. 16. Coordinate with City and property owners as necessary during the formation proceedings. Up to three (3) meetings estimated. Phase 3 - Assessment Confirmation and Bond Sale 17. Prepare the Notice of Assessment, List of Assessed Property Owner Names and Assessment Diagram for recordation and record. 18. Prepare the Notice of Assessment, including the confirmed assessment amount as well as cash payoff amount, for mailing to all assessed property owners of record within the confirmed district. This scope assumes Special Council reviews the contents of the Notice and that the City will provide the envelopes and postage for the mailing. Prepare a written declaration that this task has been completed. Handle all property owner inquiries regarding the Assessment District payoff process and coordinate issuance of replacement notices, as requested by property owners. 19. Prepare the List of Paid and Unpaid Assessments for use by the City. QAProposals \Newport BeacMad 103VAD -103 Full Service Proposal 19augOg.doc I Harris & Associates.. Mr. Michael J. Sinacori, PE City of Newport Beach August 19, 2008 Page 3 20. Assist the City and project team with review of the Preliminary Official Statement and the Official Statement, and provide basic assessment engineering, as necessary, to bring the project to the point of initial bond sale. 21. Participate in meetings with City staff, project administration and coordination with City staff, property owners, bond counsel, financial advisor, bond underwriter, appraiser, and other project consultants. Up to three (3) meetings estimated. ESTIMATED FEES Based on our understanding of the services required, our estimated fees for the Scope of Services identified above shown below and based on a time -spent basis in accordance with the hourly rates identified in our on- call contract. Hourly rates include most direct costs such as vehicles, mileage, equipment, computers, communications and reproduction. Phase 1— Pre - Construction Services Tasks I through 3 ........................................ ............................... Time & Materials, estimated at $6,990 Phase 2 — Engineer's Report and Formation Proceedings Tasks 4 through 16 .................................... ............................... Time & Materials, estimated at $44,785 Phase 3 - Assessment Confirmation and Bond Sale Tasks 17 through 21 .................................. ............................... Time & Materials, estimated at $12,160 These fees are based on the Formation Proceedings being completed in calendar year 2008 and the property owner coordination process being completed in calendar year 2009. The following tables provide the estimated hours of work allocated for each of the project tasks. Project Dep. Proi. 9 $2,070 Manager Manager Total Total I $2301hr $180thr Estimated Estimated Hours Hours Hours Fee 1 Utility Coordination Meetings 3 mills est.) 9 9 $2,070 2 Review Utilif Plans 4 4 $720 3 Field Review 6 8 14 $2,820 Project Management 6 6 $1,380 Total Phase 1 Services: Q:1Propomis\Newpom Beach1ad103WU -103 Full Service Proposal 19aug03.doc 21 12 33 $8189u Hams & Associates. Mr. Michael J. Sinacori, PE City of Newport Beach August 19, 2008 Page 4 Project ; Sr. Proj. Sr. Drafting I Admin 2 1 Admin Manager) Analyst Technician I Asst Total Total $2301hr I $1001hr 1 $1101hr i $65/hr Estimated Estimated Hours Hours I Hours ' Hours Hours Fee Phase 2- Enaineers Revort and Formation Proceedings 7 Establish Project Schedule 2 1 Admin 1 10 1 $1,520 2 $460 8 Utility Cowdinalion Meetings and Owner Coord _(3 milts est.) .. ..... 9 Prepare Boundary Map and Assessment Diagram ! 7_6 �� -_ 2 6 ! __.__. ..___. 45 _ 16 53 .. $3,680 —. $6,010 10 Prepare draft Preliminary Engineers Report 28 36 Hours 4 68 $10,300 11 Finalize Preliminary Engineers Report_ 2 12 4 4 18 $1,920 12 Progeny (Dwner, Council Mt (1 g) tin s (3 milts est.) 13 Attend ROI Council Mt 1 mt � r 15 4 i 6 - -L i 3 _ 24 4 $4,245 _ $920 14 Prepare Boundary Map for Recordation and Record 4 4 $400 15 Prepare Notices of Formation and Ballots 8 i 30 12 50 $5,620 16 Prepare AmendedlConlimed Engineers Repon 2 _ _4__ _ 14 $1,520 17 Attend Public Hearing & Tabulate Assessment Sagols 1 mtg _ __e� 6 fi 12 $1,980 18 Make revisions to En ineers Report as directed 2 8 4 14 $1,520 19 _Project Team Mee6n2s and Coordination (3 mlgs . 9 _ 9 $2,070 Project Mana ement 18 18 $4.140 10121 Phase 2 Services: Phase 3 - Assessment Cnnfirmation and Rnnd Sara 114 118 46 51 366 b44,766 Project Sr. Proj. Admin 1 10 1 $1,520 Manager Analyst Asst Total Total $2301hr $100Ihr $651hr Estimated I Estimated I Hours Hours Hours Hours Fee 20 Recorded Notice of Assessment 4 6 1 1 10 1 $1,520 21 Mailed Notice of Assessment 6 25 . 12 43 $4,660 22 Paid/Unpaid List .... Review.POS and OS_ _ 24 Project Team Meetings and Coordination (3 mtgs est.) 2 2 $460 4 4 $920 16 _ 16 _ $3,680 Project Management 4 1 4 $92D I 01a1 Phase s services: 36 s1 a r6 y1Z,10u Our team is excited about the opportunity to continue working with the City of Newport Beach on this challenging project. We would welcome the opportunity to meet with you to discuss any aspect of our technical or fee proposal. If you have any questions regarding this proposal, please call me at 949.655.3900 ext. 2337, or email me atjcox @harris- assoc.com. Sincerely, Harris & Associates Joan E. Cox, PE Senior Project Manager Financial Engineering Q: \Proposals \Newport Seachlad 103\AD-103 Full Service Proposal 19augog.doc E Harris & Associates.. Citv of Newport Beach Assessment District No. 103 Fee Schedule (Exhibit B) Harris & Associates Range of Hourly Rates: All Employees ASSESSMENT ENGINEERING AND COORDINATION HOURLY RATE Project Directors $190 -270 Project Managers 125 -240 Project Engineers 100 -230 Technical Support 75 -150 Administration 65 -130 CONSTRUCTION / PROGRAM MANAGEMENT HOURLY RATE Project Directors $190 -270 Project Managers 125 -240 Construction Managers 100 -210 Resident Engineers 150 -210 Construction Engineers 110 -180 Scheduling Engineers 110 -210 Cost Engineers 110 -210 Inspectors 100 -180 Technicians 90 -160 Administration 65 -130 Notes: Unless otherwise indicated in the cost proposal, hourly rates include most direct costs such as vehicles, mileage, equipment, computers, communications and reproduction (except large quantities such as construction documents for bidding purposes). QiProposals\Nmport aeach1adI03WD103 rate schedule 19augO8v2.doc = Harris & Associates. am I City of Newport Beach NO. BA- 09BA -010 BUDGET AMENDMENT 2008 -09 AMOUNT: $3s,1s3.zo EFFECT ON BUDGETARY FUND BALANCE: Increase Revenue Estimates Increase in Budgetary Fund Balance Pd Increase Expenditure Appropriations AND E 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 for proposed Underground Assessment District No. 103, Peninsula Point. ACCOUNTING ENTRY: BUDGETARY FUND BALANCE Fund Account 4103 3605 REVENUE ESTIMATES (3601) Fund /Division Account EXPENDITURE APPROPRIATIONS (3603) Description AD #103 - Fund Balance Description Signed: /krto C. Fina ci I Approval: AdministaKe Services Director Signed: Xdministrative Appr al: City Manager Signed: Amount Debit Credit $35,163.20 * ' Automatic $35,163.20 —s —6 Date ata� City Council Approval: City Clerk Date Description Division Number 74103 AD #103 Account Number 9812 Assessment District Engineering Division Number Account Number Division Number Account Number Division Number Account Number Signed: /krto C. Fina ci I Approval: AdministaKe Services Director Signed: Xdministrative Appr al: City Manager Signed: Amount Debit Credit $35,163.20 * ' Automatic $35,163.20 —s —6 Date ata� City Council Approval: City Clerk Date