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HomeMy WebLinkAbout06 - Request for Petition Certification and Funding for Proposed Underground Assessment District No. 124 (Central Balboa Island)Q SEW Pp�T CITY OF z NEWPORT BEACH c�<,FORN'P City Council Staff Report February 23, 2021 Agenda Item No. 6 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: David A. Webb, Public Works Director - 949-644-3311, dawebb@newportbeachca.gov PREPARED BY: Michael J. Sinacori, Assistant City Engineer, msinacori@newportbeachca.gov PHONE: 949-644-3342 TITLE: Resolution No. 2021-12: Request for Petition Certification and Funding for Proposed Underground Assessment District No. 124 (Central Balboa Island) and Approval of Professional Services Agreement for Assessment Engineering ABSTRACT: Residents within a roughly 50 -block area of central Balboa Island have submitted a petition to the City of Newport Beach (City) that was signed by at least 60 percent of the affected property owners requesting formation of Underground Utility Assessment District Number 124. The next step in the assessment district process would be for the City to advance funds to retain an Assessment Engineer to prepare an Engineer's Report and to circulate ballots for a property owner vote on a proposed assessment. Staff would assist the process by developing and soliciting a property owner vote in the coming months to be based on a conservative cost estimate developed at the completion of the schematic level design. RECOMMENDATION: a) Staff recommends the City Council find this project exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15302(d) (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); b) Adopt Resolution No. 2021-12, A Resolution of the City Council of the City of Newport Beach, California, Accepting Petition of Assessment District No. 124; c) Approve Budget Amendment No. 21-031 to advance and appropriate $135,000 from General Fund and increase expenditures in Account No. 67502-941006 (AD Assessment Engineering); and d) Approve Professional Services Agreement with NV5, Inc. of Irvine, CA for a not -to -exceed fee of $135,000.00 for Assessment Engineering Services. 6-1 Resolution No. 2021-12: Request for Petition Certification and Funding for Proposed Underground Assessment District No. 124 (Central Balboa Island) and Approval of Professional Services Agreement for Assessment Engineering February 23, 2021 Page 2 FUNDING REQUIREMENTS: Upon approval of the Budget Amendment, sufficient funding is available to complete this task. The following fund will be expensed: Account Description Account No. Expensed to Date Estimated Cost AD 124 Assessment Engineering 67502-941006 $16,830 $135,000 This account is set up to track engineering costs for proposed assessment districts requested by the community prior to a formal vote of those within the proposed district. Staff estimates preliminary design and assessment engineering costs to total $135,000.00 for this district. Petition support costs incurred to date amount to $16,830.00 In the event that formation of the district is successful, these costs will be reimbursed by cash contributions and bond proceeds from property owners within the district. If the district fails to be formed, funds advanced for preliminary work cannot be recovered from the proposed district property owners. In such case, the General Fund will cover the advance used for preliminary formation costs. DISCUSSION: The property owners of Proposed Underground Assessment District No. 124 for Central Balboa Island (AD 124) have submitted a petition to the City requesting a Special Assessment District be formed, pending approval of a district -wide vote, to finance the undergrounding of overhead utilities within the proposed district. The boundaries of the proposed AD 124 are shown on Attachment A. One of the initial steps in the district formation process is the circulation of the Petition for Special Assessment Proceedings (Petition). Proponents of AD 124 circulated the Petition to property owners within the proposed district and have now submitted the petition signatures to the City. The submitted signatures represent just over 60 percent of the assessable land within the proposed district. The City's guidelines require a minimum of 60 percent in favor of the district in order to proceed with the formation of a district. The City's consultant, NV5 Inc., has reviewed and certified that owners representing over 60 percent of the assessable property within proposed AD 124 have signed the Petition in support of undergrounding overhead utilities. Staff is proposing that the expedited formation process be utilized for this district, which is the same process used for four recently approved districts (AD 117, 111, 116, 116b and 113). This process reduces the financial risk to the City and builds on the momentum started during the signature gathering time for the Petition. The process proposed will be as follows: City staff retains an assessment engineer to prepare the Engineer's Report and prepare ballots for the property owners to vote on the undergrounding proposal. The vote will be based on a conservative cost estimate developed at the completion of the schematic level design rather than waiting for the completion of all the necessary utility company design work (which previously ranged between 18-24 months). 6-2 Resolution No. 2021-12: Request for Petition Certification and Funding for Proposed Underground Assessment District No. 124 (Central Balboa Island) and Approval of Professional Services Agreement for Assessment Engineering February 23, 2021 Page 3 If the vote for AD 124 is successful, with formation completed, the City will then direct final utility design. It is estimated to take approximately two years after a successful early vote to complete the design and bid the work. If the vote for AD 124 is unsuccessful, the City will stop all further work and not incur additional design costs. As shown on the AD 124 boundary map, the City's Balboa Island Fire Station No. 4 is within the proposed district's boundaries. For the purposes of the Petition certification, the fire station parcel is a part of the 60 percent petition calculation. City Council Policy L-28 discusses the assessment and voting process for City -owned land. Per the policy, the City Council has the discretion on a district case-by-case basis to either vote for an assessment, against an assessment, or not to vote. The City Council will determine how to vote for the City -owned land at a future date, when staff brings forward the assessment district proceedings, which include the approval of the assessment engineer's report and setting of the protest hearing. At that time, City costs to underground the fire station will be presented for consideration. Regardless of a City vote, if the assessment district is approved through a majority vote, the City would be required to financially participate for its share of the undergrounding associated with Fire Station No. 4. NV5, Inc. was the Assessment Engineer for AD 117 in Corona del Mar and also provided recent assessment engineering services on West Balboa Island AD 113. The firm has also been the on-call assessment engineer through the petition work for the subject AD 124 and has become very familiar with the property ownerships, which is key information that will be necessary for the assessment engineering work. Staff is recommending approval of a professional services agreement with NV5 to accomplish the assessment engineering and balloting for AD 124. ENVIRONMENTAL REVIEW: Staff recommends the City Council find this project exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15302(d) (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). NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). ATTACHMENTS: Attachment A — Proposed Assessment District Boundary Map Attachment B — Resolution No. 2021-12 Attachment C — Budget Amendment No. 21-031 Attachment D — Professional Services Agreement with NV5, Inc. 6-3 11 PARCELS: 91 DISTANCE: TRENCH 20, LATERALS:- POWER POI N.T.S. 6/5/2020 Attachment A ALL SECTIONS 17 LEGEND 9 POWER POLE TO BE REMOVED POWER LINE TO BE REMOVED GUY WIRE TO BE REMOVED — — — — POWER LINE TO REMAIN POWER POLE TO REMAIN IN PLACE ASSESSMENT DISTRICT AREA BOUNDARY — GUY WIRE TO REMAIN IN PLACE ON-SITE PARCEL NEW RISER POLE OFF-SITE PARCELS CITY OF NEWPORT BEACH ASSESSMENT DISTRICT - 124 CENTRAL BALBOA ISLAND Wo ATTACHMENT B RESOLUTION NO. 2021- 12 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, ACCEPTING PETITION OF ASSESSMENT DISTRICT NO. 124 WHEREAS, the owners of certain real property situated in the City of Newport Beach ("City") have filed with the City Clerk several signed counterparts of a petition, requesting the implementation of a project for the undergrounding of certain existing, overhead utility facilities, together with appurtenant work and improvements, as described therein, the cost of which is to be specifically assessed against each parcel of land benefiting from such improvements as shown on an exhibit map attached to the petition; WHEREAS, the petition contains an express waiver of statutory proceedings under the Special Assessment Investigation, Limitation and Majority Protest Act of 1931, as provided in Section 2804 of the Streets and Highways Code of the State of California and satisfies the requirements for instituting proceedings for the conversion of existing overhead electric and communication facilities to underground locations in accordance with Section 5896.5 of the Streets and Highways Code of the State of California; WHEREAS, the City Clerk has also received a certificate to the effect that the petition has been signed by persons owning lands constituting more than sixty percent (60%) in area of the land subject to assessment within the proposed assessment district; and WHEREAS, this City Council finds that the owners of more than sixty percent (60%) in area of the land proposed to be assessed for the proposed improvements, including the owners of more than five of the subject parcels, have signed such petition and that the petition contains the matters required by Sections 2804 and 2804.5 of the Streets and Highways Code. NOW, THEREFORE, the City Council of the City of Newport Beach resolves as follows.. Section 1: The petition, as filed with the City Clerk, is hereby found to be legally sufficient and is accepted. Section 2: The special assessment proceedings shall be undertaken by the terms of the petition, pursuant to the Municipal Improvement Act of 1913 and without further compliance with the Special Assessment Investigation, Limitation and Majority Protest Act of 1931 (commencing with Section 2800 of the Streets and Highways Code). Section 3: This City Council hereby finds and determines that the public interest and convenience will be served by the taking of such proceedings. 6-5 Resolution No. 2021 - Page 2 of 2 Section 4: If any section, subsection, sentence, clause or phrase of this resolution is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this resolution. The City Council hereby declares that it would have passed this resolution, and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional. Section 5: The City Council finds the adoption of this resolution exempt from the California Environmental Quality Act ("CEQA") pursuant to Section 15302(d) (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) of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because it has no potential to have a significant effect on the environment. Section 6: This action is "final" within the meaning of Streets and Highways Code Section 3012. Section 7: The recitals provided in this resolution are true and correct and are incorporated into the operative part of this resolution. Section 8: This resolution shall take effect immediately upon its adoption by the City Council, and the City Clerk shall certify the vote adopting the resolution. ADOPTED this 23rd day of February, 2021. Brad Avery, Mayor ATTEST: Leilani I. Brown City Clerk APPROVED AS TO (FORM: CI ATTORNEY'S OTE o..�--- C. Aa on C. Harp City Attorney Attachment: Exhibit A - Certificate of Sufficiency of Petition -2- 6-6 CERTIFICATE OF SUFFICIENCY OF PETITION STATE OF CALIFORNIA COUNTY OF ORANCE CITY OF NEWPORT BEACH The undersigned hereby CERTIFIES as follows: That I am the duly appointed ASSESSMENT ENGINEER of the CITY OF NEWPORT BEACH, CALIFORNIA. That on the I0`" day of February, 2021, I reviewed a Petition for the formation of an Assessment District for certain public works of improvement, together with appurtenances, appurtenant work and acquisition, where necessary, in a special assessment district known and designated as ASSESSMENT DISTRICT NO. 124 (hereinafter referred to as the "Assessment District"), a copy of which is on file in the Office of the City Clerk. The undersigned hereby further specifically certifies as follows: 1. That I caused said Petition to be examined and my examination revealed that said Petition was signed by not less than five (5) owners of assessable land in the proposed Assessment District as shown by the last equalized assessment roll used by the City, owning lands constituting more than fifty percent (50%) of the area of all assessable lands within the proposed Assessment District, all as prescribed by Section 5896.6 of the Streets and Highways Code of the State of California. 2. Pursuant to the Special Assessment Investigation, Limitation and Majority Protest Act of 1931, that said Petition did represent xxxx-xxx and xxxxx-xxxxx hundredths of a percent (XX.XX%) of the assessable area of property within the proposed boundaries of the Assessment District. Executed this 10`x' day of February, 2021, at Irvine, California. Jeffrey M. Cooper, P.E. NV5, Inc. ASSESSMENT ENGINEER CITY OF NEWPORT BEACH STATE OF CALIFORNIA 6-7 It C PARCELS: 91 DISTANCE: TRENCH 2Q LATERALS: POWER POI N.T,S, ALL SECTIONS LEGEND POWER POLE TO BE REMOVED POWER LINE TO BE REMOVED >_ GUY WIRE TO BE REMOVED - - - - POWER LINE TO REMAIN POWER POLE TO REMAIN IN PLACE ASSESSMENT DISTRICT AREA BOUNDARY GUY WIRE TO REMAIN IN PLACE ON-SITE PARCEL }- C NEW RISER POLE ---------- OFF-SITE PARCELS CITY OF NEWPORT BEACH ASSESSMENT DISTRICT - 124 CENTRAL BALBOA ISLAND • i t��WPORT ATTACHMENT C e City of Newport Beach BUDGET AMENDMENT "�Foa"P 2020-21 BA#: 21-031 Department: Public Works ONETIME: F Yes ❑ No Requestor: Angela Crespi Approvals ❑ CITY MANAGER'S APPROVAL ONLY Finance Director: Date 0 COUNCIL APPROVAL REQUIRED City Clerk: Date EXPLANATION FOR REQUEST: To increase expenditure appropriations from Assessment District #124 with an advance from General Fund ❑ from existing budget appropriations unappropriated fund balance for the engineering design work. In the event that formation of the District is ❑ from additional estimated revenues successful, these costs will be reimbursed by cash contributions and bond proceeds. The General Fund will be El from unappropriated fund balance responsible for the costs incurred if project formation is not successful. REVENUES Fund # Org Object Project Description Increase or Decrease $ 675 167599 691010 - TRANSFER IN GENERAL FUND 135,000.00 EXPENDITURES Fund # Org 675 167502 Object _ Protect 1941006 Description AD #124 -AD ASSESSMENT ENGINEERING Subtotal $ 135,000.00 _ Increase or Decrease $ 135,000.00 010 01099 991675 GENERAL FUND INTERFUND TRANSFR - 135,000.00 FUND BALANCE Fund # Object 010 300000 Description General Fund - FUND BALANCE CONTROL Subtotal $ 270,000.00 Increase or Decrease $ (135,000.00 _a Subtotal $ (135,000.00)1 Fund Balance Change Required 6-9 ATTACHMENT D PROFESSIONAL SERVICES AGREEMENT WITH NV5, INC. FOR ASSESSMENT ENGINEERING SERVICES FOR UNDERGROUND UTILITY ASSESSMENT DISTRICT NO. 124 THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into as of this 23rd day of February, 2021 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and NV5, INC., a California corporation ("Consultant"), whose address is 163 Technology Drive, Suite 100, Irvine, California 92618, and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City desires to engage Consultant to provide assessment engineering services for Underground Utility Assessment District No. 124 ("Project"). C. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the professional services described in this Agreement. D. 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 Effective Date, and shall terminate on June 30, 2023, 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 ("Services" or "Work"). City may elect to delete certain Services within the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE 3.1 Time is of the essence in the performance of Services under this Agreement and Consultant shall perform the Services in accordance with the schedule included in Exhibit A. In the absence of a specific schedule, the Services shall be performed to 6-10 completion in a diligent and timely manner. The failure by Consultant to strictly adhere to the schedule set forth in Exhibit A, if any, or perform the Services in a diligent and timely manner may result in termination of this Agreement by City. 3.2 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 within two (2) calendar days of the occurrence causing the delay to the other party so that all delays can be addressed. 3.3 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator as defined herein 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. 3.4 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by hand -delivery or mail. 4. COMPENSATION TO CONSULTANT 4.1 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 One Hundred Thirty Four Thousand Three Hundred Ninety Dollars and 00/100 ($134,390.00), 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. 4.2 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) calendar days after approval of the monthly invoice by City staff. 4.3 City shall reimburse Consultant only for those costs or expenses specifically identified in Exhibit B to this Agreement or specifically approved in writing in advance by City. 4.4 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. NV5, Inc. Page 2 6-11 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 5.1 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 Jeff Cooper, 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. 5.2 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. 5.3 If Consultant is performing inspection services for City, the Project Manager and any other assigned staff shall be equipped with a cellular phone to communicate with City staff. The Project Manager's cellular phone number shall be provided to City. 6. ADMINISTRATION This Agreement will be administered by the Public Works Department. City's Public Works Director or designee shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES To assist Consultant in the execution of its responsibilities under this Agreement, City agrees to 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. 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 and with the ordinary degree of skill and care that would be used by other reasonably competent practitioners of the same discipline under similar circumstances. All Services shall be performed by qualified and experienced personnel who are not employed by City. By delivery of completed Work, Consultant certifies that the Work conforms to the requirements of this Agreement, all applicable federal, state and local laws, and legally recognized professional standards. NV5, Inc. Page 3 6-12 8.2 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force and 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, 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. 9. HOLD HARMLESS 9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, employees and any person or entity owning or otherwise in legal control of the property upon which Consultant performs the Project and/or Services contemplated by this (collectively, the "Indemnified Parties"), from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorneys' fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim, collectively, "Claims"), and which relate (directly or indirectly) to the negligence, recklessness, or willful misconduct of the Consultant or its principals, officers, agents, employees, vendors, suppliers, subconsultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable, or any or all of them. 9.2 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 attorneys' fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the 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. No civil service status or other right of employment shall accrue to Consultant or its employees. 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 NV5, Inc. Page 4 6-13 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 of the Work 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 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 or for other periods as specified in this Agreement, policies of insurance of the type, amounts, terms and conditions described in the Insurance Requirements attached hereto as Exhibit C, and incorporated herein by reference. 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 co -tenancy, 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. NV5, Inc. Page 5 6-14 16. SUBCONTRACTING The subcontractors authorized by City, if any, to perform Work on this Project are identified in Exhibit A. Consultant shall be fully responsible to City for all acts and omissions of any subcontractor. Nothing in this Agreement shall create any contractual relationship between City and any subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. City is an intended beneficiary of any Work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and City. Except as specifically authorized herein, the Services to be provided under this Agreement shall not be otherwise assigned, transferred, contracted or subcontracted out without the prior written approval of City. 17. OWNERSHIP OF DOCUMENTS 17.1 Each and every report, draft, map, record, plan, document and other writing produced, including but not limited to, websites, blogs, social media accounts and applications (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. Additionally, all material posted in cyberspace 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, including all logins and password information to City upon prior written request. 17.2 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. 17.3 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 NV5, Inc. Page 6 6-15 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 the City in .dwg file format, on a CD, and should comply with the City's digital submission requirements for improvement plans available from the City's Public Works Department. The City will provide Consultant with City title sheets as AutoCAD file(s) in .dwg file format. All written documents shall be transmitted to City in formats compatible with Microsoft Office and/or viewable with Adobe Acrobat. 17.4 All improvement and/or construction plans shall be prepared with indelible waterproof ink or electrostatically plotted on standard twenty-four inch (24") by thirty-six inch (36") Mylar with a minimum thickness of three (3) mils. Consultant shall provide to City 'As -Built' drawings and a copy of digital Computer Aided Design and Drafting ("CADD") and Tagged Image File Format (.tiff) files of all final sheets within ninety (90) days after finalization of the Project. For more detailed requirements, a copy of the City of Newport Beach Standard Design Requirements is available from the City's Public Works Department. 18. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents the Consultant's 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 Consultant or contractor bids or actual cost to City. 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 expressly authorizes in writing the release of information. 20. INTELLECTUAL PROPERTY INDEMNITY Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement or alleged infringement of any United States' letters patent, trademark, or copyright, including costs, contained in Consultant's Documents provided under this Agreement. 21. RECORDS Consultant shall keep records and invoices in connection with the Services 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 NV5, Inc. Page 7 6-16 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. 22. 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 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. 23. 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 Section is intended to limit City's rights under the law or any other sections of this Agreement. 24. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 25. CONFLICTS OF INTEREST 25.1 Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act") and/or Government Code §§ 1090 et seq., which (1) require such persons to disclose any financial interest that may foreseeably be materially affected by the Work performed under this Agreement, and (2) prohibit such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 25.2 If subject to the Act and/or Government Code §§ 1090 et seg., Consultant shall conform to all requirements therein. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 26. NOTICES 26.1 All notices, demands, requests or approvals, including any change in mailing address, to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third NV5, Inc. Page 8 6-17 business day after the deposit thereof in the United States mail, postage prepaid, first- class mail, addressed as hereinafter provided. 26.2 All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Public Works Director Public Works Department City of Newport Beach 100 Civic Center Drive PO Box 1768 Newport Beach, CA 92658 26.3 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at- Attn: Jeff Cooper, P.E. NV5, Inc. 163 Technology Drive, Suite 100 Irvine, CA 92618 27. CLAIMS Unless a shorter time is specified elsewhere in this Agreement, before making its final request for payment under this Agreement, Consultant shall submit to City, in writing, all claims for compensation under or arising out of this Agreement. Consultant's acceptance of the final payment shall constitute a waiver of all claims for compensation under or arising out of this Agreement except those previously made in writing and identified by Consultant in writing as unsettled at the time of its final request for payment. Consultant and City expressly agree that in addition to any claims filing requirements set forth in the Agreement, Consultant shall be required to file any claim Consultant may have against City in strict conformance with the Government Claims Act (Government Code sections 900 et seq.). 28. TERMINATION 28.1 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. 28.2 Notwithstanding the above provisions, City shall have the right, at its sole and absolute discretion and without cause, of terminating this Agreement at any time by NV5, Inc. Page 9 6-18 giving no less than seven (7) calendar days' prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for Services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 29. STANDARD PROVISIONS 29.1 Recitals. City and Consultant acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. 29.2 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. 29.3 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. 29.4 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. 29.5 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. 29.6 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. 29.7 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. 29.8 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. 29.9 Controlling Law and Venue. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this NV5, Inc. Page 10 6-19 Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of California. 29.10 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 race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, sexual orientation, age or any other impermissible basis under law. 29.11 No Attorneys' Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. 29.12 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. [SIGNATURES ON NEXT PAGE] NV5, Inc. Page 11 6-20 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: 4z Z By: A64 C. Harp City Attorney ATTEST: Date: CITY OF NEWPORT BEACH, a California municipal corporation Date: Bv: Brad Avery Mayor CONSULTANT: corporation Date: NV5, Inc., a California Leilani I. Brown Jeffrey M. Cooper City Clerk Director of Infrastructure Date: By: Mary Jo O'Brien Secretary [END OF SIGNATURES] Attachments: Exhibit A - Scope of Services Exhibit B - Schedule of Billing Rates Exhibit C - Insurance Requirements NV5, Inc. - - - Page 12 6-21 EXHIBIT A SCOPE OF SERVICES NV5, Inc. Page A-1 6-22 EXHIBIT A SCOPE OF SERVICES ASSESSMENT ENGINEERING SERVICES FOR UNDERGROUND UTILITY ASSESSMENT DISTRICT NO. 124 Consultant shall complete the following Scope of Work commencing at the point at which sufficient petitions requesting the formation of Utility Undergrounding Assessment District No. 124 (See attached Map) have been received by the City - 1 . ity: 1. Assist bond attorney and City staff in establishing a project schedule. 2. Attend utility coordination meetings on an as -needed basis. Coordinate between City and property owners as required (assume 3 meetings). 3. Assist the City in preparing the Engineer's Estimate of Proposed Underground Systems for SCE, AT&T and CAN facilities. Break down the cost into bid items including but not limited to: hand hold boxes, vaults, vents, steel poles, conduit, dewatering, trenching and pavement restoration. 4. Prepare Boundary Map of assessment district. 5. Prepare Preliminary Engineer's Report, which will include the following: 1931 Act information and tables • Plans and specifications (by reference) • Description of works of improvement • Preliminary and Final estimate of costs with and without ITCC (Income Tax Component of Contribution) • Assessment diagram • Method of assessment spread • Assessment roll with preliminary assessments • Right -of -Way Certificate (executed by Superintendent of Streets) • Certification of Completion (executed by Director of Public Works) 6. File Preliminary Engineer's Report with Superintendent of Streets. 7. Attend City Council meeting at which Resolution of Intention is adopted, Preliminary Engineer's Report is approved, and Public Hearing is set. Answer questions as necessary. 8. Prepare boundary map for recordation at the Orange County Recorder's Office. Record map and obtain certified copies for the City. 9. Print and mail Resolution of Intention, preliminary assessment amount, and time and place of Public Hearing to each assessed property owner of record, as required by 1913 Act proceedings (contents of notice will be provided by bond counsel). Prepare written declaration that this has been done. Prepare replacement ballots as needed. 6-23 10. Prepare Amended Engineer's Report in which the confirmed assessment spread is based on final approved estimate of fees to be financed, including incidental costs and financing costs. 11. File Amended/Confirmed Engineers Report with the Superintendent of Streets. 12.Attend property owner information meeting(s) to discuss preliminary assessments. 13.Attend Public Meeting and Public Hearing, at City Council meetings and make presentations as required. There may be up to five (5) public information meetings due to the size of this district. 14. Count ballots received and enter the results, by financial obligation, to determine the percentage protest. The ballots are weighted by "financial obligation" or by the amount of the property's assessment. All ballots must be returned prior to the close of the public hearing. Result of tabulation may be continued to the next City Council Meeting. 15. Prepare assessment diagram for recordation at the Orange County Recorder's Office. Record diagram and obtain certified copies for the City. NPS PARCELS: 9E DISTANCE: -RENCH 20, .ATTRALS: 7 POWER PO Au SECTIONS LEGEND POWER POLE'O BE REMOYEp POIYCR _INE -0 BE REMOVED GUY WIRE TO OF RE MOVED - - - -POWER :INE -0 REMAIN POWER POLE -0 REMAIN IN PLACE ASSESSMENT DISTRICT AREA 9ODNDARY GUY WIRE TO REMAIN 1% PLACE ON-SITE PARCEL C NEW RISER DOLE OFF-SITE PARCES CITY OF NEWPORT BEACH ASSESSMENT DISTRICT - 124 CEN -RA; 9ALSOA ISLAND 6-24 EXHIBIT B SCHEDULE OF BILLING RATES NV5, Inc. Page B-1 6-25 EXHIBIT B SCHEDULE OF BILLING RATES ASSESSMENT ENGINEERING SERVICES FOR UNDERGROUND UTILITY ASSESSMENT DISTRICT NO. 124 �i i ASSESSMENT CADD DESIGNER PROJECT ADMIN TASK ENGINEER ANALYST TOTAL WORK DESCRIPTION FEE NO $240 $125 5125 $105 HOURS S HOURS $ HOURS $ HOURSI S 1.0 Assist bond attorney and City staff in establishing a project schedule 2 $480 SO SO $0 $480 20 Attend utility coardin ion meebngs on an as,neededbasis_ Coordinate between 20 $4,800 SO s0 $0 $4.800 C ty and property owners as required (assume 3 meetings) 30 Assist the City in preparing Engineers Estimate of Proposed Underground tti $3.840 8 $1,000 SO $0 $4840 Systems 4.0 Prepare Boundary Map of assessment district 4 S960 40 S5,000 4 $500 $0 $6,460 5.0 Prepare Preliminary Engineers Report 120 $28,80C 20 S2.500 50 $6,250 60 $6,300 543,850 60 File Preliminary Engineers Report wth Superintendent of Streets 2 5480 SO s0 $0 $480 Attend City Council meeting at wtdch Resolution of Intention is adopted, 70 Preliminary Engineer's Report rs approved, and Public Hearing is set Answer 4 5960 SO SO $0 $960 questions as necessary 30 Prepare boundary map for recordation at Orange County Recorders Ofhce 2 5480 4 5500 s0 4 $420 $1400 Pnnt and mail Resolutnn of Intention, preliminary assessment amount, and time 9.o and place of Public Hearing as required by 1913 Act proceedings Prepare vmtten 40 $9,600 SO 40 $5,000 160 $16.600 S31,400 declaration Thal chis has been done Prepare replacement ballots as needed 100 Prepare Amended Engineers Report 4 $960 8 S1,000 SO 8 S940 52,800 11.0 File AmendedlConfirmed Engineers Report wrth the Supernterident of Streets 2 5480 SO s0 $0 $480 12.0 Attend property owner information meelmg(s) 24 55.760 SO SO 12 $1,260 $7,020 13.0 Attend Public Meeting and Public Hearing, at City Council meetings and make 40 $9.600 S0 so 8 S840 S10,440 presentations as required (up to 5) 140 Count ballots received and enter the results, by financial obligation, to determine 16 $3,840 SO 16 $2,000 16 $1680 $7,520 the percentage protest 150 Prepaie assessment diegiani fur recordatwn at Oraixle County Recuiders Office 4NS960q120$15,ODO 5,000 4 $500 $0 S6 4Subtotal 300 114 $14,250 268 $28,140 1 $129,390 Miscellaneous Expenses $5,000 TOTALFEE $134,390 �i i EXHIBIT C INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES 1. Provision of 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, policies of insurance of the type and amounts described below and in a form satisfactory to City. Consultant agrees to provide insurance in accordance with requirements set forth here. If Consultant uses existing coverage to comply and that coverage does not meet these requirements, Consultant agrees to amend, supplement or endorse the existing coverage. 2. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 3. Coverage Requirements. A. Workers' Compensation Insurance. Consultant shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its City Council, boards and commissions, officers, agents, volunteers, employees and any person or entity owning or otherwise in legal control of the property upon which Consultant performs the Project and/or Services contemplated by this Agreement. B. General Liability Insurance. Consultant shall maintain commercial general liability insurance, and if necessary umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) general aggregate. The policy shall cover liability arising from premises, operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract). C. Automobile Liability Insurance. Consultant shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of Consultant arising out of or in connection with Work to be performed under this NV5, Inc. Page C-1 6-27 Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit each accident. D. Professional Liability (Errors & Omissions) Insurance. Consultant shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of one million dollars ($1,000,000) per claim and two million dollars ($2,000,000) in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the Effective Date of this Agreement and Consultant agrees to maintain continuous coverage through a period no less than three years after completion of the Services required by this Agreement. 4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: A. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its City Council, boards and commissions, officers, agents, volunteers, employees and any person or entity owning or otherwise in legal control of the property upon which Consultant performs the Project and/or Services contemplated by this Agreement or shall specifically allow Consultant or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its subconsultants. B. Additional Insured Status. All liability policies including general liability, excess liability, pollution liability, and automobile liability, if required, but not including professional liability, shall provide or be endorsed to provide that City, its City Council, boards and commissions, officers, agents, volunteers, employees and any person or entity owning or otherwise in legal control of the property upon which Consultant performs the Project and/or Services contemplated by this Agreement shall be included as insureds under such policies. C. Primary and Non Contributory. All liability coverage shall apply on a primary basis and shall not require contribution from any insurance or self-insurance maintained by City. D. Notice of Cancellation. All policies shall provide City with thirty (30) calendar days' notice of cancellation (except for nonpayment for which ten (10) calendar days' notice is required) or nonrenewal of coverage for each required coverage. 5. Additional Agreements Between the Parties. The parties hereby agree to the following: NV5, Inc. Page C-2 6.28 A. Evidence of Insurance. Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation and other endorsements as specified herein for each coverage. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least fifteen (15) days prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or reduced, Consultant shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies. City reserves the right to require complete, certified copies of all required insurance policies, at any time. B. City's Right to Revise Requirements. City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Consultant sixty (60) calendar days' advance written notice of such change. If such change results in substantial additional cost to Consultant, City and Consultant may renegotiate Consultant's compensation. C. Riqht to Review Subcontracts. Consultant agrees that upon request, all agreements with subcontractors or others with whom Consultant enters into contracts with on behalf of City will be submitted to City for review. Failure of City to request copies of such agreements will not impose any liability on City, or its employees. Consultant shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Consultant shall ensure that City is an additional insured on insurance required from subcontractors. For CGL coverage, subcontractors shall provide coverage with a format at least as broad as CG 20 38 04 13. D. Enforcement of Agreement Provisions. Consultant acknowledges and agrees that any actual or alleged failure on the part of City to inform Consultant of non-compliance with any requirement imposes no additional obligations on City nor does it waive any rights hereunder. E. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Consultant maintains higher NV5, Inc. Page C-3 6-29 limits than the minimums shown above, the City requires and shall be entitled to coverage for higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. F. Self-insured Retentions. Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self- insurance will not be considered to comply with these requirements unless approved by City. G. City Remedies for Non -Compliance. If Consultant or any subconsultant fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this Agreement, or to suspend Consultant's right to proceed until proper evidence of insurance is provided. Any amounts paid by City shall, at City's sole option, be deducted from amounts payable to Consultant or reimbursed by Consultant upon demand. H. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant's performance under this Agreement, and that involve or may involve coverage under any of the required liability policies. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. Consultant's 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. NV5, Inc. Page C-4 6-30