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.
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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.
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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-
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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
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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
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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