HomeMy WebLinkAbout12 - Underground Assessment District 94 - Pacific DriveCITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 12
April 13, 2004
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Public Works Department
Patrick Arciniega, Associate Engineer
949 - 644 -3311
parciniega @city. newpo rt-beach.ca. us
SUBJECT: REQUEST FOR FUNDING FOR PROPOSED UNDERGROUND
ASSESSMENT DISTRICT NO. 94 (PACIFIC DRIVE)
RECOMMENDATION:
Appropriate $19,035.00 for assessment engineering services of proposed Assessment
District No. 94 (Pacific Drive). The District's preliminary formation and design funding is
advanced from General Fund reserves unless the District is approved and formed by
voting property owners in which case the District is wholly funded by property owner
contributions.
DISCUSSION:
The property owners of Proposed Underground Assessment District No. 94 have
submitted petitions to the City requesting a special Assessment District be formed to
finance and underground overhead utilities. The boundaries of the proposed District are
shown on Exhibit "A ".
One of the initial steps in the district formation process is the circulation of the Petition for
Special Assessment Proceedings. Proponents of the District circulated the petitions to the
property owners and have submitted the signed petitions to the City. The submitted
signatures represent approximately 61 percent (61%) of the assessable area within the
proposed District. The City's guidelines require a minimum of 60 percent (60 %) in favor of
the District in order to proceed with the formation of a District. In anticipation that the District
would move forward, staff called for proposals from qualified firms to provide Assessment
Engineering services. Staff negotiated a not to exceed fee of $19,035.00 with the firm of
MuniFinancial.
The assessment engineering services to be provided by MuniFinancial are detailed in the
attached Professional Services Agreement and include identifying, analyzing, and
determining the correct apportionment of costs in addition to preparing the Assessment
Engineer's Report. MuniFinancial will also prepare the voting ballots in accordance with
the requirements of Proposition 218. The ballots are weighted by "financial obligation"
(the amount of the property's assessment). The District formation proceedings are
SUBJECT: Request For Funding For Proposed Underground Assessment District No. 94 (Pacific Drive)
April 13, 2004
Page 2
pursuant to the "Municipal Improvement Act of 1913" (Division 12 of the Streets and
Highways Code of the State of California). Bonds will be sold pursuant to the
"Improvement Bond Act of 1915," Division 10 of said Code.
Environmental Review:
This project qualifies for a Class 2 California Environmental Quality Act (CEQA) exemption
under Section 15302, item "d" of the Implementing Guidelines as follows: "Conversion of
overhead electric utility distribution system facilities to underground including connection
to existing overhead electric utility distribution lines where the surface is restored to the
condition existing prior to the undergrounding."
Public Notice:
Not Applicable at this time.
Funding Availability:
Upon approval of the recommended Budget Amendment, sufficient funds are available in
the following account:
Description
74094 -9812
Prepared by:
Patrick L. Arciniega
Associate Engineer
Attachments: Exhibit "A ", Boundary
PSA — MuniFinancial
Budget Amendment
Account No. Amount
Assessment District No. 94 $19,035.00
Submitted by:
m G. Badum
Works Director
Map of Proposed District
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PROFESSIONAL SERVICES AGREEMENT WITH
MUNIFINANCIAL
FOR ENGINEERING SERVICES FOR THE
FORMATION OF ASSESSMENT DISTRICT NO. 94
THIS AGREEMENT is made and entered into as of this day of ,
2004, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation
( "City "), and MUNIFINANCIAL, a corporation whose address is 27368 Via Industria,
Suite 110, Temecula, California, 92590 ( "Consultant'), and is made with reference to
the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of City.
B. City is planning to form an Underground Utilities Assessment District No. 94
Pacific Drive.
C. City desires to engage Consultant to provide assessment engineering services
for the formation of the Underground Utilities Assessment District No. 94 Pacific
Drive ('Project').
D. Consultant possesses the skill, experience, ability, background, certification and
knowledge to provide the services described in this Agreement.
E. The principal members of Consultant for purposes of Project shall be Scott
Koppel and Dave Hunt.
F. City has solicited and received a proposal from Consultant, has reviewed the
previous experience and evaluated the expertise of Consultant, and desires to
retain Consultant to render professional services under the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
1. TERM
The term of this Agreement shall commence on the 2nd day of February, 2004, and
shall terminate on the 30th day of June, 2007, unless terminated earlier as set forth
herein.
2. SERVICES TO BE PERFORMED
Consultant shall diligently perform all the services described in the Scope of
Services attached hereto as Exhibit A and incorporated herein by reference. The
City may elect to delete certain tasks of the Scope of Services at its sole
discretion.
3. TIME OF PERFORMANCE
Time is of the essence in the performance of services under this Agreement and
the services shall be performed to completion in a diligent and timely manner.
The failure by Consultant to perform the services in a diligent and timely manner
may result in termination of this Agreement by City.
Notwithstanding the foregoing, Consultant shall not be responsible for delays due
to causes beyond Consultant's reasonable control. However, in the case of any
such delay in the services to be provided for the Project, each party hereby
agrees to provide notice to the other party so that all delays can be addressed.
3.1 Consultant shall submit all requests for extensions of time for performance
in writing to the Project Administrator not later than ten (10) calendar days
after the start of the condition that purportedly causes a delay. The
Project Administrator shall review all such requests and may grant
reasonable time extensions for unforeseeable delays that are beyond
Consultant's control.
3.2 For all time periods not specifically set forth herein, Consultant shall
respond in the most expedient and appropriate manner under the
circumstances, by either telephone, fax, hand - delivery or mail.
4. COMPENSATION TO CONSULTANT
City shall pay Consultant for the services on a time and expense not -to- exceed
basis in accordance with the provisions of this Section and the Schedule of
Billing Rates attached hereto as Exhibit B and incorporated herein by reference.
In no event shall Consultant's compensation exceed Nineteen Thousand
Thirty -Five Dollars and no1100 ($19,035.00) without additional authorization
from City. No billing rate changes shall be made during the term of this
Agreement without the prior written approval of City.
4.1 Consultant shall submit monthly invoices to City describing the work
performed the preceding month. Consultant's bills shall include the name
of the person who performed the work, a brief description of the services
performed and /or the specific task in the Scope of Services to which it
relates, the date the services were performed, the number of hours spent
on all work billed on an hourly basis, and a description of any
reimbursable expenditures. City shall pay Consultant no later than thirty
(30) days after approval of the monthly invoice by City staff.
4.2 City shall reimburse Consultant only for those costs or expenses
specifically approved in this Agreement, or specifically approved in
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advance by City. Unless otherwise approved, such costs shall be limited
and include nothing more than the following costs incurred by Consultant: •
A. The actual costs of subconsultants for performance of any of the
services that Consultant agrees to render pursuant to this
Agreement, which have been approved in advance by City and
awarded in accordance with this Agreement.
B. Approved reproduction charges.
C. Actual costs and/or other costs and/or payments specifically
authorized in advance in writing and incurred by Consultant in the
performance of this Agreement.
4.3 Consultant shall not receive any compensation for Extra Work without the
prior written authorization of City. As used herein, "Extra Work" means
any work that is determined by City to be necessary for the proper
completion of the Project, but which is not included within the Scope of
Services and which the parties did not reasonably anticipate would be
necessary at the execution of this Agreement. Compensation for any
authorized Extra Work shall be paid in accordance with the Schedule of
Billing Rates as set forth in Exhibit B.
4.4 Notwithstanding any other provision of this Agreement, when payments
made by City equal 90% of the maximum fee provided for in this
Agreement, no further payments shall be made until City has accepted the
final work under this Agreement.
5. PROJECT MANAGER
Consultant shall designate a Project Manager, who shall coordinate all phases of
the Project. This Project Manager shall be available to City at all reasonable times
during the Agreement term. Consultant has designated Scott Koppel to be its
Project Manager. Consultant shall not remove or reassign the Project Manager or
any personnel listed in Exhibit A or assign any new or replacement personnel to the
Project without the prior written consent of City. City's approval shall not be
unreasonably withheld with respect to the removal or assignment of non -key
personnel.
Consultant, at the sole discretion of City, shall remove from the Project any of its
personnel assigned to the performance of services upon written request of City.
Consultant warrants that it will continuously furnish the necessary personnel to
complete the Project on a timely basis as contemplated by this Agreement.
6. ADMINISTRATION
This Agreement will be administered by the Public Works Department. Patrick
Arciniega shall be the Project Administrator and shall have the authority to act
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for City under this Agreement. The Project Administrator or his /her authorized
representative shall represent City in all matters pertaining to the services to be
rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
In order to assist Consultant in the execution of its responsibilities under this
Agreement, City agrees to, where applicable:
A. Provide access to, and upon request of Consultant, one copy of all
existing relevant information on file at City. City will provide all such
materials in a timely manner so as not to cause delays in Consultant's
work schedule.
B. Provide blueprinting and other services through City's reproduction
company for bid documents. Consultant will be required to coordinate the
required bid documents with City's reproduction company. All other
reproduction will be the responsibility of Consultant and as defined above.
C. Provide usable life of facilities criteria and information with regards to new
facilities or facilities to be rehabilitated.
8. STANDARD OF CARE
. 8.1 All of the services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and
technical personnel required to perform the services required by this
Agreement, and that it will perform all services in a manner commensurate
with community professional standards. All services shall be performed
by qualified and experienced personnel who are not employed by City, nor
have any contractual relationship with City.
8.2 Consultant represents and warrants to City that it has or shall obtain all
licenses, permits, qualifications, insurance and approvals of whatsoever
nature that are legally required of Consultant to practice its profession.
Consultant further represents and warrants to City that Consultant shall, at
its sole cost and expense, keep in effect or obtain at all times during the
term of this Agreement, any and all licenses, permits, insurance and other
approvals that are legally required of Consultant to practice its profession.
Consultant shall maintain a City of Newport Beach business license during
the term of this Agreement.
8.3 Consultant shall not be responsible for delay, nor shall Consultant be
responsible for damages or be in default or deemed to be in default by
reason of strikes, lockouts, accidents, or acts of God, or the failure of City
• to furnish timely information or to approve or disapprove Consultant's work
promptly, or delay or faulty performance by City, contractors, or
governmental agencies.
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8.4 The term Construction Management or Construction Manager does not
imply that Consultant is engaged in any aspect of the physical work of
construction contracting. Consultant shall not have control over or be in
charge of and shall not be responsible for the project's design, City's
project contractor ( "Contractor"), construction means, methods,
techniques, sequences or procedures, or for any health or safety
precautions and programs in connection with the work. These duties are
and shall remain the sole responsibility of the Contractor. Consultant shall
not be responsible for the Contractors' schedules or failure to carry out the
work in accordance with the contract documents. Consultant shall not
have control over or be responsible for acts or omissions of City, Design
Engineer, Contractor, Subcontractors, or their Agents or employees, or of
any other persons performing portions of the work.
9. HOLD HARMLESS
To the fullest extent permitted by law, Consultant shall indemnify, defend and
hold harmless City, its City Council, boards and commissions, officers, agents
and employees (collectively, the "Indemnified Parties) from and against any and
all claims (including, without limitation, claims for bodily injury, death or damage
to property), demands, obligations, damages, actions, causes of action, suits,
losses, judgments, fines, penalties, liabilities, costs and expenses (including,
without limitation, attorney's fees, disbursements and court costs) of every kind
and nature whatsoever (individually, a Claim; collectively, "Claims "), which may .
arise from or in any manner relate (directly or indirectly) to any work negligently
performed or services provided under this Agreement (including, without
limitation, defects in workmanship or materials and /or design defects [if the
design originated with Consultant]) or Consultant's presence or activities
conducted on the Project (including the negligent and /or wrongful acts, errors
and /or omissions of Consultant, its principals, officers, agents, employees,
vendors, suppliers, consultants, subcontractors, anyone employed directly or
indirectly by any of them or for whose acts they may be liable or any or all of
them).
Notwithstanding the foregoing, nothing herein shall be construed to require
Consultant to indemnify the Indemnified Parties from any Claim arising from the
active negligence or willful misconduct of the Indemnified Parties. Nothing in this
indemnity shall be construed as authorizing any award of attorney's fees in any
action on or to enforce the terms of this Agreement. This indemnity shall apply to
all claims and liability regardless of whether any insurance policies are
applicable. The policy limits do not act as a limitation upon the amount of
indemnification to be provided by the Consultant.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor basis and
Consultant is not an agent or employee of City. The manner and means of
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conducting the work are under the control of Consultant, except to the extent they
are limited by statute, rule or regulation and the expressed terms of this Agreement.
Nothing in this Agreement shall be deemed to constitute approval for Consultant or
any of Consultant's employees or agents, to be the agents or employees of City.
Consultant shall have the responsibility for and control over the means of
performing the work, provided that Consultant is in compliance with the terms of
this Agreement. Anything in this Agreement that may appear to give City the right
to direct Consultant as to the details of the performance or to exercise a measure of
control over Consultant shall mean only that Consultant shall follow the desires of
City with respect to the results of the services.
11. COOPERATION
Consultant agrees to work closely and cooperate fully with City's designated Project
Administrator and any other agencies that may have jurisdiction or interest in the
work to be performed. City agrees to cooperate with the Consultant on the Project.
12. CITY POLICY
Consultant shall discuss and review all matters relating to policy and Project
direction with City's Project Administrator in advance of all critical decision points
in order to ensure the Project proceeds in a manner consistent with City goals
and policies.
13. PROGRESS
Consultant is responsible for keeping the Project Administrator and /or his /her
duly authorized designee informed on a regular basis regarding the status and
progress of the Project, activities performed and planned, and any meetings that
have been scheduled or are desired.
14. INSURANCE
Without limiting Consultant's indemnification of City, and prior to commencement
of work. Consultant shall obtain, provide and maintain at its own expense during
the term of this Agreement, a policy or policies of liability insurance of the type
and amounts described below and in a form satisfactory to City.
A. Certificates of Insurance. Consultant shall provide certificates of
insurance with original endorsements to City as evidence of the insurance
coverage required herein. Insurance certificates must be approved by
City's Risk Manager prior to commencement of performance or issuance
of any permit. Current certification of insurance shall be kept on file with
City at all times during the term of this Agreement.
B. Signature. A person authorized by the insurer to bind coverage on its
behalf shall sign certification of all required policies.
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C. Acceptable Insurers. All insurance policies shall be issued by an
insurance company currently authorized by the Insurance Commissioner
to transact business of insurance in the State of California, with an
assigned policyholders' Rating of A (or higher) and Financial Size
Category Class VII (or larger) in accordance with the latest edition of
Best's Key Rating Guide, unless otherwise approved by the City's Risk
Manager.
D. Coveraqe Requirements.
Workers' Compensation Coverage. Consultant shall maintain
Workers' Compensation Insurance and Employer's Liability
Insurance for his or her employees in accordance with the laws of
the State of California. In addition, Consultant shall require each
subcontractor to similarly maintain Workers' Compensation
Insurance and Employer's Liability Insurance in accordance with
the laws of the State of California for all of the subcontractor's
employees. Any notice of cancellation or non - renewal of all
Workers' Compensation policies must be received by City at least
thirty (30) calendar days prior to such change. The insurer shall
agree to waive all rights of subrogation against City, its officers,
agents, employees and volunteers for losses arising from work
performed by Consultant for City.
ii. General Liability Coverage. Consultant shall maintain commercial
general liability insurance in an amount not less than one million
dollars ($1,000,000) per occurrence for bodily injury, personal
injury, and property damage, including without limitation,
contractual liability. If commercial general liability insurance or
other form with a general aggregate limit is used, either the general
aggregate limit shall apply separately to the work to be performed
under this Agreement, or the general aggregate limit shall be at
least twice the required occurrence limit.
iii. Automobile Liability Coverage. Consultant shall maintain
automobile insurance covering bodily injury and property damage
for all activities of the Consultant arising out of or in connection with
work to be performed under this Agreement, including coverage for
any owned, hired, non -owned or rented vehicles, in an amount not
less than one million dollars ($1,000,000) combined single limit for
each occurrence.
iv. Professional Errors and Omissions Insurance. Consultant shall
maintain professional errors and omissions insurance, which covers
the services to be performed in connection with this Agreement in
the minimum amount of one million dollars ($1,000,000). •
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E. Endorsements. Each general liability and automobile liability insurance
policy shall be endorsed with the following specific language:
i. The City, its elected or appointed officers, officials, employees,
agents and volunteers are to be covered as additional insureds with
respect to liability arising out of work performed by or on behalf of
the Consultant.
ii. This policy shall be considered primary insurance as respects to
City, its elected or appointed officers, officials, employees, agents
and volunteers as respects to all claims, losses, or liability arising
directly or indirectly from the Consultant's operations or services
provided to City. Any insurance maintained by City, including any
self- insured retention City may have, shall be considered excess
insurance only and not contributory with the insurance provided
hereunder.
iii. This insurance shall act for each insured and additional insured as
though a separate policy had been written for each, except with
respect to the limits of liability of the insuring company.
iv. The insurer waives all rights of subrogation against City, its elected
or appointed officers, officials, employees, agents and volunteers.
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V. Any failure to comply with reporting provisions of the policies shall
not affect coverage provided to City, its elected or appointed
officers, officials, employees, agents or volunteers.
vi. The insurance provided by this policy shall not be suspended,
voided, canceled, or reduced in coverage or in limits, by either party
except after thirty (30) calendar days written notice has been
received by City, ten (10) days notice if cancellation is due to
nonpayment of premium.
F. Timely Notice of Claims. Consultant shall give City prompt and timely
notice of claim made or suit instituted arising out of or resulting from
Consultant's performance under this Agreement.
G. Additional Insurance. Consultant shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of
the work.
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Any of the following
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shall be construed as an assignment: The sale, assignment, transfer or other
disposition of any of the issued and outstanding capital stock of Consultant, or of
the interest of any general partner or joint venturer or syndicate member or
cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy,
which shall result in changing the control of Consultant. Control means fifty
percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more
of the assets of the corporation, partnership or joint- venture.
16. SUBCONTRACTING
City and Consultant agree that subconsultants may be used to complete the work
outlined in the Scope of Services. The subconsultants authorized by City to
perform work on this Project are identified in Exhibit A. Consultant shall be fully
responsible to City for all acts and omissions of the subcontractor. Nothing in this
Agreement shall create any contractual relationship between City and
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. 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
Each and every report, draft, map, record, plan, document and other writing
produced (hereinafter "Documents "), prepared or caused to be prepared by
Consultant, its officers, employees, agents and subcontractors, in the course of
implementing this Agreement, shall become the exclusive property of City, and
City shall have the sole right to use such materials in its discretion without further
compensation to Consultant or any other party. Consultant shall, at Consultant's
expense, provide such Documents to City upon prior written request.
Documents, including drawings and specifications, prepared by Consultant
pursuant to this Agreement are not intended or represented to be suitable for
reuse by City or others on any other project. Any use of completed Documents
for other projects and any use of incomplete Documents without specific written
authorization from Consultant will be at City's sole risk and without liability to
Consultant. Further, any and all liability arising out of changes made to
Consultant's deliverables under this Agreement by City or persons other than
Consultant is waived against Consultant and City assumes full responsibility for
such changes unless City has given Consultant prior notice and has received
from Consultant written consent for such changes.
18. COMPUTER DELIVERABLES
CADD data delivered to City shall include the professional stamp of the engineer or
architect in charge of or responsible for the work. City agrees that Consultant shall
not be liable for claims, liabilities or losses arising out of, or connected with (a) the
modification or misuse by City, or anyone authorized by City, of CADD data; (b) the
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decline of accuracy or readability of CADD data due to inappropriate storage
conditions or duration; or (c) any use by City, or anyone authorized by City, of
CADD data for additions to this Project, for the completion of this Project by others,
or for any other Project, excepting only such use as is authorized, in writing, by
Consultant. By acceptance of CADD data, City agrees to indemnify Consultant for
damages and liability resulting from the modification or misuse of such CADD data.
All original drawings shall be submitted to City in the version of AutoCAD used by
City in ".dwg" file format on a CD, and should comply with the City's digital
submission requirements for Improvement Plans. The City will provide Auto CAD
file of City Title Sheets. All written documents shall be transmitted to City in the
City's latest adopted version of Microsoft Word and Excel.
19. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the services in this Agreement, shall be kept
confidential unless City authorizes in writing the release of information.
20. OPINION OF COST
Any opinion of the construction cost prepared by Consultant represents his /her
judgment as a design professional and is supplied for the general guidance of
City. Since Consultant has no control over the cost of labor and material, or over
competitive bidding or market conditions, Consultant does not guarantee the
accuracy of such opinions as compared to contractor bids or actual cost to City.
21. INTELLECTUAL PROPERTY INDEMNITY
The Consultant shall defend and indemnify City, its agents, officers, representatives
and employees against any and all liability, including costs, for infringement of any
United States' letters patent, trademark, or copyright infringement, including costs,
contained in Consultant's drawings and specifications provided under this
Agreement.
22. RECORDS
Consultant shall keep records and invoices in connection with the work to be
performed under this Agreement. Consultant shall maintain complete and accurate
records with respect to the costs incurred under this Agreement and any services,
expenditures and disbursements charged to City, for a minimum period of three (3)
years, or for any longer period required by law, from the date of final payment to
Consultant under this Agreement. All such records and invoices shall be clearly
identifiable. Consultant shall allow a representative of City to examine, audit and
make transcripts or copies of such records and invoices during regular business
hours. Consultant shall allow inspection of all work, data, Documents, proceedings
and activities related to the Agreement for a period of three (3) years from the date
of final payment to Consultant under this Agreement.
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23. WITHHOLDINGS
City may withhold payment to Consultant of any disputed sums until satisfaction
of the dispute with respect to such payment. Such withholding shall not be
deemed to constitute a failure to pay according to the terms of this Agreement.
Consultant shall not discontinue work as a result of such withholding. Consultant
shall have an immediate right to appeal to the City Manager or his /her designee
with respect to such disputed sums. Consultant shall be entitled to receive
interest on any withheld sums at the rate of return that City earned on its
investments during the time period, from the date of withholding of any amounts
found to have been improperly withheld.
24. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result in expense to City greater than what
would have resulted if there were not errors or omissions in the work
accomplished by Consultant, the additional design, construction and /or
restoration expense shall be borne by Consultant. Nothing in this paragraph is
intended to limit City's rights under any other sections of this Agreement.
25. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the
Project.
26. CONFLICTS OF INTEREST
The Consultant or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act "), which (1) requires such
persons to disclose any financial interest that may foreseeably be materially
affected by the work performed under this Agreement, and (2) prohibits such
persons from making, or participating in making, decisions that will foreseeably
financially affect such interest.
If subject to the Act, Consultant shall conform to all requirements of the Act.
Failure to do so constitutes a material breach and is grounds for immediate
termination of this Agreement by City. Consultant shall indemnify and hold
harmless City for any and all claims for damages resulting from Consultant's
violation of this Section.
27. NOTICES
All notices, demands, requests or approvals to be given under the terms of this
Agreement shall be given in writing, to City by Consultant and conclusively shall
be deemed served when delivered personally, or on the third business day after
the deposit thereof in the United States mail, postage prepaid, first -class mail,
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addressed as hereinafter provided. All notices, demands, requests or approvals
• from Consultant to City shall be addressed to City at:
Attn: Patrick Arciniega, Associate Engineer
Public Works Department
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92663
Phone: 949 - 644 -3347
Fax: 949 - 644 -3318
All notices, demands, requests or approvals from City to Consultant shall be
addressed to Consultant at:
Attn: Scott Koppel, Principal Consultant
MuniFinancial
27368 Via Industria, Suite 110
Temecula, CA 92590
Phone: 909 - 587 -3500
Fax: 909 - 587 -3510
28. TERMINATION
. In the event that either party fails or refuses to perform any of the provisions of this
Agreement at the time and in the manner required, that party shall be deemed in
default in the performance of this Agreement. If such default is not cured within a
period of two (2) calendar days, or if more than two (2) calendar days are
reasonably required to cure the default and the defaulting party fails to give
adequate assurance of due performance within two (2) calendar days after receipt
of written notice of default, specifying the nature of such default and the steps
necessary to cure such default, the non - defaulting party may terminate the
Agreement forthwith by giving to the defaulting party written notice thereof.
Notwithstanding the above provisions, City shall have the right, at its sole
discretion and without cause, of terminating this Agreement at any time by giving
seven (7) calendar days prior written notice to Consultant. In the event of
termination under this Section, City shall pay Consultant for services satisfactorily
performed and costs incurred up to the effective date of termination for which
Consultant has not been previously paid. On the effective date of termination,
Consultant shall deliver to City all reports, Documents and other information
developed or accumulated in the performance of this Agreement, whether in draft
or final form.
29. COMPLIANCE WITH ALL LAWS
• Consultant shall at its own cost and expense comply with all statutes,
ordinances, regulations and requirements of all governmental entities, including
federal, state, county or municipal, whether now in force or hereinafter enacted.
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In addition, all work prepared by Consultant shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements and be
subject to approval of the Project Administrator and City. •
30. WAIVER
A waiver by either party of any breach, of any term, covenant or condition
contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether
of the same or a different character.
31. INTEGRATED CONTRACT
This Agreement represents the full and complete understanding of every kind or
nature whatsoever between the parties hereto, and all preliminary negotiations
and agreements of whatsoever kind or nature are merged herein. No verbal
agreement or implied covenant shall be held to vary the provisions herein.
32. CONFLICTS OR INCONSISTENCIES
In the event there are any conflicts or inconsistencies between this Agreement and
the Scope of Services or any other attachments attached hereto, the terms of this
Agreement.shall govern.
33. AMENDMENTS •
This Agreement may be modified or amended only by a written document executed
by both Consultant and City and approved as to form by the City Attorney.
c �y :kTJ :4 liltCA
If any term or portion of this Agreement is held to be invalid, illegal, or otherwise
unenforceable by a court of competent jurisdiction, the remaining provisions of this
Agreement shall continue in full force and effect.
35. CONTROLLING LAW AND VENUE
The laws of the State of California shall govern this Agreement and all matters
relating to it and any action brought relating to this Agreement shall be adjudicated
in a court of competent jurisdiction in the County of Orange.
36. EQUAL OPPORTUNITY EMPLOYMENT
Consultant represents that it is an equal opportunity employer and it shall not
discriminate against any subcontractor, employee or applicant for employment
because of race, religion, color, national origin, handicap, ancestry, sex or age.
•
13
I]
E
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
the day and year first written above.
APPROVED AS TO FORM:
City Attorney
for the City of Newport Beach
CITY OF NEWPORT BEACH,
A Municipal Corpora
Public Badum,
Works Director
for the City of Newport Beach
MUNIFINANCIAL:
B,L 2e Z
rank G. Tripepi �/
President & CEO, MuniFinancial
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
f:\usem \pbw\shared \agreements \master templates \blank -psa- clean- 120503.doc
14
0 MuniFinancial
Exhibit A
SCOPE OF SERVICES
MuniFinancial and Willdan will participate with the project team to provide the following
services.
District Formation Tasks
Task 1. KickojrMeeting
A. Attend initial kickoff meeting with city staff and consultants to discuss procedures and
responsibilities.
B. Assist city staff and the financing team in establishing a project schedule.
Task 2. Data Gathering
A. Gather information related to the project from the city, the County Assessor's Office and
Auditor- Controller's Office, the financial advisor, and the city's engineer. Information will
be gathered through meetings, correspondence, and follow -up phone calls to ensure
accuracy and completeness.
B. Review -the received property owner petitions to verify that they are valid and that there is
sufficient support to move fonvard vith the formation of an undergrounding assessment
district. Upon determination that sufficient petitions exist to proceed, execute Certificate
of Sufficiency of Petition.
C. Prepare a detailed parcel database showing assessor's parcel number, assessment number,
lot area, front footage, assessed land and structure values, county land use, development
status, ownership, property address, mailing address, and any other information necessary.
The database will be used to calculate each parcel's assessment amount and to prepare a
mailing list for balloting and notice requirements. Provide the city with an electronic file of
this data.
Task 3. Report Metbodology
A. Based on information gathered, prepare a preliminary assessment analysis. The analysis
will include assessment rates per land use comparisons, value to lien calculations, and
overlapping tax analyses.
1. We will prepare an assessment roll and related computations from our database
including:
a. Determining the boundary of the district, the assessor's parcels in the boundary
and assigning each parcel an assessment number;
b. Identifying the appropriate measurement factors on which to spread the
assessment lien and assigning factors to each parcel; 0
c. Computing the assessment lien for each parcel in the district based on the
factors assigned to each parcel and the improvement costs determined to be of
special benefit.
2. The assessment methodology will take into consideration the potential of land use,
density, and absorption changes from those projected. The assessment methodology
proposed will be designed to protect the bonds, as well as fairly assess properties
expected to be in the district.
B. Prepare an 18 -inch by 26 -inch boundary map that is suitable for recording, as well as in an
8 -inch by 11 -inch format that will include the following items:
I. Legal parcels that will exist at the time of district formation;
2. The assessor parcel numbers or tract and lot information for each parcel;
3. The distinction between the benefit boundary and the district boundary, if
necessary; and,
4. If necessary, the distinction between benefit zones.
C. Prepare an 18 -inch by 26 -inch assessment diagram that is suitable for recording, as well
as in an 8 -inch by I I -inch format that will include the following items:
I. Legal parcels that will exist at the time of district formation;
2. The assessor parcel numbers or tract and lot information for each parcel;
3. The assessment number assigned to each lot, corresponding to the assessment roll;
4. If necessary, the distinction between the benefit boundary and the district boundary;
and
5. If necessary, the distinction between benefit zones.
D. Based on input from the city, the city engineer, bond counsel, and our engineering
analysis of general and special benefit; determine the improvements to be included in
the district. Prepare a narrative description to be included in the engineer's report. If
required, additional improvement zones will be established and different methodologies
can be developed to address the benefit one area receives from improvements or
services that another area does not receive.
E. Prepare a cost estimate of the improvement items, incidentals and issuance costs related
to the district to be included in the engineer's report. The project cost estimate,
including incidentals, will be coordinated with the city engineer. The bond issuance
costs will be discussed with the team to insure all appropriate costs have been included
correctly; such as, capitalized interest, official statement printing, reserve fund level
and any required bond security.
F. Based on the boundaries of the district, develop the method of assessment, the
improvements to be funded, the proposed development, and any effective tax rate
limitations. To ensure all considerations have been addressed, the method \;till be discussed
udth the project team, and then finalized for the preliminary engineer's report and the final
engineer's report. The method will be devised to specifically address general benefit, the
special benefit that each parcel receives, the special and general benefit ascribed to public
agency parcels, and the effect, both financial and political, on the homeowner or secondary
property owners.
Task 4. Report Preparation
A. Compile items from Tasks 2 and 3 above into the preliminary, amended and final
engineer's reports and submit five (5) copies each for review and comment to city staff
and additional copies to the financing team. Submit up to ten (10) copies each of the
preliminary, amended and final engineer's reports to city staff for filing with the city
council. If requested, we will present the report to city council and field any questions
received at the public hearing. We will file the engineer's reports with the
Superintendent of Streets.
The engineer's reports will include the following components:
I . A description of the proposed public facilities to be funded;
2. Plans and specifications (or reference to those on file);
3. A detailed cost estimate of the proposed facilities, including estimates of bond
issuance and other incidentals costs; preliminary and final estimate of costs with
and without ITCC;
4. The assessment roll showing assessor number, parcel identification, and assessment
lien;
5. The method of assessment;
6. The assessment diagram;
7. The maximum annual administrative add -on assessment;
S. A right -of -way schedule indicating right -of -way still to be acquired (if necessary);
Right -of -Way Certificate; Certification of Completion;
9. 1931 Act information and tables; and
10. A public property schedule indicating the public property assessed in the district (if
necessary).
Task 5: Prepare Resolutions
1. Prepare intent meeting resolutions regarding the proposed assessment increase.
2. Prepare public hearing resolutions to be used if the assessment is approved and the
district if formed.
Task 6. Prepare and Mail Notices and Ballots; Count Ballots
Prepare and mail the legal notice of public hearing and the protest ballots to
conform to all current legislation. The legal notice will include the time, date and
place of the public hearing and will also serve as an information mailer. The
property owner ballots will include the assessor's parcel number, the property
owner and mailing address (or the situs address based on discussions with bond
counsel and city staff), the proposed assessment amount broken down by
improvement type, the method of assessment and the property's specific benefit as
required by Proposition 218.
1 Coordinate with the city to tabulate all ballots. We have developed a software
program that quickly and accurately tabulates all ballots. Each ballot will include
unique barcodes that can be scanned and tabulated within our program. Typically,
we can tabulate approximately 500 ballots per hour.
Task 7. Meetings
Throughout the formation process, we will attend meetings and participate, as necessary, in
conference calls with the city to facilitate in a timely manner the completion of resolutions,
the engineer's report and, as needed, the official statement to allow for bonds issuance.
This includes attending up to three (3) meetings with city staff and citizen workshops, as
well as two (2) city council meetings to approve the Resolutions of Intention and the public
hearing. Based on our hourly fees, we will attend additional meetings, such as utility
coordination meetings, at the city's request.
Optional Balloting Service: Q &A Fact Sheet
Ouestion and Ansivet /Fact Sheet Development and it failing. For many assessment projects
wr have worked on, we often prepare and mail Q&A fact sheets to each property owner as
part of an overall education effort for the district assessment. Many of the questions and
answers we use in this effort are typical issues raised by property owners facing a new
assessment. The Q &A sheet can help a property owner better understand why an agency is
seeking an assessment.
�Ve propose a straightforward information piece that will convey the significance of the
assessment in easy -to- understand format. This mailing would be in a double- sided, single -
colored, tri -fold format.
on
If the district is not formed, our services are concluded. If the district is formed, we will
notif }, propert}, owners of their final assessments and prepayment amounts; assist the
financing team with data required to fund the improvements, and record necessary
documents.
Task 1. Recording of Documents
Hand -walk the assessment diagram and Notice of Assessment through the city to obtain
appropriate signatures and record the documents at the Counry of Orange Recorder Office.
Tack 2. Mailing of Atotice of Confirmed Assessment
Prepare and mail confirmed assessment apportionment and Notice of Assessment to each
property owner of record within the district. The notice will serve as the beginning of the
30 -day cash collection period and will provide the discounted payoff amount to property
owners that wish to pay off their assessment prior to the sale of bonds. We will provide
certification stating that this task has been completed.
Task 3. Prepare Paid /Unpaid List
After the 30 -day cash collection period, we will coordinate with the city on any payoffs and
prepare the paid and unpaid list of assessments for the finance and final bond documents.
Task 4. Prepare Official Statement Tables
As necessary, provide information and review the preliminary official statement or state
loan documents. Develop data tables for the official statement, including value -to -lien
summaries, top owners, development status, and other data required by the financing team.
Task 5. Prepare Final Report
Prepare a final engineer's report that includes any cost savings from those originally
estimated and to reflect parcels that paid off their assessments during the 30 -day cash
collection period. File the final report with the Superintendent of Streets.
Task 6. meetings and Other Communication
Participate in up to three (3) meetings with city staff, bond counsel, financial advisor, bond
underwriter, appraiser, and other project consultants. (We anticipate this will include two
meetings with the financing team regarding the financing and issuance of bonds.)
We will also be available to answer questions and provide information to property owners,
project proponents, community association representatives, and other interested parties.
For this project, the City of Newport Beach will need to provide the follouring:
• Complete documentation and data related to the district, including electronic copies of
pertinent information.
• Opinions as requested from the City of Newport Beach Ciry Attorney's Office.
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M MuniFinandal
Exhibit B
FEES
MuniFinancial will provide assessment - engineering services for the formation of the
proposed Assessment District 94 (approximately 31 homes) for the following not -to-
exceed fees. The fees include miscellaneous costs such as travel and duplication.
MuniFinancial will bill on a monthly basis based on hours performed on the project.
Task I. Kickoff Meeting
Principal Consultant
LS
S4 o8
Principal Engineer
1.5
Principal Consultant
3
Task 2. Data Gathering
Analyst
6
51,205
Principal Engineer
2
Principal Consultant
8
Task 3. Report Methodology
Analyst
18
55,070
Principal Engineer
16
Principal Consultant
3
Task 4. Report Preparation
Analyst
16
S 1.955
Principal Engineer
2
Task 5: Prepare Resolutions
Principal Consultant
I
5370
Analyst
3
Task 6. Prepare and Mail Notices and
Principal Consultant
4
S 1,030
Ballots: Count Ballots
Analyst
6
Task 7. Meetings (three city/property
Principal Consultant
10.5
57''72
owner and two council)
Principal Engineer
5
Expenses
$500 i
Subtotal
S12,910
Task 1. Recording of Documents
Principal Consultant
1
$295
Analyst
Task 2. Mail Notice of Confirmed
Principal Consultant
I
5520
Assessment
Analyst
5
Task 3. Prepare Paid/Unpaid List
Principal Consultant
1
$220
Analyst
I
Task 4. Prepare Official Statement
Principal Consultant
6
$870
Tables
Principal Consultant
1
Task 5. Prepare Final Report
Analyst
2
5455
Principal Engineer
1
Task 6. Meetings /Other
Principal Consultant
6
$1,510
Communication
Engineer
4
--Principal
Expenses
$500
Subtotal
$4,370
TOTAL
517,280
Optional: Q &A/Fact Sheet Preparation Principal Consultant 3
$160
and Mailing Analyst 8
51,355
Principal Engineer 2
$125
Expenses
$400
TOTAL
$1,755
Reimbursable Expenses
MuniFinancial will be reimbursed, at cost, for out -of- pocket expenses, not -to- exceed
$1,000.00 ($1,400.00 if work includes Optional Q &A/Fact Sheet Preparation and Mailing).
Examples of reimbursable expenses include, but are not limited to: postage; travel
expenses; mileage (currently 37.50 per mile); maps; electronic data provided from the
county and/or other applicable resources; and copying (currently 6¢ per copy). Any
additional expense for reports, or otherwise from outside services, will be billed to the city
at our cost with no overhead mark -up.
Rates for Additional Professional Services
Additional services may be authorized by the City of Newport Beach and will be billed at
our then - current hourly consulting rates. Our current hourly rates are:
Principal Engineer
$160
Principal Consultant
$145
Senior Project Manager
$125
Project Manager
$105
Senior Analyst
$85
Analyst
$75
Analyst Assistant
$65
Property Owner Services Representative
$50
Support Staff
$45
Contract Termination
MuniFinancial understands that the City of Newport Beach may terminate this proposed
project in the event that the assessment district is 1) abandoned due to insufficient petitions,
2) abandoned by the City Council at the public hearing, or 3) formed and proceeds to
completion.
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City of Newport Beach NO. BA- 04BA -046
BUDGET AMENDMENT
2003 -04 AMOUNT: 3�s,oss.00
FECT ON BUDGETARY FUND BALANCE:
Increase Revenue Estimates Increase in Budgetary Fund Balance
X Increase Expenditure Appropriations AND X Decrease in Budgetary Fund Balance
Transfer Budget Appropriations No effect on Budgetary Fund Balance
SOURCE:
from existing budget appropriations
from additional estimated revenues
PX from unappropriated fund balance
EXPLANATION:
This budget amendment is requested to provide for the following:
To increase expenditure appropriations related to engineering services for Assessment District No. 94.
ACCOUNTING ENTRY:
BUDGETARY FUND BALANCE
Fund Account
4094 3605
JOVENUE ESTIMATES (3601)
Fund /Division Account
Description
Assessment District #94 Fund Balance
Description
Amount
Debit Credit
$19,035.00 "
EXPENDITURE APPROPRIATIONS (3603)
Description
Division Number 74094 Assessment District #94
Account Number 9812 Engineering Services $19,035.00
Division Number
Account Number
Division Number
Account Number
Division Number
Account Number
Signed: �ijX�, �r /��y� - -(J
Financial Approval: Administrative Services Director Date
Signed: /fir . i�� d
Administrative Appro I: City Manager D6te
Signed:
City Council Approval: City Clerk Date
n - - - f NeW E3G- t-Se3ch Na BA- 04aA =046
BUDGET AMENDMENT
2003 -04 AMOUNT: $�s,o3s.00
EFFECT ON BUDGETARY FUND BALANCE:
Increase Revenue Estimates Increase in Budgetary Fund Balance
Pq Increase Expenditure Appropriations AND �X Decrease in Budgetary Fund Balance
Transfer Budget Appropriations No effect on Budgetary Fund Balance
SOURCE:
from existing budget appropriations
from additional estimated revenues
PX from unappropriated fund balance
EXPLANATION:
This budget amendment is requested to provide for the following:
To increase expenditure appropriations related to engineering services for Assessment District No. 94.
ACCOUNTING ENTRY:
BUDGETARY FUND BALANCE
Fund Account
4094 3605
REVENUE ESTIMATES (3601)
Fund /Division Account
EXPENDITURE APPROPRIATIONS (3603)
Description
Assessment District #94 Fund Balance
Description
Signed:
Signed:
Signed:
Financial Approval: Administrative Services Director
Administrative Approal: City Manager
AJ i27.4dizlyl)
City Council Approval: City Clerk
Amount
Debit Credit
$19,035.00 *
$19,035.00
Date
d
/ to
Date
Description
Division
Number
74094 Assessment District #94
Account
Number
9812 Engineering Services
Division
Number
Account
Number
Division
Number
Account
Number
Division
Number
Account
Number
Signed:
Signed:
Signed:
Financial Approval: Administrative Services Director
Administrative Approal: City Manager
AJ i27.4dizlyl)
City Council Approval: City Clerk
Amount
Debit Credit
$19,035.00 *
$19,035.00
Date
d
/ to
Date