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HomeMy WebLinkAbout06 - 04BA-061 - Underground Assessment District 101CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 6 May 25, 2004 TO: Mayor and Members of the City Council FROM: Public Works Department Iris Lee, Junior Civil Engineer 949 - 644 -3311 ilee @city.newport- beach.ca.us SUBJECT: REQUEST FOR FUNDING FOR PROPOSED UNDERGROUND ASSESSMENT DISTRICT NO. 101 (AREA BOUNDED BY: EAST EDGEWATER AVENUE / EDGEWATER PLACE, ISLAND AVENUE, EAST BALBOA BOULEVARD, AND ADAMS STREET AND BUENA VISTA BOULEVARD, LINDO AVENUE, AND WEST BAY AVENUE) RECOMMENDATIONS: 1. Authorize an advance from the General Fund in the amount of $102,745.00 to Assessment District No. 101 and appropriate $40,000.00 to 74101 -9810 for electric design, $40,000.00 to 74101 -9811 for phone design, and $22,745.00 to 74101- 9812 for assessment engineering services. 2. Authorize the City Manager to execute a Professional Services Agreement with MuniFinancial in the not to exceed amount of $22,745.00 for assessment engineering services. DISCUSSION: The property owners of Proposed Underground Assessment District No. 101 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 the attached Exhibit "A ". One of the initial steps in the District formation process is the circulation of the Petition for Special Assessment Proceedings. Proponents of the District circulated a petition to the property owners and have submitted the signed petition to the City. The submitted signatures represent over 60 percent (60 %) 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 $22,745.00 for services with the firm MuniFinancial. The assessment engineering services to be provided by MuniFinancial are detailed in the attached Professional Services Agreement and include identifying, analyzing, and SUBJECT: Request for Funding for Proposed Underground Assessment District No. 101 May 25, 2004 Page 2 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 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. Southern California Edison (SCE) and SBC Communications, Inc. (SBC) are responsible for the design of their utilities. In order to initiate the design of these facilities, the City must remit $40,000.00 to SCE and $40,000.00 to SBC. The utility and engineering costs will be reimbursed to the City by the District if it is formed at the final Public Hearing. However, the funds will not be recovered if the District is not formed. The City Council has previously authorized the advancements of funds for other districts. 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 will be available in the following account: Description 74101 -9810 74101 -9811 74101 -9812 Prepared by: r e Junior Civil Engineer Account No. SCE Design Fee SBC Design Fee Assessment Engineer Fee Submitted by: Amount $40,000.00 $40,000.00 $22.745.00 $102,745.00 alum Director Attachments: Exhibit "A ", Boundary Map of Proposed Oistrict Professional Services Agreement with MuniFinancial Budget Amendment BOUNDARY OF PROPOSED EAST EDGEWATER AVENUE ASSESSMENT DISTRICT h / 350 IIi a �v/ 342 33 330 3351 w 326 I w 331 z LL' 324 z� 322 C s 328 32g J 320 I— m 3l a 316 J o0 3100 - �. �6' • �, i ` - AVENUE ,' --- - V/ BAY WEST N NOT TO SCALE PROPOSED ASSESSEMENT DISTRICT NO.101 AREA BOUNDED BY EAST EDGEWATER AVENUE / EDGEWATER PLACE, ISLAND AVENUE, EAST BALBOA BOULEVARD, AND ADAMS STREET & AREA BOUNDED BY BUENA VISTA BOULEVARD, UNDO AVENUE, ALLEY AND WEST BAY AVENUE POLES TO BE REMOVED OVERHEAD LINES TO BE REMOVED PAGE 1 OF 4 1/22/04 EAST EDGEWATER AVENUE r� M In r.- C'4 0 N 330 329 326 327 W 328 327 324 325 W 326 W 325 322 323 a 324 cn w 32311323 w 320 321 322 w a o 321 'a 318 319 320 a CL w 319 316 317 318 a 317 314 ! 315 316 z 315 312 313 � 314 s g 313 310 311 z 312 o 1l 311 0 308 309 2 310 N w g ' 1 a 306 307 308-1 S S (n ui -� —�- 1' 'il 304 305 I L--4j — 1 v l 302 r' O a C4 BOUNDARY OF �I of � ` ` `� a PROPOSED TJ �� �'i ` AVENUE ASSESSMENT ����J BAY DISTRICT WEST `M N'N 1 �IM t'- �IN1N I I 1203 �N 6 �N M M Illl p O IIN��I' �' � N N O r BLVD WEST BALBOA NOT TO SCALE PROPOSED ASSESSEMENT DISTRICT NO.101 AREA BOUNDED BY EAST EDGEWATER AVENUE / EDGEWATER PLACE, ISLAND AVENUE, EAST BALBOA BOULEVARD, AND ADAMS STREET & AREA BOUNDED BY BUENA VISTA BOULEVARD, LINDO AVENUE, ALLEY AND WEST BAY AVENUE POLES TO BE REMOVED OVERHEAD LINES TO BE REMOVED PAGE 2 OF 4 1/22/04 BOUNDARY OF PROPOSED ASSESSMENT DISTRICT �� \FAST � ) N I `� \�� OG WA 0) \TER 329 N N NN \�� �N�F 328 327 N N} 325 w 324 325 w L8 3 324 323 a 322 323 CL 321 320 321 J w w 319 318 319 318 319 w Lu 316317 316 1 317AB 316 317 —3151 314 -- — 3131 ba 314 5 W 315 314 3131 312 ' 313 312 3131 w 311 3io2� 311 °0 310 31111 x `n 309 O 308 309 01308 309.00 Q z 307 °qa 306 1!..__307 0 306 i ._3 _ oZC w 2 302 305 N N NI i! i l m 0 I W!i IN IO t i I I N1N1NIi m I EAST BAY AVENUE � i io,M Ii �OO i�M � � � r r m' O � O r N N 00 00 ! ,. li�IS; o jN vicojao 0o 00 o ° C, NNiNN NN N� 1NiN C, co NOT TO SCALE EAST BALBOA BLVD PROPOSED ASSESSEMENT DISTRICT NO.101 AREA BOUNDED BY EAST EDGEWATER AVENUE / EDGEWATER PLACE, ISLAND AVENUE, EAST BALBOA BOULEVARD, AND ADAMS STREET & AREA BOUNDED BY BUENA VISTA BOULEVARD, UNDO AVENUE, ALLEY AND WEST BAY AVENUE POLES TO BE REMOVED OVERHEAD LINES TO BE REMOVED PAGE 3 OF 4 1/22/04 BOUNDARY OF PROPOSED ASSESSMENT DISTRICT �r- FD G FhgrFR cn 0 O w w P p 0� \pL9CF Lu bo V6 V6 z Lu 310 U F" y 0 308 j can �^ c^o o / / w z.3006 �°� ddppNd lu Lu cc (n w M I /2 / P N EAST 980 33333 % co IO�< in LfI 0)0 1uj M M M M 1p D �209og\�8 AC yB «' tiHrO h4 e �NGn SrRAF F T 1 co p o 210 11 N7 I w \`201 °o °ol ol$°0l0 IN. c°� Ni M / aI(Z) /(ZC)O EAST BALBOA ml m BLVD������L N NOT TO SCALE PROPOSED ASSESSEMENT DISTRICT NO.101 AREA BOUNDED BY EAST EDGEWATER AVENUEIEDGEWATER PLACE, ISLAND AVENUE, EAST BALBOA BOULEVARD, AND ADAMS STREET & AREA BOUNDED BY BUENA VISTA BOULEVARD, LINDO AVENUE, ALLEY AND WEST BAY AVENUE 0 POLES TO BE REMOVED Q POLES TO BE REMOVED AS PART OF AD -75 OVERHEAD LINES TO BE REMOVED PAGE 4 OF 4 1/22/04 PROFESSIONAL SERVICES AGREEMENT WITH MUNIFINANCIAL FOR ASSESSMENT ENGINEERING SERVICES FOR PROPOSED UNDERGROUND ASSESSMENT DISTRICT NO. 101 THIS AGREEMENT is made and entered into as of this day of 20_, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City"), and MUNIFINANCIAL a corporation whose address is 27368 Via Industrida, 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 establish a Rule -B Underground Utility Assessment District No. 101 for the City of Newport Beach in accordance with Proposition 218 requirements, as described in Exhibit A. C. City desires to engage Consultant to assist the City in the formation of the proposed Assessment District No. 101 including the preparation of a Preliminary Engineer's Report, execution of a ballot vote in accordance with Proposition 218, preparation of a Final Engineer's Report, and District Formation, as described more fully in Exhibit A ( "Project "). D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal members of Consultant for purposes of Project shall be Scott Koppel (Principal Consultant) and David Hunt, P.E. (Project Engineer). F. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the above written date, and shall terminate on the 30th day of May, 2008, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference. The City may elect to delete certain tasks of the Scope, of Services at its sole discretion. 3. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and the services shall be performed to completion in a diligent and timely manner. The failure by Consultant to perform the services in a diligent and timely manner may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 3.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by either telephone, fax, hand - delivery or mail. 3.3 The parties agree that it is extremely difficult and impractical to determine and fix the actual damages that City will sustain should the Consultant fail to complete the work called for in this Agreement. Should Consultant fail to complete the work called for in this Agreement, Consultant agrees to the deduction of actual and reasonable damages. 4. COMPENSATION TO CONSULTANT City shall pay Consultant for the services on a time and expense not -to- exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. In no event shall Consultant's compensation exceed Twenty Two Thousand Seven Hundred and Forty Five Dollars and no /100 ($22,745.00) 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 2 of the person who performed the work, a brief description of the services performed and /or the specific task in the Scope of Services to which it relates, the date the services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in advance by City. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 5. PROJECT MANAGER Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated 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. 3 If Consultant is performing inspection or construction management services for City, the Project Manager and any other assigned staff shall be equipped with a Nextel Plus type cellular /direct connect unit to communicate with City staff. Consultant's Nextel Direct Connect I.D. number will be provided to City to be programmed into City Nextel units, and vice versa. 6. ADMINISTRATION This Agreement will be administered by the Public Works Department. Iris Lee shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his /her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: A. Provide access to, and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. B. Provide blueprinting and other services through City's reproduction company for bid documents. Consultant will be required to coordinate the required bid documents with City's reproduction company. All other reproduction will be the responsibility of Consultant and as defined above. C. Provide usable life of facilities criteria and information with regards to new facilities or facilities to be rehabilitated. 8. STANDARD OF CARE 8.1 All of the services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the services required by this Agreement, and that it will perform all services in a manner commensurate with community professional standards. All services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. 8.2 Consultant represents and warrants to City that it has or shall obtain all licenses, permits, qualifications, insurance and approvals of whatsoever nature that are legally required of Consultant to practice its profession. Consultant further represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any and all licenses, permits, insurance and other 12 approvals that are legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 8.4 The term Construction Management or Construction Manager does not imply that Consultant is engaged in any aspect of the physical work of construction contracting. Consultant shall not have control over or be in charge of and shall not be responsible for the project's design, City's project contractor ( "Contractor'), construction means, methods, techniques, sequences or procedures, or for any health or safety precautions and programs in connection with the work. These duties are and shall remain the sole responsibility of the Contractor. Consultant shall not be responsible for the Contractors' schedules or failure to carry out the work in accordance with the contract documents. Consultant shall not have control over or be responsible for acts or omissions of City, Design Engineer, Contractor, Subcontractors, or their Agents or employees, or of any other persons performing portions of the work. 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents and employees (collectively, the "Indemnified Parties) from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, 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 willful acts, errors and /or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the 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 M action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the services. 11. COOPERATION Consultant agrees to work closely and cooperate fully with City s designated Project Administrator and any other agencies that may have jurisdiction or interest in the work to be performed. City agrees to cooperate with the Consultant on the Project. 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator and /or his /her duly authorized designee informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance A coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements. i. 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 7 less than one million dollars ($1,000,000) combined single limit for each occurrence. iv. Professional Errors and Omissions Insurance. Consultant shall maintain professional errors and omissions insurance, which covers the services to be performed in connection with this Agreement in the minimum amount of one million dollars ($1,000,000). E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: i. The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Consultant. ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Consultant's operations or services provided to City. Any insurance maintained by City, including any self- insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days written notice has been received by City. F. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. G. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own M judgment may be necessary for its proper protection and prosecution of the work. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint-venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more of the assets of the corporation, partnership or joint- venture. 16. SUBCONTRACTING The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of City. Consultant shall not subcontract any portion of the work to be performed under this Agreement without the prior written authorization of City. 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. N 18. COMPUTER DELIVERABLES CADD data delivered to City shall include the professional stamp of the engineer or architect in charge of or responsible for the work. City agrees that Consultant shall not be liable for claims, liabilities or losses arising out of, or connected with (a) the modification or misuse by City, or anyone authorized by City, of CADD data; (b) the decline of accuracy or readability of CADD data due to inappropriate storage conditions or duration; or (c) any use by City, or anyone authorized by City, of CADD data for additions to this Project, for the completion of this Project by others, or for any other Project, excepting only such use as is authorized, in writing, by Consultant. By acceptance of CADD data, City agrees to indemnify Consultant for damages and liability resulting from the modification or misuse of such CADD data. All original drawings shall be submitted to City in the version of AutoCAD used by City in ".dwg" file format on a CD, and should comply with the City's digital submission requirements for Improvement Plans. The City will provide AutoCAD file of City Title Sheets. All written documents shall be transmitted to City in the City's latest adopted version of Microsoft Word and Excel. 19. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes in writing the release of information. 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 Consultants 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 T identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 23. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant 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. 11 27. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, to City by Consultant and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Iris Lee Public Works Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663 Phone: 949 - 644 -3323 Fax: 949 - 644 -3318 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attn: Scott Koppel MuniFinancial 27368 Via Industria, Suite 110 Temecula, CA 92590 Phone: (909) 587 -3571 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 a nd costs i ncurred u p to t he a ffective d ate o f t ermination for w hich Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 12 29. COMPLIANCE WITH ALL LAWS Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 30. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 31. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 32. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 33. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 34. SEVERABILITY If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 35. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 13 36. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: City Attorney for the City of Newport Beach CITY OF NEWPORT BEACH, A Municipal Corporation 0 City Manager for the City of Newport Beach MUNIFINANCIAL: LM Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates f: \users\pbw�shared\agreements \fy 03- 04 \muni1nancia1- ad101.doc 14 36. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: City Attorney for the City of Newport Beach CITY OF NEWPORT BEACH, A Municipal Corporation City Manager for the City of Newport Beach MUNIFINANCIAL: Attachments: Exhibit A — Scope of Services Exhibit B —Schedule of Billing Rates f: \users \pbw \shared \agreements \fy 03- 04\munifinancial- ad101.doc 14 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. KickoffMeeting 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 forward with 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 Methodology A. Based on information gathered, prepare a prelimnary 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; 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 AfpniFinanaal Exhibit A Assessment Distnd No. 101 Page 1 2. The assessment methodology will take into consideration the potential of land use, density, acreage and view aspects of the properties. 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: 1. 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 11 -inch format that will include the following items: 1. Legal parcels that will exist at the time of district formation; 1 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 will be discussed with 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. ManiFinancial ExhibitA Assessment Disbia No. 701 Paget 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: 1. 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; 8. A right -of -way schedule indicating right -of -way still to be acquired (f 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 (f necessary). Task S.- Review and /or Prepare Resolutions 1. Review and /or prepare intent meeting resolutions regarding the proposed assessment increase. 2. Review and /or 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 1. 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 sirus 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. 2. 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 600 ballots per hour. M=Finandal Exhibit A Assessment Dittria No. 101 Page 3 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. If the district is not formed, our services are concluded. If the district is formed, we will notify property 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 County of Orange Recorder Office. Task 2. Mailing of Notice 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 S. 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. Munihnanaal ExhibitA 4ssessment Dittnet No. ioi Page 4 Client Responsibilities For this project, the City of Newport Beach will need to provide the following: • Complete documentation and data related to the district, including electronic copies of pertinent information. • Opinions as requested from the City of Newport Beach City Attorney's Office. MumFinancial ExbibitA Assessment Dirtad No. 101 Pages �OMuniFinancia4 Exhibit B FEES MuniFinancial will provide assessment - engineering services for the formation of the proposed Assessment District 101 (approximately 278 parcels) 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. Assessment Engineering -and lififial Formation Task Fee Task 1. Kickoff Meeting Principal Consultant 1.5 $457.50 Principal Engineer 1.5 Task 2. Data Gathering Principal Consultant Analyst 4 10 $1,650 Principal Engineer 2 Principal Consultant 8 Task 3. Report Methodology Analyst 11 16 $6,320 Analyst 8 Principal Engineer 20 Principal Consultant 3 Task 4, Report Preparation Analyst H 12 $2,675 Analyst 12 Principal Engineer 2 Task 5: Review /Prepare Resolutions Principal Consultant 1 $400 Analyst II 3 Task 6. Prepare and Mail Notices and Principal Consultant 6 Ballots; Count Ballots Analyst II 6 $1,830 Analyst 6 Task 7. Meetings (three city /property Principal Consultant 10.5 owner and two council) Analyst 6 $2,772.50 Principal Engineer 5 Expenses (see description in paragraph below) $500 Subtotal $16,605 MamFinanaal Exhibit B Auessmcnt District No. 101 Reimbursable Expenses MuniFinancial will be reimbursed, at cost, for out -of- pocket expenses, not -to- exceed $1,000.00, as estimated in the table above. 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. MxmFinanaal Exhibit B Assessment Dirtrirt No. 701 Page 2 Task 1. Recording of Documents Principal Consultant 1 $370 Analyst 3 Task 2. Mail Notice of Confirmed Principal Consultant 2 Assessment Analyst 11 4 $930 Analyst 4 Principal Consultant 1 Task 3. Prepare Paid /Unpaid List Analyst H 2 $465 Analyst 2 Task 4. Prepare Official Statement Tables Principal Consultant 12 $1,740 Principal Consultant 1 Task 5. Prepare Final Report Analyst H 2 $475 Principal Engineer 1 Principal Consultant 6 Task 6. Meetings /Other Communication Analyst 2 $1,660 ' Principal Engineer 4 Expenses (see description in paragraph below) $500 Subtotal $6,140 TOTAL $22,745 Reimbursable Expenses MuniFinancial will be reimbursed, at cost, for out -of- pocket expenses, not -to- exceed $1,000.00, as estimated in the table above. 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. MxmFinanaal Exhibit B Assessment Dirtrirt No. 701 Page 2 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: Title Hourly Rate Principal Engineer $160 Principal Consultant $145 Senior Project Manager $125 Project Manager $105 Senior Analyst /Analyst II $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. Exhibit B Assessment DattictNo. 101 Page 3 City of Newport Beach NO. BA- 04BA -061 BUDGET AMENDMENT 2003 -04 AMOUNT: $1oz,7a5.00 EFFECT 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 for the costs associated with the preliminary work on Assessment District NO. 101. Funds will be reimbursed by the District should it be formed. ACCOUNTING ENTRY: BUDGETARY FUND BALANCE Fund Account 010 3605 REVENUE ESTIMATES (3601) Fund /Division Account EXPENDITURE APPROPRIATIONS (3603) Description General Fund Fund Balance Description Signed: Amount Debit Credit $102,745.00 $40,000.00 $40,000.00 $22,745.00 Date e City Council Approval: City Clerk Date Description Division Number 74101 Assessment District No. 101 Account Number 9810 AD Electric Design Account Number 9811 AD Phone Design Account Number 9812 AD Assessment Engineering Division Number Account Number Division Number Account Number Signed:�j�jca4 Fin ncial proval: Administrativ Services Director Signed: , Administrative App r al: City Manager Signed: Amount Debit Credit $102,745.00 $40,000.00 $40,000.00 $22,745.00 Date e City Council Approval: City Clerk Date