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Home My WebLink About05 - Underground AD Nos. 114 and 114b (Areas described within Newport Heights) and Approval of PSA��WPaRT CITY OF O � _ z NEWPORT BEACH Cq</ Fp P City Council Staff Report May 10, 2016 Agenda Item No. 5 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: David A. Webb, Public Works Director - 949-644-3311, dawebb@newportbeachca.gov PREPARED BY: Michael J. Sinacori, Assistant City Engineer PHONE: 949-644-3342 TITLE: Petition Certification for Proposed Underground Assessment District Nos. 114 and 114b (Areas described within Newport Heights) and Approval of Professional Services Agreement with Harris and Associates, Inc. ABSTRACT: Property owners within two (2) adjoining areas of Newport Heights, are requesting City Council certification consideration for their submitted petitions because of the City's upcoming alley construction. The petitions submitted to the City request formation of Assessment Districts (AD) Nos. 114 and 114b in order to underground overhead utilities. Current City guidelines require a minimum of 60% of property owner's signatures in favor of the District's in order to proceed with the District formation process. To date, the City's contract Assessment Engineer (Harris) has reviewed and certified that the proponents of AD 114 have obtained 54.21% of owner's signatures required, and that the proponents of AD 114b have obtained 59.71% of owner's signatures required. Both proposed Assessment Districts meet the minimum 50% petition threshold established under State law and can legally move forward to balloting if City Council so directs. If the boundaries of AD 114 and AD 114b were combined, the petition percentage would be 55.16%. The proponents of both AD 114 and 114b are also requesting City Council consideration for combining the two districts boundaries into one area, and that a property owner balloting be held using a conservative cost estimate to confirm the property owners desire to underground the utilities prior to undertaking the proposed alley reconstruction project. Official balloting would take place later this summer and if the Districts are formed, staff would also recommend that the City construction of impacted alleys within the Districts be postponed as described in the report as this would provide potential cost savings to both the property owners and the City. In addition, staff is requesting approval of a Professional Services Agreement with Harris and Associates, Inc. 5-1 Petition Certification for Proposed Underground Assessment District Nos. 114 and 114b (Areas described within Newport Heights) and Approval of Professional Services Agreement with Harris and Associates, Inc. May 10, 2016 Page 2 RECOMMENDATION: Should City Council waive current petition percentage guidelines and undertake a ballot vote as requested by the proponents of Assessment District Nos. 114 and 114b, then: a) Adopt Resolution No. 2016-56, A Resolution of the City Council of the City of Newport Beach, California, Accepting Petition of Assessment District No. 114; b) Adopt Resolution No. 2016-57, A Resolution of the City Council of the City of Newport Beach, California, Accepting Petition of Assessment District No. 114b; c) Approve Budget Amendment 16BA-040 appropriating the amount of $65,000, apportioned to Assessment District No. 114 in Account No. 66402-941006 and $50,000, apportioned to Assessment District No. 114b in Account No. 66502-941006 for assessment engineering services. Should these Assessment District(s) fail to form, these expenditures will be covered by the General Fund; and d) Approve a Professional Services Agreement (PSA) for engineering services for Assessment Districts Nos. 114 and 114b with Harris and Associates, Inc., at a not - to -exceed price of $115,000, and authorize the Mayor and City Clerk to execute the Agreement on a form approved by the City Attorney. FUNDING REQUIREMENTS: If the petitions are certified, a Professional Services Agreement with Harris and Associates, Inc (Harris). will be needed to complete the Engineer's Reports, prepare assessment ballots and attend the public hearings to consider these two (2) undergrounding districts. Approximately $115,000 in Funds will be needed to complete the Engineer's Reports, prepare assessment ballots, and schedule the public hearings for these districts. Apportioning to each district will be prepared as part of the Assessment Engineering Report. If the districts are not successful in formation, the Funds utilized for the preparation of the Engineer's Reports would not be recovered from the proposed district property owners and will be covered by the General Fund. 5-2 Petition Certification for Proposed Underground Assessment District Nos. 114 and 114b (Areas described within Newport Heights) and Approval of Professional Services Agreement with Harris and Associates, Inc. May 10, 2016 Page 3 DISCUSSION: Owners of property located in Proposed Assessment District Nos. 114 (Area Bounded by: Tustin Avenue / 15th Street / Irvine Avenue and Cliff Drive) and 114b (Area Bounded by: Riverside Avenue / 15th Street / Tustin Avenue and Cliff Drive) have submitted petitions to the City requesting a Special Assessment District be formed, pending approval of a district wide property owner balloting, to finance the undergrounding of overhead utilities within the proposed district. The boundaries of the proposed districts are shown on Attachment A and B respectively. One of the initial steps in the District formation process is the circulation of the Petitions for Special Assessment Proceedings. Proponents for AD 114 and AD 114b circulated the Petitions to property owners within the proposed districts and have now submitted the petition signatures to the City. The submitted Petitions signatures represent over fifty percent (50%) of the assessable property within AD 114 and AD 114b in support of undergrounding overhead utilities. The City's current guidelines require a minimum of 60% of property owner's signatures in favor of the districts in order to proceed with the district formation process. The 60% guideline reduces the financial risk to the City and further assures the City Council that the community favors the undergrounding and will vote positively in the future. State law requires a minimum of 50%. Proponent organizers within both AD 114 and 114b through their efforts have reached greater than 50% but have not yet reached the 60% threshold. Harris has reviewed and certified that the proponents of AD 114 have obtained 54.21% of owner's signatures required. Proponents of AD 114b have obtained 59.71% of owner's signatures required. Both proposed Assessment Districts meet the minimum 50% petition threshold established under State law and can legally move forward to a Proposition 218 balloting if City Council so directs. If the AD 114 and AD 114b were combined, the petition percentage would be 55.16°/x. Proponents for 114 and 114b are requesting City Council consideration due to the upcoming City investments planned for alleys as described below. Alley sewer rehabilitation and the concrete reconstruction of alleys are planned for this area and other areas in Newport Heights. The City is preparing to invest nearly $4 million in alley rehabilitation and reconstruction efforts in the Heights. The proposed Assessment Districts constitute approximately '/4 of the entire Newport Heights area. The Proponents within these areas are requesting that their petition be certified prior to the construction and afford them a "vote" (a public hearing balloting process) prior to the planned construction efforts within their alleys. 5-3 Petition Certification for Proposed Underground Assessment District Nos. 114 and 114b (Areas described within Newport Heights) and Approval of Professional Services Agreement with Harris and Associates, Inc. May 10, 2016 Page 4 If the petitions are certified, Assessment Engineering efforts would begin prior to the Edison design work and would be brought back to City Council. This method is similar to the four recently approved districts. If certified, balloting efforts would take place in late summer. Hypothetically, if the proposed districts fail during the balloting, alley reconstruction efforts could be delayed by a few months. If the proposed Districts are formed, the alley reconstruction is these areas should be delayed until the utilities have been undergrounded to prevent unnecessary impacts to the new alley improvements. The property owners and City will also realize cost savings if the undergrounding is done prior to completing the alley improvements. The City would in the meantime make patching and slurry sealing efforts to improve alley during this period because the sewer rehabilitation would still proceed regardless. If petitions are certified by the City Council, staff will request that the City advance funds to hire an assessment engineer to begin the district formation process. PROJECT HISTORY: • May 6, 2013 — City receives written request from property owner to initiate proceedings to form Underground Utility Assessment District No. 114 • July, 2013 — City requests Rough Order of Magnitude construction cost estimate from the utility companies • June 27, 2014 — City provides Instructions and Petition for Special Assessments Proceedings to property owner (Boundary discussions delayed Petition preparation efforts). • November 19, 2014 - Community Meeting held to discuss AD 114 and AD 118, which are adjacent to one another. 29 property owners from AD 114 and 46 property owners' from AD 118 attended. • January 28, 2015 - Community Meeting held for AD 118 to discuss utility undergrounding process, property owners from AD 114 attend also. There is active property owner opposition to the formation of AD 118. • February 10, 2015 — City Council Study Session held to discuss possible changes to the Underground District formation process. The City Council indicated a general support for the status quo, including maintaining a 60% signature requirement for the petition. • June, 2015 — Property owner proponents in AD 118 withdraw request for utility undergrounding. • March 2016 — AD 114 petitions are submitted to City for certification. If the City Council certifies the Petitions, staff recommends that the City enter into a Professional Services Agreement with our contract Assessment Engineer (Harris) to prepare the Engineer's Report and provide related assessment engineering services. Harris is a recognized expert in the field of assessment engineering with over 20 years 5-4 Petition Certification for Proposed Underground Assessment District Nos. 114 and 114b (Areas described within Newport Heights) and Approval of Professional Services Agreement with Harris and Associates, Inc. May 10, 2016 Page 5 of experience and is one of two firms competitively selected and serving on-call to currently assist staff with the numerous assessment districts City wide. Harris recently completed the Engineer's Reports and ballot process for the City's AD Nos. 111, 116 and 116b, which are adjacent to the planned Rule 20A project along Balboa Boulevard. Utilizing the on-call agreement, Harris has also completed all the preliminary efforts to prepare the Petition package for both 114 and 114b and has all the necessary data to move forward with the Engineer's Report and balloting process. To date, Harris has expended approximately $19,000 in the assessment engineering efforts related to AD - 114 and AD -114b. Rather than amending the on-call agreement used for the preliminary efforts, City Staff recommends approval of a single source separate and specific agreement for these two Districts. Lastly, if both of these Petitions are certified, Staff would recommend consideration for combining the two districts into one and voting the entire area with a single engineers report. This would be done in an effort to save the property owners cost for assessment engineering, formation and bond financing. Both AD -114 and AD -114b Proponents support combining the districts into a single district. ENVIRONMENTAL REVIEW: This project has been found to be exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15302 (replacement of existing facilities involving negligible expansion of capacity) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential to have a significant effect on the environment. NOTICING: This agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). ATTACHMENTS: Attachment A — Resolution Certifying the Petition for AD 114 Attachment B — Proposed Boundary Map of AD 114 Attachment C — Resolution Certifying the Petition for AD 114b Attachment D — Proposed Boundary Map of AD 114b Attachment E — Budget Amendment Attachment F — Professional Services Agreement with Harris and Associates, Inc. 5-5 ATTACHMENT A RESOLUTION NO. 2016- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH ACCEPTING PETITION OF ASSESSMENT DISTRICT NO. 114 WHEREAS, the owners of certain real property situated in the City of Newport Beach ("City") have filed with the City Clerk several signed counterparts of a petition, requesting the implementation of a project for the undergrounding of certain existing, overhead utility facilities, together with appurtenant work and improvements, as described therein, the cost of which is to be specifically assessed against each parcel of land benefiting from such improvements as shown on an exhibit map attached to the petition; and WHEREAS, the petition satisfies the requirements for instituting proceedings for the conversion of existing overhead electric and communication facilities to underground locations in accordance with Section 5896.5 of the Streets and Highways Code of the State of California; and WHEREAS, the City Clerk has also received a certificate to the effect that the petition has been signed by persons owning lands constituting more than fifty percent (50%) in area of the land subject to assessment within the proposed assessment district. NOW, THEREFORE, the City Council of the City of Newport Beach resolves as follows: Section 1: PETITION ACCEPTED. The petition, as filed with the City Clerk, is hereby found to be legally sufficient and is accepted. Section 2: DETERMINATION TO UNDERTAKE PROCEEDINGS. The special -1- 5-6 assessment proceedings shall be undertaken by the terms of the petition, pursuant to the Municipal Improvement Act of 1913 and the Special Assessment Investigation, Limitation and Majority Protest Act of 1931 commencing with Section 2960 of the Streets and Highways Code. Section 3: PUBLIC INTEREST AND CONVENIENCE SERVED. This City Council hereby finds and determines that the public interest and convenience will be served by the taking of such proceedings. Section 4: This action is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(3) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3 because the activity is not a project as defined in Section 15378 and has no potential for resulting in physical change to the environment, directly or indirectly. Section 5: ACTION IS FINAL. This action is " final' within the meaning of Streets and Highways Code Section 3012. -2- 5-7 Section 6: This resolution shall take effect immediately upon its adoption by the City Council, and the City Clerk shall certify the vote adopting the resolution. ADOPTED this ATTEST: Leilani I. Brown, City Clerk day of , 2016. In Diane B. Dixon, Mayor Attachment: Assessment Engineer Certificate of Sufficiency of Petition NO 5-8 CERTIFICATE OF SUFFICIENCY OF PETITION STATE OF CALIFORNIA COUNTY OF ORANGE CITY OF NEWPORT BEACH The undersigned hereby CERTIFIES as follows: That I am the duly appointed ASSESSMENT ENGINEER of the CITY OF NEWPORT BEACH, CALIFORNIA. That on the 25th day of April, 2016, I reviewed a Petition for the formation of an Assessment District for certain public works of improvement, together with appurtenances, appurtenant work and acquisition, where necessary, in a special assessment district known and designated as ASSESSMENT DISTRICT NO. 114 (hereinafter referred to as the "Assessment District"), a copy of which is on file in the Office of the City Clerk. The undersigned hereby further specifically certifies as follows: That I caused said Petition to be examined and my examination revealed that said Petition was signed by not less than five (5) owners of assessable land in the proposed Assessment District as shown by the last equalized assessment roll used by the City, owning lands constituting more than fifty percent (50%) of the area of all assessable lands within the proposed Assessment District, all as prescribed by Section 5896.6 of the Streets and Highways Code of the State of California. 2. Said Petition did represent fifty four and twenty one hundredths of a percent (54.21%) of the assessable area of property within the proposed boundaries of the Assessment District. Executed this 25th day of April, 2016 at Irvine, California. ALISON BOULEY, P.E. HARRIS & ASSOCIATES ASSESSMENT ENGINEER CITY OF NEWPORT BEACH STATE OF CALIFORNIA 5-9 BOUNDARY OF PROPOSED ASSESSMENT DISTRICT 71 520 516 1 512 500 I 444 Q1 442 1 438 H1 434 43C ~ 426 I 422 1 416 414 1 41 C ATTACHMENT B I-[—'] L j -i � " � � I " � ST L -L- ---- 7 546 544 2301 5 543 542 543 539 535 531 525 523 519 515 511 507 11 501 TsT 542 543 537 536 538 539 535 534 534 535 531 530 530 531 525 526 526 525 521 522 522 521 519 518 518 519 515 511 514 514 515 510 510 511 505 504 506 505 501 500 2320 501 CLAY TTV W TTV 441 Q 442 439 Q 438 435 w 430 431 D 427 0 426 423 -j 422 419 w 418 415 414 411 410 405 406 50 400 / DC/' / / 2519 323 328 h�� 319 324 320 0015 316 o�o0 31 n 441 Q 440 4370 438 435 cl) 432 431 Q 430 425 426 423 422 417 416 415 414 411 410 407 406 401 400 ST 329 328 325 324 CLIFF DR 46 549 42 545 38 539 32 5331 30 531 1 26 5271 22 5211 HAVEN 18 5191 12 51 10 511 04 5051 00 22001 1 _ou W /-207 2201 Iw 443 Q 442 443 1Q 439 z 438 439 lz W 435 0 432 435 431 w 430 431 1- 427 � 26 427 I CORAL 423 :3422 423 1 419 418 419 1 415 412 415 1 411 410 411 407 404 405 401 400 401 3271 1328 3291 24 3251 20 319 1 317 12 313 .�j1OOC71 JCV N N 04J N N N N Cy) L 00 IN NI PROPOSED ASSESSMENT DISTRICT NO. 114 AREA BOUNDARY BY 15TH ST, IRVINE AVE, CLIFF DR, AND TUSTIN AVE LEGEND ® POLES TO BE REMOVED DISTANCE: 9,750 LF POLES TO BE REMAIN PARCELS: 249 OVERHEAD LINES TO BE REMOVED - - - - OVERHEAD LINES TO REMAIN GUY WIRE zw 0- J ww0 O 2 U ccw� =z Q N.T.S. 05/16/14 5-10 ATTACHMENT C RESOLUTION NO. 2016- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH ACCEPTING PETITION OF ASSESSMENT DISTRICT NO. 114b WHEREAS, the owners of certain real property situated in the City of Newport Beach ("City") have filed with the City Clerk several signed counterparts of a petition, requesting the implementation of a project for the undergrounding of certain existing, overhead utility facilities, together with appurtenant work and improvements, as described therein, the cost of which is to be specifically assessed against each parcel of land benefiting from such improvements as shown on an exhibit map attached to the petition; and WHEREAS, the petition satisfies the requirements for instituting proceedings for the conversion of existing overhead electric and communication facilities to underground locations in accordance with Section 5896.5 of the Streets and Highways Code of the State of California; and WHEREAS, the City Clerk has also received a certificate to the effect that the petition has been signed by persons owning lands constituting more than fifty percent (50%) in area of the land subject to assessment within the proposed assessment district. NOW, THEREFORE, the City Council of the City of Newport Beach resolves as follows: Section 1: PETITION ACCEPTED. The petition, as filed with the City Clerk, is hereby found to be legally sufficient and is accepted. Section 2: DETERMINATION TO UNDERTAKE PROCEEDINGS. The special -1- 5-11 assessment proceedings shall be undertaken by the terms of the petition, pursuant to the Municipal Improvement Act of 1913 and the Special Assessment Investigation, Limitation and Majority Protest Act of 1931 commencing with Section 2960 of the Streets and Highways Code. Section 3: PUBLIC INTEREST AND CONVENIENCE SERVED. This City Council hereby finds and determines that the public interest and convenience will be served by the taking of such proceedings. Section 4: This action is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(3) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3 because the activity is not a project as defined in Section 15378 and has no potential for resulting in physical change to the environment, directly or indirectly. Section 5: ACTION IS FINAL. This action is " final' within the meaning of Streets and Highways Code Section 3012. -2- 5-12 Section 6: This resolution shall take effect immediately upon its adoption by the City Council, and the City Clerk shall certify the vote adopting the resolution. ADOPTED this ATTEST: Leilani I. Brown, City Clerk day of , 2016. In Diane B. Dixon, Mayor Attachment: Assessment Engineer Certificate of Sufficiency of Petition NO 5-13 CERTIFICATE OF SUFFICIENCY OF PETITION STATE OF CALIFORNIA COUNTY OF ORANGE CITY OF NEWPORT BEACH The undersigned hereby CERTIFIES as follows: That I am the duly appointed ASSESSMENT ENGINEER of the CITY OF NEWPORT BEACH, CALIFORNIA. That on the 25th day of April, 2016, I reviewed a Petition for the formation of an Assessment District for certain public works of improvement, together with appurtenances, appurtenant work and acquisition, where necessary, in a special assessment district known and designated as ASSESSMENT DISTRICT NO. 114b (hereinafter referred to as the "Assessment District"), a copy of which is on file in the Office of the City Clerk. The undersigned hereby further specifically certifies as follows: 1. That I caused said Petition to be examined and my examination revealed that said Petition was signed by not less than five (5) owners of assessable land in the proposed Assessment District as shown by the last equalized assessment roll used by the City, owning lands constituting more than fifty percent (50%) of the area of all assessable lands within the proposed Assessment District, all as prescribed by Section 5896.6 of the Streets and Highways Code of the State of California. 2. Said Petition did represent fifty nine and seventy one hundredths of a percent (59.71%) of the assessable area of property within the proposed boundaries of the Assessment District. Executed this 25th day of April, 2016 at Irvine, California. ALISON BOULEY, P.E. HARRIS & ASSOCIATES ASSESSMENT ENGINEER CITY OF NEWPORT BEACH STATE OF CALIFORNIA 5-14 2800 -P, -t, j U7 C.0 cn ATTACHMENT D 41 cil REDLANDS AVE O 2 -FL "-� i7OA. 1 j 2700 cn O O N � O co N N 11`L co 4�:, 4�, O 0 N c O 2 -FL "-� i7OA. 1 j 2700 cn N 1 K) to W W cn �cn U, �cn �cn cn m cn cn �cn �cn �cn W U7 U7 O ' v U1 v W Cn (n 2 U) Q - i W /- RIVERSIDE AVE p , 4 4�, 4�, .A 4"-4,� -4,2620 cn cn cn cn cn. cn cn cn cn 1 p 1 N N W W W ? -r-— N N W W W .06N O O m N m O 41 . N CA 1 O -P w N O O w N CA ; p � 2616 � N ■ rn O A cn cn cn cn Cn U1 cn cn cn Ul Cn O ■ -4 N N N W W � cn Cn O O 1 � - N N W W W � � -� CA CO W -4 Ul CC) W —4 - j Ul CO W -I — U7 C0 W TUSTIN AVE EL MODENA AVE PROPOSED ASSESSMENT DISTRICT NO. 1146 ARCH HEIGHTS IV POLES TO BE REMOVED (± 12) - NEW POLE OVERHEAD LINES TO BE REMOVED OVERHEAD LINES TO REMAIN POLES TO REMAIN m PAGE 1OF1 ASSESSMENT DISTRICT BOUNDARY 04 40 FIGURE 1A , DISTANCE: ± 1,500 L.F. N PARCELS: ± 51 SCALE I"=200' REVISED 3-3-15 5-15 1 j � cp O O O N N N N co 4�:, 4�, O 0 N m O ? w Cb O m (n 2 U) Q - i W /- RIVERSIDE AVE p , 4 4�, 4�, .A 4"-4,� -4,2620 cn cn cn cn cn. cn cn cn cn 1 p 1 N N W W W ? -r-— N N W W W .06N O O m N m O 41 . N CA 1 O -P w N O O w N CA ; p � 2616 � N ■ rn O A cn cn cn cn Cn U1 cn cn cn Ul Cn O ■ -4 N N N W W � cn Cn O O 1 � - N N W W W � � -� CA CO W -4 Ul CC) W —4 - j Ul CO W -I — U7 C0 W TUSTIN AVE EL MODENA AVE PROPOSED ASSESSMENT DISTRICT NO. 1146 ARCH HEIGHTS IV POLES TO BE REMOVED (± 12) - NEW POLE OVERHEAD LINES TO BE REMOVED OVERHEAD LINES TO REMAIN POLES TO REMAIN m PAGE 1OF1 ASSESSMENT DISTRICT BOUNDARY 04 40 FIGURE 1A , DISTANCE: ± 1,500 L.F. N PARCELS: ± 51 SCALE I"=200' REVISED 3-3-15 5-15 O O N N W W W 4�:, 4�, (D W -I (n 2 U) Q - i W /- RIVERSIDE AVE p , 4 4�, 4�, .A 4"-4,� -4,2620 cn cn cn cn cn. cn cn cn cn 1 p 1 N N W W W ? -r-— N N W W W .06N O O m N m O 41 . N CA 1 O -P w N O O w N CA ; p � 2616 � N ■ rn O A cn cn cn cn Cn U1 cn cn cn Ul Cn O ■ -4 N N N W W � cn Cn O O 1 � - N N W W W � � -� CA CO W -4 Ul CC) W —4 - j Ul CO W -I — U7 C0 W TUSTIN AVE EL MODENA AVE PROPOSED ASSESSMENT DISTRICT NO. 1146 ARCH HEIGHTS IV POLES TO BE REMOVED (± 12) - NEW POLE OVERHEAD LINES TO BE REMOVED OVERHEAD LINES TO REMAIN POLES TO REMAIN m PAGE 1OF1 ASSESSMENT DISTRICT BOUNDARY 04 40 FIGURE 1A , DISTANCE: ± 1,500 L.F. N PARCELS: ± 51 SCALE I"=200' REVISED 3-3-15 5-15 ATTACHMENT E City of Newport Beach BUDGET AMENDMENT 2015-16 EFFECT ON BUDGETARY FUND BALANCE: Increase Revenue Estimates X Increase Expenditure Appropriations AND Transfer Budget Appropriations SOURCE: from existing budget appropriations from additional estimated revenues X from unappropriated fund balance EXPLANATION: This budget amendment is requested to provide for the following: NO. BA- 16BA-040 AMOUNT: 1 $115,000.00 Increase in Budgetary Fund Balance X Decrease in Budgetary Fund Balance No effect on Budgetary Fund Balance To authorize and appropriate the amount of $115,000 to initiate the work associated with Assessment Districts #114 and 114b. If the Districts are not successful in formation, funds advanced to this district cannot be recovered from the proposed district property owners and would therefore be covered by the General Fund. ACCOUNTING ENTRY: BUDGETARY FUND BALANCE Fund Object Description 664 300000 Assessment District #114 - Fund Balance 665 300000 Assessment District #114b - Fund Balance REVENUE ESTIMATES (360 1) Fund/Division Account Description EXPENDITURE APPROPRIATIONS (3603) Signed Signed: Signed: '�Financi L proval: Finance Dire Administ ive Approval: City Manger City Council Approval: City Clerk Amount Debit Credit $65,000.00 $50,000.00 Automatic $65,000.00 $50,000.00 S- y - f Date Sltb Date Date 5-16 Description Org Number 66402 Assessment District #114 Object Number 941006 AD Engineering Services Org Number 66502 Assessment District #114b Object Number 941006 AD Engineering Services Signed Signed: Signed: '�Financi L proval: Finance Dire Administ ive Approval: City Manger City Council Approval: City Clerk Amount Debit Credit $65,000.00 $50,000.00 Automatic $65,000.00 $50,000.00 S- y - f Date Sltb Date Date 5-16 ATTACHMENT F PROFESSIONAL SERVICES AGREEMENT WITH HARRIS & ASSOCIATES, INC. FOR ENGINEERING SERVICES FOR ASSESSMENT DISTRICTS 114 AND 114B THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into as of this 10th day of May, 2016 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and HARRIS & ASSOCIATES, INC., a California corporation ("Consultant"), whose address is 1401 Willow Pass Road, Suite 500, Concord, California 94520, and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City desires to engage Consultant to provide professional engineering services for Assessment Districts 114 and 114b ("Project"). C. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the professional services described in this Agreement. D. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the Effective Date, and shall terminate on June 30, 2019, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference ("Services" or "Work"). City may elect to delete certain Services within the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE 3.1 Time is of the essence in the performance of Services under this Agreement and Consultant shall perform the Services in accordance with the schedule included in Exhibit A. In the absence of a specific schedule, the Services shall be 5-17 performed to completion in a diligent and timely manner. The failure by Consultant to strictly adhere to the schedule set forth in Exhibit A, if any, or perform the Services in a diligent and timely manner may result in termination of this Agreement by City. 3.2 Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the Services to be provided for the Project, each party hereby agrees to provide notice within two (2) calendar days of the occurrence causing the delay to the other party so that all delays can be addressed. 3.3 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator as defined herein not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.4 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by hand -delivery or mail. 6111 Eel i! tOZ9191 Mf;LYI 4.1 City shall pay Consultant for the Services on a time and expense not -to - exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed One Hundred Fifteen Thousand Dollars and 00/100 ($115,000.00), without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.2 Consultant shall submit monthly invoices to City describing the Work performed the preceding month. Consultant's bills shall include the name of the person who performed the Work, a brief description of the Services performed and/or the specific task in the Scope of Services to which it relates, the date the Services were performed, the number of hours spent on all Work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) calendar days after approval of the monthly invoice by City staff. 4.3 City shall reimburse Consultant only for those costs or expenses specifically identified in Exhibit B to this Agreement or specifically approved in writing in advance by City. 4.4 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any Work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Harris & Associates, Inc. Page 2 5-18 Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 5. PROJECT MANAGER 5.1 Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated Dennis A. Anderson to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. 5.2 Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of Services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 5.3 If Consultant is performing inspection services for City, the Project Manager and any other assigned staff shall be equipped with a cellular phone to communicate with City staff. The Project Manager's cellular phone number shall be provided to City. 6. ADMINISTRATION This Agreement will be administered by the Public Works Department. City's Public Works Director or designee shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator shall represent City in all matters pertaining to the Services to be'rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES To assist Consultant in the execution of its responsibilities under this Agreement, City agrees to provide access to and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's Work schedule. 8. STANDARD OF CARE 8.1 All of the Services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the Services required by this Agreement, and that it will perform all Services in a manner commensurate with community professional standards and with the ordinary degree of skill and care that would be used by other reasonably competent practitioners of the same discipline under similar circumstances. All Services shall be performed by qualified and experienced personnel who are not employed by City. By delivery of completed Work, Consultant certifies that the Work Harris & Associates, Inc. Page 3 5-19 conforms to the requirements of this Agreement, all applicable federal, state and local laws, and legally recognized professional standards. 8.2 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force and effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's Work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS 9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, employees and any person or entity owning or otherwise in legal control of the property upon which Consultant performs the Project and/or Services contemplated by this Agreement (collectively, the "Indemnified Parties), from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorneys' fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims"), which may arise under this Agreement or in any manner relate (directly or indirectly) to the negligence, recklessness, or willful misconduct of the Consultant or its principals, officers, agents, employees, vendors, suppliers, subconsultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable, or any or all of them. 9.2 Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence, active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorneys' fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the Work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. No Harris & Associates, Inc. Page 4 5-20 civil service status or other right of employment shall accrue to Consultant or its employees. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the Work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance of the Work or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the Services. 11. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the Work to be performed. City agrees to cooperate with the Consultant on the Project. 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement or for other periods as specified in this Agreement, policies of insurance of the type, amounts, terms and conditions described in the Insurance Requirements attached hereto as Exhibit C, and incorporated herein by reference. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the Services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint -venture or syndicate or co -tenancy, which shall result in changing the control of Consultant. Control means fifty percent (50%) or more of the voting Harris & Associates, Inc. Page 5 5-21 power or twenty-five percent (25%) or more of the assets of the corporation, partnership or joint -venture. 16. SUBCONTRACTING The subcontractors authorized by City, if any, to perform Work on this Project are identified in Exhibit A. Consultant shall be fully responsible to City for all acts and omissions of any subcontractor. Nothing in this Agreement shall create any contractual relationship between City and any subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. City is an intended beneficiary of any Work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and City. Except as specifically authorized herein, the Services to be provided under this Agreement shall not be otherwise assigned, transferred, contracted or subcontracted out without the prior written approval of City. 17. PREVAILING WAGES If any of the Work contemplated under the Agreement is considered a "public work", pursuant to the applicable provisions of the Labor Code of the State of California, including but not limited to Section 1720 et seq., not less than the general prevailing rate of per diem wages including legal holidays and overtime Work for each craft or type of workman shall be paid to all workmen employed on such. In accordance with the California Labor Code (Sections 1770 et seq.), the Director of Industrial Relations has ascertained the general prevailing rate of per diem wages in the locality in which the Work is to be performed for each craft, classification, or type of workman or mechanic needed to execute the Agreement. A copy of said determination is available by calling the prevailing wage hotline number (415) 703-4774, and requesting one from the Department of Industrial Relations. The Contractor is required to obtain the wage determinations from the Department of Industrial Relations and post at the job site the prevailing rate or per diem wages. It shall be the obligation of the Contractor or any subcontractor under him/her to comply with all State of California labor laws, rules and regulations and the parties agree that the City shall not be liable for any violation thereof. 18. OWNERSHIP OF DOCUMENTS 18.1 Each and every report, draft, map, record, plan, document and other writing produced, including but not limited to, websites, blogs, social media accounts and applications (hereinafter "Documents"), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Additionally, all material posted in cyberspace by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further Harris & Associates, Inc. Page 6 5-22 compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents, including all logins and password information to City upon prior written request. 18.2 Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant, and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 18.3 CADD data delivered to City shall include the professional stamp of the engineer or architect in charge of or responsible for the Work. City agrees that Consultant shall not be liable for claims, liabilities or losses arising out of, or connected with (a) the modification or misuse by City, or anyone authorized by City, of CADD data; (b) the decline of accuracy or readability of CADD data due to inappropriate storage conditions or duration; or (c) any use by City, or anyone authorized by City, of CADD data for additions to this Project, for the completion of this Project by others, or for any other Project, excepting only such use as is authorized, in writing, by Consultant. By acceptance of CADD data, City agrees to indemnify Consultant for damages and liability resulting from the modification or misuse of such CADD data. All original drawings shall be submitted to City in the version of AutoCAD used by the City in .dwg file format, on a CD, and should comply with the City's digital submission requirements for improvement plans available from the City's Public Works Department. The City will provide Consultant with City title sheets as AutoCAD file(s) in .dwg file format. All written documents shall be transmitted to City in formats compatible with Microsoft Office and/or viewable with Adobe Acrobat. 18.4 All improvement and/or construction plans shall be prepared with indelible waterproof ink or electrostatically plotted on standard twenty-four inch (24") by thirty-six inch (36") Mylar with a minimum thickness of three (3) mils. Consultant shall provide to City 'As -Built' drawings and a copy of digital Computer Aided Design and Drafting ("CADD") and Tagged Image File Format (.tiff) files of all final sheets within ninety (90) days after finalization of the Project. For more detailed requirements, a copy of the City of Newport Beach Standard Design Requirements is available from the City's Public Works Department. 19. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents the Consultant's judgment as a design professional and is supplied for the general guidance of City. Since Consultant has no control over the cost of labor and material, or over Harris & Associates, Inc. Page 7 5-23 competitive bidding or market conditions, Consultant does not guarantee the accuracy of such opinions as compared to Consultant or contractor bids or actual cost to City. 20. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the Services in this Agreement, shall be kept confidential unless City expressly authorizes in writing the release of information. 21. INTELLECTUAL PROPERTY INDEMNITY Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement or alleged infringement of any United States' letters patent, trademark, or copyright, including costs, contained in Consultant's Documents provided under this Agreement. 22. RECORDS Consultant shall keep records and invoices in connection with the Services to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any Services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow 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 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 Harris & Associates, Inc. Page 8 5-24 borne by Consultant. Nothing in this Section is intended to limit City's rights under the law or 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 26.1 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. 26.2 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 27.1 All notices, demands, requests or approvals, including any change in mailing address, to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first- class mail, addressed as hereinafter provided. 27.2 All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: David A. Webb, Public Works Director Public Works Department City of Newport Beach 100 Civic Center Drive PO Box 1768 Newport Beach, CA 92658 27.3 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attn: Dennis A. Anderson Harris & Associates, Inc. 22 Executive Park, Suite 200 Irvine, CA 92614 Harris & Associates, Inc. Page 9 5-25 28. CLAIMS Unless a shorter time is specified elsewhere in this Agreement, before making its final request for payment under this Agreement, Consultant shall submit to City, in writing, all claims for compensation under or arising out of this Agreement. Consultant's acceptance of the final payment shall constitute a waiver of all claims for compensation under or arising out of this Agreement except those previously made in writing and identified by Consultant in writing as unsettled at the time of its final request for payment. Consultant and City expressly agree that in addition to any claims filing requirements set forth in the Agreement, Consultant shall be required to file any claim Consultant may have against City in strict conformance with the Government Claims Act (Government Code sections 900 et seq.). 29. TERMINATION 29.1 In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, and thereafter diligently take steps to cure the default, the non -defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 29.2 Notwithstanding the above provisions, City shall have the right, at its sole and absolute discretion and without cause, of terminating this Agreement at any time by giving no less than seven (7) calendar days' prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for Services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 30. STANDARD PROVISIONS 30.1 Recitals. City and Consultant acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. 30.2 Compliance with all Laws. Consultant shall, at its own cost and expense, comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all Work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. Harris & Associates, Inc. Page 10 5-26 30.3 Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 30.4 Integrated Contract. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 30.5 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 30.6 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 30.7 Amendments. This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 30.8 Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 30.9 Controlling Law and Venue. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of California. 30.10 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, sexual orientation, age or any other impermissible basis under law. 30.11 No Attorneys' Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. 30.12 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. [SIGNATURES ON NEXT PAGE] Harris & Associates, Inc. Page 11 5-27 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: YZ By: Aaron C. Harp L City Attorney G'L+"JY ATTEST: Date: EM Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: By: Diane B. Dixon Mayor CONSULTANT: Harris & Associates, Inc., a California corporation Date: Bv: Dennis A. Anderson Director, Financial Engineering [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Exhibit C — Insurance Requirements Harris & Associates, Inc. Page 12 5-28 EXHIBIT SCOPE OF SERVICES Harris & Associates, Inc. Page A-1 5-29 EXHIBIT A SCOPE OF WORK There are approximately 300 parcels within Assessment District 114 and Assessment District 1148. Phase 1— Engineer's Report and Formation Proceedings 1. Attend assessment district coordination meetings on an as -needed basis. Coordinate between City and property owners as required. Up to three (3) meetings estimated. 2. Prepare the Boundary Map and the Assessment Diagram for the Assessment District from an electronic base map supplied by the City. 3. Prepare the draft Preliminary Engineer's Report in accordance with the 1913 Act, the 1931 Act and Proposition 218, to include the following: • 1931 Act information and tables • Plans and specifications (by reference) • Description of works of improvements • Preliminary estimate of costs • Assessment Diagram • Method of assessment apportionment • Assessment roll with preliminary assessments • Right -of -Way Certificate (executed by Superintendent of Streets) • Certificate of Completion (executed by Director of Public Works) 4. Finalize the Preliminary Engineer's Report, including apportionment and method of assessment distribution, resolution and staff report based on comments received. 5. Attend property owner information meetings to discuss preliminary assessments. Up to two (2) meetings estimated. 6. Attend the City Council meeting at which Resolution of Intention and Preliminary Engineer's Report are considered and Public Hearing is set. 7. Prepare Boundary Map for recordation and record. 8. Prepare the Notices of Public Hearing and Assessment Ballots, including the property owner's name and mailing address, Assessor's parcel number and preliminary assessment amount, for mailing to all assessed property owners of record within the proposed district. Work will be performed in accordance with the 1913 Act and Proposition 218. This scope assumes Special Council and the City will review and approve the contents of the Notice and that the City will 5-30 provide the envelopes and postage for mailing. Prepare a written declaration that this task has been completed. Handle all property owner inquiries regarding the Assessment District and coordinate issuance of replacement ballots, as requested by property owners. 9. Attend the City Council meeting at which the Public Hearing is conducted to provide technical support and answer questions. Tabulate the assessment ballots after the close of the public hearing and present the results to the City Council. 10. Make revisions to the Engineer's Report as ordered by the City Council. 11. Coordinate with City and property owners as necessary during the formation proceedings. Up to three (3) meetings estimated. Phase 2 - Assessment Confirmation and Bond Sale 12. Prepare the Notice of Assessment Lien, List of Assessed Property Owner Names and Assessment Diagram for recordation and record. 13. 1st Notice: Prepare the Notice of Assessment, including the confirmed assessment amount as well as cash payoff amount, for mailing to all assessed property owners of record within the confirmed district. This scope item assumes the City Attorney and/or Bond Counsel reviews the contents of the Notice and that the City will provide the envelopes for the mailing. Prepare a written declaration that this task has been completed. 14. Handle all property owner inquiries regarding the Assessment District payoff process and coordinate issuance of replacement notices, as requested by property owners. 15. Prepare the List of Paid and Unpaid Assessments for use by the City. 16. Prepare Notice of Lien Release for all parcels that paid off the assessment in full for execution by the City Clerk and recordation. 17. 2nd Notice: Prepare the 2nd Notice of Assessment, including the confirmed assessment amount as well as cash payoff amount, for mailing to all assessed property owners of record within the confirmed district. This scope item assumes the City Attorney and/or Bond Counsel reviews the contents of the Notice and that the City will provide the envelopes for the mailing. Prepare a written declaration that this task has been completed. 18. Handle all property owner inquiries regarding the Assessment District payoff process and coordinate issuance of replacement notices, as requested by property owners. 19. Prepare the Final List of Paid and Unpaid Assessments for use by the City. 5-31 20. Prepare Notice of Lien Release for all parcels that paid off the assessment in full for execution by the City Clerk and recordation. 21. Assist the City and project team with review of the Preliminary Official Statement and the Official Statement, and provide basic assessment engineering, as necessary, to bring the project to the point of initial bond sale. 22. Participate in meetings with City staff, project administration and coordination with City staff, property owners, bond counsel, financial advisor, bond underwriter, appraiser, and other project consultants. Up to three (3) meetings estimated per district. PROJECT SCHEDULE Phase 2 -Assessment Confirmation and Bond Sale Calendar Weeks Phase 1 - Engineer's Report and Formation Proceedings Duration 1 2 3 4 5 6 7 8 9 10 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Utility Coordination Meetings and Owner Coord. (3 mtgs est.) JAsneeded [......_........i F 2 Prepare Boundary Map and Assessment Diagram 12 We, 3 Prepare draft Preliminary Engineer's Report I3 We, 4 Finalize Preliminary Engineer's Report ........ ;........ ........ :................;........: ............................... I1 Week .i...... I 5 Property Owner Information Meetings (5 mtgs est.) ........:.......:.......>....... ........ ............ ......_......_................ IAs needed 6 Attend R OI Council Mtg (1 mtg) .......;.................. 1 day 7 Prepare Boundary Map for Recordation and Record ................ ........,......... ..................... 11 Week 8 Prepare Notices of Formation and Ballots .' ........... ............ ..... - I2 Weeks '- 9 Attend Public Hearin &Tabulate Assessment Ballots 1 Hearing ( mtg) _.._...........,............. ,........,.................i I da v 10 Mrevisionsp......_ Make revision s to Engineer s Report as directed ...................... I1 Week 11 Project Team Meetings and Coordination (3 mtgs est.) IAs needed Phase 2 -Assessment Confirmation and Bond Sale Duratioi 12 Prepare Notice of Assessment Lien, List of Owners, Diagram / Re 11 Week 13 Mail 1st Notice ofAssessment Is weeks 14 Property Owner Inquiries -1st cash collection period 11 Week 15 Prepare 1st Paid/Unpaid List 11 Week 16 Prepare Notices of Lien Release and Record I1 Week 17 Mail 2nd Notice of Assessment I5 Weeks 18 Property Owner Inquiries - 2nd cash collection period 11 Week 19 Prepare Final Paid/Unpaid List I1 Week 20 Prepare Notices of Lien Release and Record 11 Week 21 Review POS and OS 14 Weeks 22 Project Team Meetings and Coordination IAs Neede 1 2 3 4 5 6 7 0 0 a 1 2 3 4 5 6 7 8 20 21 22 23 24 25 26 27 28 Collect 5-32 BOUNDARY OF PROPOSED ASSESSMENT DISTRICT Li 546 I 1 PROPOSED ASSESSMENT DISTRICT NO. 114 AREA BOUNDARY BY 15TH ST, IRVINE AVE, CLIFF DR, AND TUSTIN AVE LEGEND POLES TO BE REMOVED POLES TO BE REMAIN OVERHEAD LINES TO BE REMOVED - - - - OVERHEAD LINES TO REMAIN GUY WIRE DISTANCE 9,750 LF N.T.S. PARCELS: 249 05/16/14 5-33 2800 O Ul I W REDLANDS AVE CD -�-� N N W W W .p O O Oo N .P O -11, Oo N r 2700 N N N W W L cn c0 cn c-ncncnm ImlcnIm �mm O O O cn m - N - cn � W cin W U1 cn C0 cn cn cn I cn cn cn cn cn cn cn cn 2620 j j — N N N W 4�1 -;� O O W N O O A N Co O O cn cn cn �, cn cn cn cn cn cn cn cn 2620 j j N N W W W A O A c0 — –4— O cn c0 w v f - H Q W RIVERSIDE AVE m® m m mmmmm m m ,m m m =m m m mmm® a s mms® m m® m m m® m a 0 – – – – – -r�o e O .A. A .A .A .A .A .A U'1 Cn Cn cn U7 cn cn cn cn cn CJ7 N N N W W � � A MO O -• N N W W WP U1 CD w �I TUSTIN AVE EL MODENA AVE PROPOSED ASSESSMENT DISTRICT NO. 114B ARCH HEIGHTS POLES TO BE REMOVED (± 12) .— – – ASSESSMENT DISTRICT BOUNDARY NEW POLE FIGURE 1A OVERHEAD LINES TO BE REMOVED DISTANCE: ± 1,500 L.F. N — OVERHEAD LINES TO REMAIN PARCELS: ± 51 SCALE I'=200' O POLES TO REMAIN PAGE 1 OF 1 REVISED 3-3-15 5-34 a mmmm® s 2620 j j N N W W W A O A W N W O P Oo N O O A W N O O ? W N O N I o 0 – – – – – -r�o e O .A. A .A .A .A .A .A U'1 Cn Cn cn U7 cn cn cn cn cn CJ7 N N N W W � � A MO O -• N N W W WP U1 CD w �I TUSTIN AVE EL MODENA AVE PROPOSED ASSESSMENT DISTRICT NO. 114B ARCH HEIGHTS POLES TO BE REMOVED (± 12) .— – – ASSESSMENT DISTRICT BOUNDARY NEW POLE FIGURE 1A OVERHEAD LINES TO BE REMOVED DISTANCE: ± 1,500 L.F. N — OVERHEAD LINES TO REMAIN PARCELS: ± 51 SCALE I'=200' O POLES TO REMAIN PAGE 1 OF 1 REVISED 3-3-15 5-34 �' 2620 j j N N W W W A O A W N W O P Oo N 07 2616 0 – – – – – -r�o e O .A. A .A .A .A .A .A U'1 Cn Cn cn U7 cn cn cn cn cn CJ7 N N N W W � � A MO O -• N N W W WP U1 CD w �I TUSTIN AVE EL MODENA AVE PROPOSED ASSESSMENT DISTRICT NO. 114B ARCH HEIGHTS POLES TO BE REMOVED (± 12) .— – – ASSESSMENT DISTRICT BOUNDARY NEW POLE FIGURE 1A OVERHEAD LINES TO BE REMOVED DISTANCE: ± 1,500 L.F. N — OVERHEAD LINES TO REMAIN PARCELS: ± 51 SCALE I'=200' O POLES TO REMAIN PAGE 1 OF 1 REVISED 3-3-15 5-34 EXHIBIT B SCHEDULE OF BILLING RATES Harris & Associates, Inc. Page B-1 5-35 EXHIBIT B FEE SCHEDULE Phase 1— Engineer's Report and Formation Proceedings Tasks 1 through 11.................................................................................Time & Materials, NTE $68,790 Phase 2 - Assessment Confirmation and Bond Sale Tasks 12 through 22...............................................................................Time & Materials, NTE $46,210 Total All Services..................................................................... Time & Materials, NTE $115,000 The following tables provide the estimated hours of work allocated for each of the project tasks for Phase 1 and Phase 2. Phase 1— Engineer's Report and Formation Proceedings Project Assessment Proj. Senior CAD Admin 40 8,600 Manager Engineer Analyst Technician Asst Total Total $230/hr $200/hr $120/hr $130/hr $70/hr Estimated Estimated Hours Hours Hours Hours Hours Hours Fee 1 Utility Coordination Meetings and Owner Coordination 20 20 Senior CAD Admin 40 8,600 2 Prepare BoundarMap and Assessment Diagram 4 4 1 6 46 60 8,420 3 Pre aredraftPreliminar Engineer's Reort 8 32 1 80 4 124 18,120 4 Finalize Preliminary Engineer's Report 8 12 1 8 4 32 5,480 5 Property Owner Information Meetings 8 8 1 8 4 28 4,680 6 Attend ROI Council Meeting 3 3 13 1,890 6 1,290 7 Prepare Boundary Map for Recordation and Record 2 2 1 8 _ 30 12 1,820 8 Prepare Notices of Formation and Ballots 5 8 34 16 63 7,950 9 Attend Public Hearing & Tabulate Assessment Ballots 6 6 6 18 3,300 10 Make revisions to Engineer's Report as directed 2 2 8 4 16 2,100 it Project Team Meetings and Coordination 16 16 32 6,880 Reimbursables -Estimated Posta efor Ballots 150 ,ma, rnmc i --b; 5z 113 Phase 2 - Assessment Confirmation and Bond Sale 158 46 32 431 $68,790 Project Assessment Proj. Senior CAD Admin 13 Mail 1st NotiteofAssessment 3 Manager Engineer Analyst Technician Asst Total Total $230/hr $200/hr $120/hr $130/hr $70/hr Estimated Estimated Hours Hours Hours Hours Hours Hours Fee 12 1 Prepare Notice of Assessment Lien List of Owners Diagram Recor 3 14 17 1 2,370 13 Mail 1st NotiteofAssessment 3 20 18 41 1 4,350 14 PropertyOwner Inquiries - istcash collection period 3 60 63 1 7,890 15 Prepare 1st Paid/Unpaid List 3 10 13 1,890 16 Pre are Notices of Lien Releaseand Record 3 10 13 1,890 17 Mail 2nd Notice of Assessment 3 20 18 41 4,350 18 Property Owner Inquiries - 2nd cash collection period 3 60 63 7,890 19 Prepare Final Paid/Unpaid List 3 10 13 1,890 20 Prepare Notices of Lien Release and Record 3 10 13 1,890 21 Review POS and OS _ 30 30 6,900 22 Project Team Meetings and Coordination 20 20 4,600 Reimbursables - Estimated Posta efor Mailed Notices 300 ".'"" """ "" • .. c14 36 327 $46,210 5-36 EXHIBIT C INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES 1. Provision of Insurance. Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. Consultant agrees to provide insurance in accordance with requirements set forth here. If Consultant uses existing coverage to comply and that coverage does not meet these requirements, Consultant agrees to amend, supplement or endorse the existing coverage. 2. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 3. Coverage Requirements. A. Workers' Compensation Insurance. Consultant shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its City Council, boards and commissions, officers, agents, volunteers, employees and any person or entity owning or otherwise in legal control of the property upon which Consultant performs the Project and/or Services contemplated by this Agreement. B. General Liability Insurance. Consultant shall maintain commercial general liability insurance, and if necessary umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) general aggregate. The policy shall cover liability arising from premises, operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract). C. Automobile Liability Insurance. Consultant shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of Consultant arising out of or in connection with Work to be performed under this Harris & Associates, Inc. Page C-1 5-37 Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit each accident. D. Professional Liability (Errors & Omissions) Insurance. Consultant shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of one million dollars ($1,000,000) per claim and two million dollars ($2,000,000) in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the Effective Date of this Agreement and Consultant agrees to maintain continuous coverage through a period no less than three years after completion of the Services required by this Agreement. 4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: A. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its City Council, boards and commissions, officers, agents, volunteers, employees and any person or entity owning or otherwise in legal control of the property upon which Consultant performs the Project and/or Services contemplated by this Agreement or shall specifically allow Consultant or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its subconsultants. B. Additional Insured Status. All liability policies including general liability, excess liability, pollution liability, and automobile liability, if required, but not including professional liability, shall provide or be endorsed to provide that City, its City Council, boards and commissions, officers, agents, volunteers, employees and any person or entity owning or otherwise in legal control of the property upon which Consultant performs the Project and/or Services contemplated by this Agreement shall be included as insureds under such policies. C. Primary and Non Contributory. All liability coverage shall apply on a primary basis and shall not require contribution from any insurance or self- insurance maintained by City. D. Notice of Cancellation. All policies shall provide City with thirty (30) calendar days notice of cancellation (except for nonpayment for which ten (10) calendar days notice is required) or nonrenewal of coverage for each required coverage. 5. Additional Agreements Between the Parties. The parties hereby agree to the following: Harris & Associates, Inc. Page C-2 5-38 A. Evidence of Insurance. Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation and other endorsements as specified herein for each coverage. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. City reserves the right to require complete, certified copies of all required insurance policies, at any time. B. City's Right to Revise Requirements. City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Consultant sixty (60) calendar days advance written notice of such change. If such change results in substantial additional cost to Consultant, City and Consultant may renegotiate Consultant's compensation. C. Enforcement of Agreement Provisions. Consultant acknowledges and agrees that any actual or alleged failure on the part of City to inform Consultant of non-compliance with any requirement imposes no additional obligations on City nor does it waive any rights hereunder. D. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Consultant maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. E. Self-insured Retentions. Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self- insurance will not be considered to comply with these requirements unless approved by City. F. City Remedies for Non -Compliance. If Consultant or any subconsultant fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this Agreement, or to suspend Consultant's right to proceed until proper evidence of insurance is provided. Any amounts paid by City shall, at City's sole option, be deducted from amounts payable to Consultant or reimbursed by Consultant upon demand. Harris & Associates, Inc. Page C-3 5-39 G. Timely Notice of Claims. Contractor shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Contractor's performance under this Contract, and that involve or may involve coverage under any of the required liability policies. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. H. Consultant's Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Work. Harris & Associates, Inc. Page C-4 5-40