HomeMy WebLinkAboutNBS Government Finance Group; 2013-06-28;AGREEMENT FOR ASSESSMENT ENGINEERING SERVICES - ASSESSMENT DISTRICT
NO. 2014-1 (COLLEGE BOULEVARD REACH A)
(NBS GOVERNMENT FINANCE GROUP, NBS/GFG)
^HJS AGREEMENT is made and entered into as of the o>/(j day of
•UyUi^ , 20/3 . by and between the CITY OF CARLSBAD, a municipal
corporation, ("City"), and NBS GOVERNMENT FINANCE GROUP (NBS/GFG), a corporation,
("Contr^tor").
RECITALS
A. City requires the professional services of a contractor that is experienced in
Assessment Engineering for 1915 Act Assessment Districts.
B. Contractor has the necessary experience in providing professional services and
advice related to Assessment Engineering.
C. Contractor has submitted a proposal to City and has affirmed its willingness and
ability to perform such work.
NOW, THEREFORE, in consideration of these recitals and the mutual covenants
contained herein. City and Contractor agree as follows:
1. SCOPE OF WORK
City retains Contractor to perform, and Contractor agrees to render, those services (the
"Services") that are defined in attached Exhibit "A", which is incorporated by this reference in
accordance with this Agreement's terms and conditions.
2. STANDARD OF PERFORMANCE
While performing the Services, Contractor will exercise the reasonable professional care and
skill customarily exercised by reputable members of Contractor's profession practicing in the
Metropolitan Southern California Area, and will use reasonable diligence and best judgment
while exercising its professional skill and expertise.
3. TERM
The term of this Agreement will be effective for a period of two (2) years from the date first
above written. The City Manager may amend the Agreement to extend it for three (3) additional
one (1) year periods or parts thereof in an amount not to exceed twenty-nine thousand five
hundred dollars ($29,500) over the term of the contract as discussed in Section 5. Extensions
will be based upon a satisfactory review of Contractor's performance, City needs, and
appropriation of funds by the City Council. The parties will prepare a written amendment
indicating the effective date and length ofthe extended Agreement.
4. TIME IS OF THE ESSENCE
Time is ofthe essence for each and every provision of this Agreement.
6. COMPENSATION
A. Phase 1 - Proposition 218 Special vs. General Benefit Analysis and Preliminary
Engineer's Report for Proposed 1913/1915 Act Assessment District
The total not to exceed fee payable for the Services to be performed during the Agreement term
of Phase 1 will be twenty-one thousand dollars ($21,000), as further described in Exhibit "A" -
Fee Structure for Phase 1 - Proposition 218 Special vs. General Benefit Analysis and
City Attorney Approved Version 1/30/13
Preliminary Engineer's Report for Proposed 1913/1915 Act Assessment District. No other
compensation for the Services will be allowed except for items covered by subsequent
amendments to this Agreement. The City reserves the right to withhold a ten percent (10%)
retention until City has accepted the work and/or Services specified in Exhibit "A".
Incremental payments, if applicable, should be made as outlined in attached Exhibit "A".
B. Phase 2 - 1913/1915 Act Assessment District Formation Proceedings
The total not to exceed fee payable for the Services to be performed during the Agreement term
of Phase 2 will be eight thousand five hundred dollars ($8,500), as further described in Exhibit
"A" - Fee Structure for Phase 2 - 1913/1915 Act Assessment District Formation Proceedings.
No other compensation for the Services will be allowed except for items covered by subsequent
amendments to this Agreement. The City reserves the right to withhold a ten percent (10%)
retention until City has accepted the work and/or Services specified in Exhibit "A".
Incremental payments, if applicable, should be made as outlined in attached Exhibit "A".
6. STATUS OF CONTRACTOR
Contractor will perform the Services in Contractor's own way as an independent contractor and
in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be
under control of City only as to the result to be accomplished, but will consult with City as
necessary. The persons used by Contractor to provide services under this Agreement will not
be considered employees of City for any purposes.
The payment made to Contractor pursuant to the Agreement will be the full and complete
compensation to which Contractor is entitled. City will not make any federal or state tax
withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be
required to pay any workers' compensation insurance or unemployment contributions on behalf
of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within
thirty (30) days for any tax, retirement contribution, social security, overtime payment,
unemployment payment or workers' compensation payment which City may be required to
make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work
done under this Agreement. At the City's election, City may deduct the indemnification amount
from any balance owing to Contractor.
7. SUBCONTRACTING
Contractor will not subcontract any portion of the Services without prior written approval of City.
If Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the
acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly
employed by the subcontractor, as Contractor is for the acts and omissions of persons directly
employed by Contractor. Nothing contained in this Agreement will create any contractual
relationship between any subcontractor of Contractor and City. Contractor will be responsible for
payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of
a subcontractor by the terms of this Agreement applicable to Contractor's work unless
specifically noted to the contrary in the subcontract and approved in writing by City.
8. OTHER CONTRACTORS
The City reserves the right to employ other Contractors in connection with the Services.
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9. INDEMNIFICATION
Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees
and volunteers from and against all claims, damages, losses and expenses including attorneys
fees arising out of the performance of the work described herein caused by any negligence,
recklessness, or willful misconduct of the Contractor, any subcontractor, anyone directly or
indirectly employed by any of them or anyone for whose acts any of them may be liable.
The parties expressly agree that any payment, attorney's fee, costs or expense City incurs or
makes to or on behalf of an injured employee under the City's self-administered workers'
compensation is included as a loss, expense or cost for the purposes of this section, and that
this section will survive the expiration or early termination of this Agreement.
10. INSURANCE
Contractor will obtain and maintain for the duration of the Agreement and any and all
amendments, insurance against claims for injuries to persons or damage to property which may
arise out of or in connection with performance of the services by Contractor or Contractor's
agents, representatives, employees or subcontractors. The insurance will be obtained from an
insurance carrier admitted and authorized to do business in the State of California. The
insurance carrier is required to have a current Best's Key Rating of not less than "A-:VM". OR
with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers
(LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X".
10.1 Coverages and Limits.
Contractor will maintain the types of coverages and minimum limits indicated below, unless Risk
Manager or City Manager approves a lower amount. These minimum amounts of coverage will
not constitute any limitations or cap on Contractor's indemnification obligations under this
Agreement. City, its officers, agents and employees make no representation that the limits of
the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to
protect Contractor. If Contractor believes that any required insurance coverage is inadequate.
Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at
Contractor's sole expense.
10.1.1 Commercial General Liabilitv Insurance. $1,000,000 combined single-limit
per occurrence for bodily injury, personal injury and property damage. If the submitted policies
contain aggregate limits, general aggregate limits will apply separately to the work under this
Agreement or the general aggregate will be twice the required per occurrence limit.
10.1.2 Automobile Liabilitv. (if the use of an automobile is involved for
Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and
property damage.
10.1.3 Workers' Compensation and Employer's Liabilitv. Workers' Compensation
limits as required by the California Labor Code. Workers' Compensation will not be required if
Contractor has no employees and provides, to City's satisfaction, a declaration stating this.
10.1.4 Professional Liabilitv. Errors and omissions liability appropriate to
Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be
maintained for a period of five years following the date of completion of the work.
ConirBcto
I I If box is checked. Professional Liability
City's initials Con^rfctor's Initials Insurance requirement is waived.
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10.2. Additional Provisions. Contractor will ensure that the policies of insurance required under
this Agreement contain, or are endorsed to contain, the following provisions:
10.2.1 The City will be named as an additional insured on Commercial General
Liability which shall provide primary coverage to the City.
10.2.2 Contractor will obtain occurrence coverage, excluding Professional
Liability, which will be written as claims-made coverage.
10.2.3 This insurance will be in force during the life of the Agreement and any
extensions of it and will not be canceled without thirty (30) days prior written notice to City sent
by certified mail pursuant to the Notice provisions of this Agreement.
10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this
Agreement, Contractor will furnish certificates of insurance and endorsements to City.
10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance
coverages, then City will have the option to declare Contractor in breach, or may purchase
replacement insurance or pay the premiums that are due on existing policies in order to
maintain the required coverages. Contractor is responsible for any payments made by City to
obtain or maintain insurance and City may collect these payments from Contractor or deduct the
amount paid from any sums due Contractor under this Agreement.
10.5 Submission of Insurance Policies. City reserves the right to require, at anytime, complete
and certified copies of any or all required insurance policies and endorsements.
11. BUSINESS LICENSE
Contractor will obtain and maintain a City of Carlsbad Business License for the term of the
Agreement, as may be amended from time-to-time.
12. ACCOUNTING RECORDS
Contractor will maintain complete and accurate records with respect to costs incurred under this
Agreement. All records will be clearly identifiable. Contractor will allow a representative of City
during normal business hours to examine, audit, and make transcripts or copies of records and
any other documents created pursuant to this Agreement. Contractor will 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 under this Agreement.
13. OWNERSHIP OF DOCUMENTS
All work product produced by Contractor or its agents, employees, and subcontractors pursuant
to this Agreement is the property of City. In the event this Agreement is terminated, all work
product produced by Contractor or its agents, employees and subcontractors pursuant to this
Agreement will be delivered at once to City. Contractor will have the right to make one (1) copy
of the work product for Contractor's records.
14. COPYRIGHTS
Contractor agrees that all copyrights that arise from the services will be vested in City and
Contractor relinquishes all claims to the copyrights in favor of City.
16. NOTICES
The name of the persons who are authorized to give written notices or to receive written notice
on behalf of City and on behalf of Contractor under this Agreement.
City Attorney Approved Version 1/30/13
For Citv For Contractor
Name Aaron Beanan Name Pablo Perez
Title Senior Accountant Title Client Services Director
Department Finance Address 32605 Temecula Parkway, Suite 100
City of Carlsbad Temecula, CA 92592
Address 1635 Faraday Avenue Phone No. 800-676-7516
Carlsbad, CA 92008 Email pperez@nbsgov.com
Phone No. 760-602-2414
Each party will notify the other immediately of any changes of address that would require any
notice or delivery to be directed to another address.
16. CONFLICT OF INTEREST
Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the
requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report
investments or interests in all four categories.
17. GENERAL COMPLIANCE WITH LAWS
Contractor will keep fully informed of federal, state and local laws and ordinances and
regulations which in any manner affect those employed by Contractor, or in any way affect the
performance of the Services by Contractor. Contractor will at all times observe and comply with
these laws, ordinances, and regulations and will be responsible for the compliance of
Contractor's services with all applicable laws, ordinances and regulations.
Contractor will be aware ofthe requirements ofthe Immigration Reform and Control Act of 1986
and will comply with those requirements, including, but not limited to, verifying the eligibility for
employment of all agents, employees, subcontractors and consultants whose services are
required by this Agreement.
18. DISCRIMINATION AND HARASSMENT PROHIBITED
Contractor will comply with all applicable local, state and federal laws and regulations prohibiting
discrimination and harassment.
19. DISPUTE RESOLUTION
If a dispute should arise regarding the performance of the Services the following procedure will
be used to resolve any questions of fact or interpretation not otherwise settled by agreement
between the parties. Representatives of Contractor or City will reduce such questions, and their
respective views, to writing. A copy of such documented dispute will be forwarded to both
parties involved along with recommended methods of resolution, which would be of benefit to
both parties. The representative receiving the letter will reply to the letter along with a
recommended method of resolution within ten (10) business days. If the resolution thus
obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be forwarded
to the City Manager. The City Manager will consider the facts and solutions recommended by
each party and may then opt to direct a solution to the problem. In such cases, the action of the
City Manager will be binding upon the parties involved, although nothing in this procedure will
prohibit the parties from seeking remedies available to them at law.
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20. TERMINATION
In the event of the Contractor's failure to prosecute, deliver, or perform the Services, City may
terminate this Agreement for nonperformance by notifying Contractor by certified mail of the
termination. If City decides to abandon or indefinitely postpone the work or services
contemplated by this Agreement, City may terminate this Agreement upon written notice to
Contractor. Upon notification of termination. Contractor has five (5) business days to deliver any
documents owned by City and all work in progress to City address contained in this Agreement.
City will make a determination of fact based upon the work product delivered to City and of the
percentage of work that Contractor has performed which is usable and of worth to City in having
the Agreement completed. Based upon that finding City will determine the final payment of the
Agreement.
Either party upon tendering thirty (30) days written notice to the other party may terminate this
Agreement. In this event and upon request of City, Contractor will assemble the work product
and put it in order for proper filing and closing and deliver it to City. Contractor will be paid for
work performed to the termination date; however, the total will not exceed the lump sum fee
payable under this Agreement. City will make the final determination as to the portions of tasks
completed and the compensation to be made.
21. COVENANTS AGAINST CONTINGENT FEES
Contractor warrants that Contractor has not employed or retained any company or person, other
than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that
Contractor has not paid or agreed to pay any company or person, other than a bona fide
employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration
contingent upon, or resulting from, the award or making of this Agreement. For breach or
violation of this warranty, City will have the right to annul this Agreement without liability, or, in
its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full
amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee.
22. CLAIMS AND LAWSUITS
By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must
be asserted as part of the Agreement process as set forth in this Agreement and not in
anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false
claim is submitted to City, it may be considered fraud and Contractor may be subject to criminal
prosecution. Contractor acknowledges that California Government Code sections 12650 et seg..
the False Claims Act applies to this Agreement and, provides for civil penalties where a person
knowingly submits a false claim to a public entity. These provisions include false claims made
with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of
information. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to
recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a
false claim may subject Contractor to an administrative debarment proceeding as the result of
which Contractor may be prevented to act as a Contractor on any public work or improvement
for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction
is grounds for City to terminate this Agreement.
23. JURISDICTIONS AND VENUE
Any action at law or in equity brought by either of the parties for the purpose of enforcing a right
or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the
County of San Diego, State of California, and the parties waive all provisions of law providing for
a change of venue in these proceedings to any other county.
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24. SUCCESSORS AND ASSIGNS
It is mutually understood and agreed that this Agreement will be binding upon City and
Contractor and their respective successors. Neither this Agreement or any part of it nor any
monies due or to become due under it may be assigned by Contractor without the prior consent
of City, which shall not be unreasonably withheld.
25. ENTIRE AGREEMENT
This Agreement, together with any other written document referred to or contemplated by it,
along with the purchase order for this Agreement and its provisions, embody the entire
Agreement and understanding between the parties relating to the subject matter of it. In case of
conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor
any of its provisions may be amended, modified, waived or discharged except in a writing
signed by both parties.
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26. AUTHORITY
The individuals executing this Agreement and the instruments referenced in it on behalf of
Contractor each represent and warrant that they have the legal power, right and actual authority
to bind Contractor to the terms and conditions of this Agreement.
CONTRACTOR CITY OF CARLSBAD, a municipal
corporation of the State of California
(sign here
Michael Rentner - President/Sgcf c-Ac^
Director
as authorized by the City Manager
(print name/title)
ATTEST:
(sign here)
Dave Ketcham - Vice President
(print name/title)
NGLES^ /^^H^?o"-Q
If required by City, proper notarial acknowledgment of execution by contr^)oi;7nTO5t" b^c^^
attached. If a corporation. Agreement must be signed by one corporate officer from^'e^t^iplTttte
following two groups.
Group A
Chairman,
President, or
Vice-President
Group B
Secretary,
Assistant Secretary,
CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or assistant
secretary under corporate seal empowering the officer(s) signing to bind the corporation.
APPROVED AS TO FORM:
CELIA A. BREWERTQiiV-Attorney
Assistant City Attorney
City Attorney Approved Version 1/30/13
EXHIBIT "A"
SCOPE OF SERVICES
Phase 1 - Proposition 218 Special vs. General Benefit Analysis and Preliminary
Engineer's Report for Proposed 1913/1915 Act Assessment District
Budget Development. NBS will review a budget for the projected costs ofthe improvements.
Cost categories may include, but not be limited to, capital improvements, incidental costs
(engineering, legal, City staff, consultants and ongoing administration) and all other relevant
expenses.
Preliminary District Boundaries. NBS will make preliminary determinations of the property
benefited from the proposed improvements.
• Establish tentative boundaries for the Assessment District, giving consideration to both the
project area and peripheral lands (direct and indirect benefits).
• Verify ownership based on last equalized tax roll.
Parcel Database. NBS will establish a parcel database for assessor parcels as currently shown
on the County assessor's parcel maps or development maps. The database will include land
divisions, ownership and mailing information, and parcel information relevant to the spread ofthe
assessments.
Special vs. General Benefit Analysis. NBS will analyze the proposed improvements, budgets,
location and type of improvements, special benefit, general benefit, and recent case law with legal
counsel. Meet with City staff and legal counsel to discuss appropriate and/or alternative
approaches to the proposed assessment district. Provide staff with related support for the
duration of the project.
City Review. NBS will communicate with City staff for the review of costs, improvements, statute
requirements and benefits conferred.
Separation and Quantification of Special and General Benefit. NBS will analyze
improvements, proposed boundaries, district characteristics, parcel characteristics, special and
general benefits conferred, assessment engineering standards and other sources to separate and
quantify special vs. general benefit in compliance with the special benefit requirements of
Proposition 218 for review by all stakeholders.
Preliminary Engineer's Report. Based on the results ofthe aforementioned reviews,
discussions and modifications, NBS will prepare a detailed written report (Draft Preliminary
Engineer's Report) regarding the preliminary assessment spread. The Report shall be
prepared in compliance with the California Streets and Highways Code §10204 and shall
contain the following:
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A general description of the project
Plans and specifications of the project
A detailed cost estimate
An Assessment Diagram
The Method of Assessment
The proposed assessment of each parcel in the district
A proposed maximum assessment to pay administrative expenses
Meeting Attendance. NBS will attend a total of two Assessment District-related meetings, as
requested by the City.
Phase 2 -1913/1915 Act Assessment District Formation Proceedings
PAiase 2 is optional and will onlv be performed if approved bv the Citv Council and
authorized bv Citv Staff.
1931 Act Compliance. NBS will prepare findings for inclusion in the Engineer's Report to
comply with The Special Assessment Investigation, Limitation and Majority Protest Act of
1931. This may include preparation and distribution of a property owner's petition to form the
proposed district.
Mapping. NBS will prepare maps (Assessment Diagram and Boundary Map) and related
documents as required under the Municipal Improvement Act of 1913.
Boundary Map Recordation. NBS will record the Boundary Map with County Recorder in
compliance with the Municipal Improvement Act of 1913.
Legal Notices and Ballots. NBS will prepare legal notices and ballots to be mailed to all
property owners within the boundary of the proposed assessment district listed on the last
equalized County Assessor's roll, as required, for compliance with the 1913 Act and
Proposition 218.
Confirmed Engineer's Report. NBS will revise and amend the Preliminary Engineer's
Report, including assessment roll and cost estimates, Boundary Map and Assessment
Diagram as appropriate, based on direction received. Prepare a Confirmed Engineer's Report
for submittal.
Filing of Assessment Documents. NBS will file the assessment diagram, assessment roll
and notice of assessment with the appropriate officials, such as the Superintendent of Streets,
County Recorder, Treasurer and any other officials, as required.
Assessment Notices. NBS will prepare and mail out to the property owners the 30-day
assessment notices as required by the Act.
Ballot Tabulation. NBS will tabulate the ballots returned via the most appropriate method
(bar code or other) and report the results to City.
Paid/Unpaid Assessments List. After expiration of the 30-day cash collection period, NBS
will prepare a "paid" and "unpaid" list of assessments and release the liens for assessments
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prepaid in full. NBS will update the Engineer's Report to reflect the "As Sold" conditions ofthe
1915 Act Improvement Bonds.
Meeting Attendance. NBS will attend a total of two Assessment District-related Council
meetings, including the Public Hearing for tabulation, as requested by the City.
Fee Structure
Phase 1 - Proposition 218 Special vs. General Benefit Analysis and Preliminary
Engineer's Report for Proposed 1913/1915 Act Assessment District
Consulting Fees-Zone $19,500
Estimated Expenses $1,500*
* See description of expenses below.
Phase 2 - 1913/1915 Act Assessment District Formation Proceedings
PAiase 2 is optional and will only be performed if approved by the City Council and
authorized by City Staffs
Consulting Fees-Zone15 $7,500
EstimatedExpenses $1,000
* See description of expenses below.
Total Not-To-Exceed for Phase 1 and Phase 2 $29,500
Expenses
Customary out-of-pocket expenses will be billed to the City at actual cost to NBS. These
expenses may include, but not be limited to, boundary map and assessment diagram
preparation (time, materials, plotting and all related costs), mailing fulfillment, postage, supplies,
reproduction, telephone, travel, meals and various third-party charges for data, maps, and
recording fees.
Estimated expenses include San Diego County recording fees as presented in the San Diego
County fee schedule effective January 1, 2011. The recording fees have been estimated and
subject to change at the time documents are recorded.
Additional Services
The following table shows our current hourly rates. Additional services authorized by the City,
but not included in the scope of services will be billed at this rate or the then applicable hourly
rate.
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Title Hourly Rate
Director $205
Senior Consultant/Engineer 160
Consultant 140
Analyst 120
Resource Analyst 95
Terms
Consulting fees will be invoiced on a monthly basis. Expenses will be itemized and included in
each invoice. If the project is prematurely terminated by either party or delayed for reasons
beyond NBS's control, NBS shall receive payment for work completed. Payment shall be made
within 30 days of submittal of an invoice.
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