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HomeMy WebLinkAboutC33910 - Tamarisk Utilities Undrgrnding AD - Dist 12 CITY OF PALM DESERT CITY MANAGER'S OFFICE STAFF REPORT REQUEST: AUTHORIZE THE CITY MANAGER TO ENTER INTO AN AGREEMENT WITH WILLDAN F�NANCIAL SERVICES IN AN AMOUNT NOT TO EXCEED $36,600 FOR ASSESSMENT ENGINEERING AND OTHER SERVICES RELATED TO THE PROPOSED TAMARISK UTILITIES UNDERGROUNDING ASSESSMENT DISTRICT (DISTRICT 12) SUBMITTED BY: David Hermann, Management Analyst DATE: September 25, 2014 CONTENTS: Professional Services Agreement(Contract No. C 33910 � Proposal from Willdan Financial Services Recommendation Authorize the City Manager to enter into an agreement with Willdan Financial Services in an amount not to exceed $36,600 for assessment engineering and other services related to the proposed Tamarisk Utilities Undergrounding Assessment District (Contract No. C 33910 �. Executive Summary Approval of staff's recommendation will allow the City to enter into an agreement with Willdan Financial Services for the provision of assessment engineering and other services related to the proposed Tamarisk Utility Undergrounding District (District 12) in south Palm Desert. Willdan's extensive experience related to the formation of utility undergrounding and other special assessment districts will provide the expertise and information needed to assist the City and residents within the proposed utility undergrounding district through a complicated and often protracted process. Backaround The City Council previously authorized staff to take the necessary steps to begin the process of forming the Tamarisk utility undergrounding assessment district (District 12) while directing staff to work with Southem California Edison (SCE) to determine if it would make sense to combine the Tamarisk project with a second proposed utility undergrounding project in an adjacent neighborhood (Heliotrope). SCE has since indicated that combining the two proposed utility undergrounding districts into one project would have logistical and cost benefits that would benefit property owners, SCE, and the City. .. j Staff Report Contract No. C33910 Agreement with Willdan Financial Services Related to Proposed Tamarisk Utilities Undergrounding Assessment District September 25, 2014 Page2of2 Property owners in these neighborhoods have submitted the required number of certified signatures to qualify the revised project for assistance from the City. The next step is to hire an assessment engineer and pay SCE the required Advanced Engineering Fee to begin final design of the project. Staff proposes to hire Willdan as the assessment engineer given the �rm's extensive experience in the formation of utility undergrounding and other special assessment districts. Strategic Plan Objective The undergrounding of overhead utilities is consistent with the Envision Palm Desert -� Forward Together strategic plan's goals for Land Use, Housing and Open Space as it will help preserve view corridors from expanding above ground utility infrastructure. Fiscal Analysis Willdan's proposal includes a not to exceed fee of $36,600. The City Council has already appropriated $400,000 from Account #400-4256-464-4001 to pay for engineering fees related to this proposed undergrounding project. Although the General Fund will initially advance the funds for this work, it is the intention of the Successor Agency to reimburse the City from redevelopment bond proceeds as utility undergrounding improvements are included in the bond covenants. On February 27, the City Council and the board of the Successor Agency to the Palm Desert Redevelopment Agency approved an agreement that will allow this to happen. That agreement has also been approved by the Oversight Board to the Successor Agency to the Palm Desert Redevelopment Agency. Submitted By: Reviewed and Concur: �=-f� ! David Hermann CITy C i���irector o�Finance Management Analyst APPROVED "�� DE1V?ED RECEIVED OTHER A ovaL ,r'� MEFTI G DATE� - � � ��v'le����,�,�� AYF,S: �� r1�1 OF.S: �� Jo n M. Wohlmuth, City Manager AI3SFNT: � � AI3STAIN: Vf;RIFIED BY: Oribin�l on File with City erk's Office G:Uda\David Hertnann\Word Files\PIO\Undergrounding\Tamarisk Undergrounding�Staff Report-Agreement with Willdan for Assessment Engineering Services Related to Tamarisk Undergrounding 09-25-2014.doc � • Contract No. C33910 AGREEMENT WITH WILLDAN FINANCIAL SERVICES FOR ASSESSMENT ENGINEERING AND PROFESSIONAL SERVICES RELATED TO TAMARISK (DISTRICT 12) UTILITIES UNDERGROUNDING ASSESSMENT DISTRICT CITY OF PALM DESERT PROFESSIONAL CONSULTANT SERVICES AGREEMENT 'I. PARTIES AND DATE. This Agreement is made and entered into this day of , 2014, by and befinreen the City of Pafm Desert, a municipal corporation, organized under the laws of the State of California, with its principal place of business at 73-510 Fred Waring Drive, Palm Desert, Califomia, 92260 ("City") and Willdan Financial Services a subsidiary of California Corporation Willdan Group, Inc., with its principal place of business at 27368 Via lndustria, Suite 110, Temecula, California, 92590-4856 ("Consultant"). City and Consultant are sometimes individually referred to herein as "Party" and collectively as "Parties." 2. RECITALS. 2.1 Consultant. Consultant desires to perform and assume responsibility for the provision of certain professional assessment engineering and other consulting services related to the formation of a proposed utilities undergrounding assessment district required by the City on the terms and conditions set forth in this Agreement. Consuftant represents that it is experienced in providing the aforementioned professional consulting services to public clients, is licensed in the State of Califomia, and is familiar with the plans of City. 2.2 Project. City desires to engage Consultant to render such professional assessment engineering and related consulting services related to the formation of the proposed Tamarisk (District 12) utilities undergrounding assessment district project ("Project") as set forth in this Agreement. 3. TERMS. 3.1 Scope of Services and Term. 3.1.1 General Scoqe of Services. Consultant promises and agrees to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional assessment engineering and related consulting services necessary for the Project ("Services"). The Services are more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, n�les and regulations. Contract No. C33910 3.1.2 Term. The term of this Agreement shall be from the date of approval until the scope of work is completed, unless earlier terminated as provided herein. Consultant shall complete the Services within the term of this Agreement, and shall meet any other established schedules and deadlines. 3.2 Responsibilities of Consultant, 3.2.1 Independent Contractor; Control and Payment of Subordinates. The Services shall be performed by Consultant or under its supervision. Consultant will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Consultant on an independent contractor basis and not as an employee. Consultant retains the right to perform similar or different services for others during the term of this Agreement. Any additional personnel performing the Services under this Agreement on behalf of Consultant shall also not be employees of City and shall at all times be under Consultant's exclusive direction and control. Neither City, nor any of its officials, officers, directors, empioyees or agents shall have control over the conduct of Consultant or any of Consultant's officers, employees, or agents, except as set forth in this Agreement. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, inclt�ding, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance. 3.2.2 Schedule of Services. Consultant shall pertorm the Services expeditiously, within the term of this Agreement, and in accordance with the Schedule of Services set forth in Exhibit "B" attached hereto and incorporated herein by reference. Consultant represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate ConsultanYs conformance with the Schedule, City shall respond to Consultant's submittals in a timely manner. Upon request of City, Consultant shall provide a more detailed schedule of anticipated performance to meet the Schedule of Services. 3.2.3 Conformance to Applicable Requirements. All work prepared by Consultant shall be subject to the approval of City. 3.2.4 Substitution of Kev Personnel. Consultant has represented to City that certain key personnel wiU perForm and coordinate the Services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval of City. In the event that City and Consultant cannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause. As discussed below, any personnel who fail or refuse to perform the Services in a manner acceptable to the City, or who are determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project or a threat to the safety of persons or property, shall be promptly removed from the Project by the Consultant at the request of the City. The key personnel for performance of this Agreement are as follows: Jim McQuire, Senior Project Manager, District Administration Services Group. 3.2.5 City's Representative. The City hereby designates David Hermann, Management Analyst, or his/her designee, to act as its representative in all matters pertaining to the administration and performance of this Agreement ("City's Representative"). Consultant shall not accept direction or orders from any person other than the City Manager, City's Contract No. C33910 Representative or his/her designee. City's Representative shall have the power to act on behalf of the City for review and approval of all products submitted by Consultant, but not the authority to enlarge the Scope of Work or change the total compensation due to Consultant under this Agreement. The City Manager shall be authorized to act on City's behalf and to execute all necessary documents which increase the Scope of Work or change the ConsultanYs total compensation, subject to the provisions contained in Section 3.3 of this Agreement. 3.2.6 Consultant's Reqresentative. Consultant hereby designates Jim McGuire, Senior Project Manager, District Administration Services Group, or his/her designee, to act as its representative for the performance of this Agreement ("Consultant's Representative"). Consultant's Representative shall have full authority to represent and act on behalf of the Consultant for all purposes under this Agreement. The ConsultanYs Representative shall supervise and direct the Services, using his/her best skill and attention, and shall be responsible for all means, methods, techniques, sequences, and procedures and for the satisfactory coordination of all portions of the Services under this Agreement. 3.2.7 Coordination of Services. Consultant agrees to work closely with City staff in the performance of Services and shall be available to City's staff, consultants and other staff at all times. 3.2.8 Standard of Care; Performance of Employees. Consultant shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains that it is skilled in the professional calling necessary to perform the Services. Consultant warrants that all employees and subconsultants shall have sufficient skill and experience to perform the Services assigned to them. Finally, Consultant represents that it, its employees and subconsultants have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, and that such licenses and approvals shall be maintained throughout the term of this Agreement. As provided for in the indemnification provisions of this Agreement, Consultant shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions which are caused by the ConsultanYs failure to comply with the standard of care provided for herein. Any employee of the Consultant or its sub-consultants who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safery of persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from the Project by the Consultant and shall not be re-employed to perform any of the Services or to work on the Project. 3.2.9 Laws and Requlations. Consultant shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all violations of such laws and regulations in connection with Services. If Consultant perForms any work knowing it to be contrary to such laws, rules and regulations, Consultant shall be solely responsible for all costs arising therefrom. Consultant shall defend, indemnify and hold City, its officials, directors, officers, employees, agents, and volunteers free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations. Contract No. C33910 3.2.10 Insurance. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to the City that it has secured all insurance required under this section. In addition, Consultant shall not allow any subconsultant to commence work on any subcontract until it has provided evidence satisfactory to the City that the subconsultant has secured all insurance required under this section. Without limiting ConsultanYs 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. General Liabilitv insurance: Consultant shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $1,000,000 per occurrence, $2,000,000 general aggregate, for bodily injury, personal injury, and property damage, including without limitation, blanket contractual liability. Defense costs shall be paid in addition to the limits. The policy shall contain no endorsements or provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; or (3) contain any other exclusion contrary to the Agreement. Automobile Liabilitv Insurance: Consultant shall maintain automobils insurance at least as broad as Insurance Services O�ce form CA 00 01 covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non-owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident. Professional Liabilitv (Errors 8� 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 $1,000,000 per claim and 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. Covered professional services shall specifically include all work to be performed under the Agreement and delete any exclusions that may potentially affect the work to be performed (for example, any exclusions relating to lead, asbestos, pollution, testing, underground storage tanks, laboratory analysis, soil work, etc.). If coverage is written on a claims-made basis, the retroactive date shall precede the effective date of the initial Agreement and continuous coverage will be maintained or an extended reporting period will be exercised for a period of at least three (3) years from termination or expiration of this Agreement. Workers' Compensation Insurance: Consultant shall maintain Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance (with limits of at least $1,000,000). Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of the City of Palm Desert, its officers, agents, employees and volunteers. Other provisions or requirements Insurance for Subconsultants: All Subconsultants shall be included as additional insureds under the Consultant's policies, or the Consultant shall be responsible for causing Subconsultants to purchase the appropriate insurance in compliance with the terms of these Contract No. C33910 Insurance Requirements, including adding the City as an Additional Insured to the Subconsultant's policies. Consultant shall provide to City satisfactory evidence as required under Insurance Section of this Agreement. Proof 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. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. Current certification of insurance shall be kept on file with City at all times during the term of this contract. City reserves the right to require complete, certified copies of all required insurance policies, at any time. Duration of Coveracte: Consultant shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Work hereunder by Consultant, his agents, representatives, employees or subconsultants. Citv's Riqhts of Enforcement: In the event any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments. In the altemative, City may cancel this Agreement. 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 Califomia, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VI (or larger) in accordance with the latest edition of BesYs Key Rating Guide, unless otherwise approved by the City's Risk Manager. Waiver of Subroaation: All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against the City of Palm Desert, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against the City of Palm Desert, and shall require similar written express waivers and insurance clauses from each of its subconsultants. Enforcement of Contract Provisions (Non Estoppel): Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of non-compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. Primary and Non-Contributinq Insurance: All insurance coverages shall be primary and any other insurance, deductible, or self-insurance maintained by the indemnified parties shall not contribute with this primary insurance. Policies shall contain or be endorsed to contain such provisio�s. Reauirements Not Limitins�: 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 Contract No. C33910 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. Notice of Cancellation: Consultant agrees to oblige its insurance agent or broker and insurers to provide to City with a thirty (30) day notice of cancellation (except for nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage for each required coverage. Additional Insured Status: General liability, Automobile Liability, and if applicable, Pollution Liability, policies shall provide or be endorsed to provide that the City of Palm Desert and its officers, officials, employees, and agents shall be additional insureds with regard to liability and defense of suits or claims arising out of the perfarmance of the Agreement, under such policies. This provision shall also apply to any excess liability policies. Citv's Riqht to Revise Sqecifications: The City reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the Consultant ninety (90) days advance written notice of such change. If such change results in substantial additional cost to the Consultant, the City and Consultant may renegotiate ConsultanYs compensation. 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 specifications unless approved by City. Timelv Notice of Claims: Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from ConsultanYs performance under this Agreement, and that involve or may involve coverage under any of the required liability policies. Safety: Consultant shatl execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federai laws, rules and regulations, and shafl exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed. Safety precautions, where applicable, shall include, but shall not be limited to: (A) adequate life protection and lifesaving equipment and procedures; (B) instructions in accident prevention for all employees and subconsultants, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks, confined space procedures, trenching and shoring, equipment and other safety devices, equipment and wearing apparel as are necessary or lawfully required to prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures. Additional Insurance: Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 3.3 Fees and Payments. contract tvo. C33910 3.3.1 Compensation. Consultant shall receive compensation, including authorized reimbursements, for all Services rendered under this Agreement at the rates set forth in Exhibit "C" attached hereto and incorporated herein by reference. The total compensation shall not exceed Thirty-six thousand, six-hundred dollars ($36,600) without authorization of the City Council or City Manager, as applicable, per the Paim Desert Municipal Code. Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement. 3.3.2 Payment of Comqensation. Consultant shall submit to City a monthly invoice which indicates work completed and hours of Services rendered by Consultant. The invoice shall describe the amount of Services provided since the initial commencement date, or since the start of the subsequent billing periods, as appropriate, through the date of the invoice. City shall, within 30 days of receiving such invoice, review the invoice and pay all non- disputed and approved charges thereon. If the City disputes any of Consultant's fees, the City shall give written notice to Consultant within thirty (30) days of receipt of an invoice of any disputed fees set forth therein. 3.3.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any expenses unless authorized in writing by City, or included in Exhibit "C" of this Agreement. 3.3.4 Extra Work. At any time during the term of this Agreement, City may request that Consultant perform Extra Work. As used herein, "Extra Work" means any work which is determined by City to be necessary for the proper completion of the Project, but which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement. Consultant shall not pertorm, nor be compensated for, Extra Work without aufhorization from the City Council or City Manager, as applicable, per the Palm Desert Municipal Code. 3.3.5 Rate Increases. In the event that this Agreement is renewed pursuant to Section 3.1.2, the rate set forth in Exhibit "C" may be adjusted each year at the time of renewal as set forth in Exhibit "C." 3.3.6 Prevailing Wa4es. Consultant is aware of the requirements of California Labor Code Section 1720, et seg., and 1770, et se�c ., as well as California Code of Regulations, Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on "public works" and "maintenance" projects. If the Services are being performed as part of an applicable "public works" or "maintenance" project, as defined by the Prevailing Wage Laws, Consultant agrees to fully comply with such Prevailing Wage Laws. City shail provide Consultant with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement. Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Services available to interested parties upon request, and shall post copies at the Consultant's principal place of business and at the project site. Consultant shall defend, indemnify and hold the City, its officials, officers, employees, agents, and volunteers free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. Contract No. C33910 3.4 Accounting Records. 3.4.1 Maintenance and Inspection. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. 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 under this Agreement. 3.5 General Provisions. 3.5.1 Termination of Agreement. 3.5.1.1 Grounds for Termination. City may, by written notice to Consultant, terminate the whole or any part of this Agreement at any time and without cause by giving written notice to Consultant of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. Upon termination, Consultant shall be compensated only for those services which have been adequately rendered to City, and Consultant shall be entitled to no further compensation. Consultant may not terminate this Agreement except for cause. 3.5.1.2 Effect of Termination. If this Agreement is terminated as provided herein, City may require Consultant to provide all finished or unfinished Documents and Data and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shaN be required to provide such document and other information within fifteen (15) days of the request. 3.5.1.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms and in such manner as it may determine appropriate, services similar to those terminated. 3.5.2 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose: Consultant: Willdan Financial Services 27368 Via lndustria, Suite 110, Temecula, Califomia, 92590-4856 ATTN: Jim McGuire, Senior Project Manager City: City of Palm Deser� 73-510 Fred Waring Drive Palm Desert, CA 92260 ATTN: David Hermann, Management Analyst Such notice shall be deemed made when personaHy delivered or when mailed, forty- eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 3.5.3 Ownership of Materials and Confidentialitv. contra�t No. C33910 3.5.3.1 Documents & Data; Licensinq of Intellectual Property. This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings and data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement ("Documents & Data"). Consultant shall require all subconsultants to agree in writing that City is granted a non-exclusive and perpetual license for any Documents 8� Data the subconsultant prepares under this Agreement. Consultant represents and warrants that Consultant has the legal right to license any and aN Documents � Data. Consultant makes no such representation and warranty in regard to Documents & Data which were prepared by design professionals other than Consultant or provided to Consultant by the City. City shall not be limited in any way in its use of the Documents & Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City's sole risk. 3.5.3.2 Confidentialitv. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other pocuments � Data either created by or provided to Consuitant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of City, be used by Consultant for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project. Nothing fumished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use City's name or insignia, photographs of the Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City. 3.5.4 Cooqeration: Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate, or convenient to attain the purposes of this Agreement. 3.5.5 Attorney's Fees. If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorney's fees and all other costs of such action. 3.5.6 I ndem nification. 3.5.6.1 Scope of Indemnity. To the fullest extent permitted by law, Consultant shall defend, indemnify and hold the City, its directors, officials, officers, employees, volunteers and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any alleged acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the ConsultanYs Services, the Project or this Agreement, including without limitation the payment of all consequential damages, expert witness fees and attorneys fees and other related costs and expenses. Notwithstanding the foregoing, to the extent Contract No. C33910 Consultant's Services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant. 3.5.6.2 Additional IndemnitYObliqations. To the fullest extent permitted by law, Consultant shall defend, with counsel of City's choosing and at ConsultanYs own cost, expense and risk, any and all claims, suits, actions or other proceedings of every kind covered by Section 3.5.6.1 that may be brought or instituted against City or its directors, officials, officers, employees, volunteers and agents. Consultant shall pay and satisfy any judgment, award or decree that may be rendered against City or its directors, officials, officers, employees, volunteers and agents as part of any such claim, suit, action or other proceeding. Consultant shall also reimburse City for the cost of any settlement paid by City or its directors, officials, officers, employees, agents or volunteers as par� of any such claim, suit, action or other proceeding. Such reimbursement shall include payment for City's attomey's fees and costs, including expert witness fees. Consultant shall reimburse City and its directors, officials, officers, employees, agents, and/or volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its directors, officials officers, employees, agents, or volunteers. 3.5.7 Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may only be modified by a writing signed by both parties. 3.5.8 Governing Law. This Agreement shall be govemed by the laws of the State of California. Venue shall be in Riverside County. 3.5.9 Time of Essence. Time is of the essence for each and every provision of this Agreement. 3.5.10 City's Riqht to Employ Other Consultants. City reserves right to employ other consultants in connection with this Project. 3.5.11 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties. 3.5.12 Assignment or Transfer. Consultant shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without the prior wRitten consent of the City. Any attempt to do so shall be null and void, and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. 3.5.13 Construction; References: Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Consultant include all personnel, employees, Contract No. C33910 agents, and subconsultants of Consultant, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement. 3.5.14 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties. 3.5.15 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise. 3.5.16 No Third-Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. 3.5.17 lnvalidity; Severability. !f any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect. 3.5.18 Prohibited Interests. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 3.5.19 Equal Oqportunity EmploYment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subconsultant, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex, or age. Such non-discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. 3.5.20 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker's Compensation, or to unde�take self- insurance in accordance with the provisions of that Code and agrees to comply with such provisions before commencing the performance of the Services. 3.5.21 Authority to Enter Agreement. Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party. Contract No. C33910 3.5.22 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original. 3.6 Subcontracting. 3.6.1 Prior Approval Required. Consultant shall not subcontract any portion of the work required by this Agreement, except as expressly stated herein, without prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. CITY OF PALM DESERT WILLDAN FINANCIAL SERVICES By: BY� Mayor or City Manager [INSERT NAME AND TITLE] By: [INSERT NAME AND TITLE] ATTEST: By: [INSERT NAME] City Clerk APPROVED AS TO FORM: By: Best Best & Krieger LLP City Attorney • � Contract No. C33910 EXHIBIT "A" SCOPE OF SERVICES Contract No. C33910 your Financial Services reach EXHIBIT "A" SCOPE OF SERVICES September 12, 2014 Mr. David Hermann Public Information Officer City of Palm Desert 73-510 Fred Waring Drive Palm Desert, California 92260 Re: Proposal for the Formation of an Underground Utility Assessment District for the City of Palm Desert Dear Mr. Hermann: As a follow up to our previous conversations, Wil►dan Financial Services ("Willdan") is pleased to submit this proposal to assist the City of Palm Desert ("City") with the formation of an underground utility assessment district. Given our previous experience assisting the City with the formation of numerous special districts, as well as our ongoing annual administration of your special districts, we feel that we are ideally suited to undertake this project and support City staff. We appreciate this opportunity to present this proposal for your review and hope that we may be of service to you in the near future. If you have any questions regarding this proposal, please contact me directly at (909) 229-0826, or via email at imcauireawilldan.com. Sincerely, Willdan Financial Services Jim McGuire, Senior Project Manager District Administration Services Group Enclosure Engineering and Planning 1 Energy Efficiency and Sustainability 1 Financial and Economic Consulting 1 National Preparedness and Interoperability 951.587.3500 1800.755.6864 1 fax: 951.587.3510 1 27368 Via Industria, Suite 110. Temecula, California 92590-4856 1 www.willdan.com WWILLDAN I Financial Services Scope of Services Willdan Financial Services' ("Willdan") proposed work plan to the City of Palm Desert ("City") specific to the formation of the proposed Underground Utility Assessment District has been separated into two phases: ■ Phase I: District Formation Services; and Phase II: Post -formation Services. Each phase is described by task below, whereby we explain how each task will be accomplished and identify associated meetings and deliverables. Task 1: Kick-off Meeting/Conference CaII Objective: Identify key personnel involved in the project, establish effective lines of communication, and assist City staff and the financing team in establishing a project schedule. Description: An initial kick-off meeting will be conducted with City staff and consultants to discuss procedures and responsibilities, various project issues and City goals. This meeting will likely include specific discussions of the City's priorities; political considerations; overall project timeline; budget information; and availability and access to pertinent documentation, maps and data. These discussions may also touch upon potential policy and legal issues (if any) that may be of concern, as well as any specific implementation steps. Meetings: One (1) kick-off meeting or conference call. Deliverables: Willdan: Timeline. Citv: Data, records, plans, diagrams and estimates. Task 2: Data Gathering Objectives: Gather current, detailed project information, and prepare the parcel database. Description: Willdan will gather project information, construction plans and cost estimates from the City, County Assessor's and Auditor/Controller's Offices, and the City's financial advisor. In addition, we will conduct a visual onsite tour of the project area to evaluate such items as potential view enhancements, and proximity to existing overhead facilities and poles. Gathered information will be vital in the development of the assessment methodology, and in determining benefit allocable to specific parcels in the proposed district. To ensure accuracy and completeness, information will be gathered through meetings, correspondence, and follow-up phone calls. Willdan will create a detailed parcel database displaying the following: Assessor's Parcel Number (APN); • Assessment number; • Lot area; • Front footage; • Assessed land and structure values; • County land use; • Development status; • Ownership; Proposal for the Formation of an Underground Utility Assessment District 1 WWILLDAN financaai Services ■ Property address; • Mailing address; and • Any other necessary information. The database will be used to calculate each parcel's assessment amount, and to generate the assessment roll and mailing list for balloting and noticing requirements. An electronic file of this data will be provided to the City. Meetings: Conduct a visual onsite tour of the area to be included in the proposed district. Deliverables: Wilidan: Preliminary database. City: None. Task 3: Report Methodology Objective: Prepare a preliminary assessment analysis. Descriptin.• Based on gathered information, the following will be prepared: 1. Preliminary assessment analysis. Wilidan will identify and describe the special benefits received by properties within the proposed district, and establish a reasonable special benefit nexus between improvements and properties. From benefit variations within the proposed district and/or surrounding properties, we will prepare a recommended district structure; a Method of Apportionment; and assessment evaluation to discuss with City staff, including any identified general benefit or other revenue contributions. 2. An assessment roll and related computations from the parcel database. The roll will include the following information. ■ Assessor's parcels within the proposed district boundaries; the assignment of an assessment number for each parcel; and, as necessary, zones of benefit. • Identification of the appropriate measurement factors upon which to spread the assessment lien, and the assignment of factors to each parcel. Computation of each parcel's assessment lien based upon each parcel's assigned factors and special benefit improvement costs. The assessment methodology will take into consideration the land use potential, density, and acreage; and, as appropriate, safety, improved reliability, overall neighborhood aesthetics, and aspects of properties' view enhancement. Finally, as we have done in previous undergrounding assessments, we will include the provision for adjustments for properties adjacent to facilities placed above ground, such as transformers, or for easements granted, as necessary. 3. A boundary map and an 18-inch by 26-inch assessment diagram suitable for recording, as well as in an 8-inch by 11-inch format. Two (2) originals and two (2) copies will be provided to the City. The assessment diagram will include the following items. ■ Legal parcels that will exist at the time of district formation. • APNs or tract and lot information for each parcel. • The assessment number assigned to each lot corresponding to the assessment roll. ■ Boundaries of benefit zones, if applicable. Proposal for the Formation of an Underground Utility Assessment District 2 Meetings: Deliverables: Task 4: Objective: Description: Meetings: Deliverables: Task 5: Objective: *"WILLDAN Financial Services Based on the City's and bond counsel's feedback, as well as from our engineering analysis of general/special benefits, Willdan will determine the improvements for district inclusion; and prepare a narrative description for the Engineer's Report. 4. Estimated cost of district improvement items, incidentals, and issuance costs for inclusion in the Engineer's Report. The project cost estimate, including incidentals, will be coordinated with the City engineer. Bond issuance costs will be discussed with team members to ensure that all appropriate costs have been correctly integrated (e.g., such as capitalized interest, Official Statement printing, reserve fund level, and any required bond security). Based on district boundaries, Willdan will develop the Method of Assessment. To ensure that all considerations have been addressed, the method will be discussed with project team members; and then finalized for the preliminary and final Engineer's Report(s). None. Willdan: Preliminary assessment analysis, assessment roll, boundary map, cost estimate and Method of Assessment. City: None. Property Owner Workshop Provide property owners with background information to assist them in making informed decisions about the new assessment. Attend the prescheduled community meeting/workshop, acting as technical support to City staff to answer questions and provide information related to the calculation of the proposed assessment, the improvements and services they fund, and to describe the balloting process. Willdan will work with the City to prepare and mail a workshop invitation to each property owner as part of an overall education effort. The intent of the mailer would be to invite affected property owners to a public workshop, but may also be designed to be an informational piece that provides property owners with basic information about the District and the proposed assessment(s). While the mailer may be in the form of a postcard invitation that merely outlines the time and place of a workshop to discuss the proposed assessment(s), it could be expanded to an informational piece that will convey the significance and reasons for the new assessment in an easy -to -understand format. Such a piece would likely be in a tri-fold format, double -sided, in one (1) color. However a more elaborate mailer utilizing multi - colors and/or graphics can be created if the City so desires. Attendance at public workshop(s) with property owners prior to finalizing the Engineer's Report. Willdan: At the City's request, coordinate the printing, processing and mailing of the invitation for the prescheduled workshop. City: None. Prepare Engineer's Report Compile items and data from prior tasks into the Engineer's Report, submit Report to the City for review and comment, and attend City Council meeting for adoption of preliminary Proposal for the Formation of an Underground Utility Assessment District 3 Description: Meetings: Deliverables: Task 6: Objective: Description: Meetings: Deliverables: WWI LLDAN I Financial Services Report and Resolution of Intention (ROI). Willdan will compile items and data from prior tasks into the preliminary Engineer's Report. Submit the report to City staff for review and comment (additional copies will be provided to the financing team), and file the Engineer's Report with the Superintendent of Streets and City Clerk. We will present the Report to City Council and provide information and answer questions regarding the district formation process and the Report. The Engineer's Report will include the following components: • A description of proposed funded public facilities; ■ Plans and specifications (or reference to on -file plans and specs); • A detailed cost estimate of proposed facilities, including bond issuance estimates, preliminary and final costs, and other incidentals costs; • The assessment roll indicating APN, map reference identification number coinciding with APN, and assessment lien; • The Method of Assessment; • The assessment diagram; • The maximum annual administrative assessment add -on; • A schedule indicating right-of-way to be acquired (if necessary), right-of-way certificate, and Certification of Completion; • 1931 Act information and tables; and ■ A public property schedule indicating assessed public property in the proposed district (if necessary). One (1) City Council meeting for presentation of the Engineer's Report and adoption of the ROI. Willdan: Preliminary Engineer's Report. City: None. Prepare and Mail Notices and Ballots and Attend Public Hearing Prepare and mail the public hearing legal notice and protest ballots and attend public hearing to answer questions and assist in the tabulation of ballots. Upon Council adoption of the preliminary Engineer's Report and ROI, Willdan will prepare and mail the public hearing legal notice and protest ballots, and assure conformity to the applicable legislation. The legal notice will serve as an informational mailer providing the time, date, and place of the public hearing. A signed declaration will be provided to the City indicating that notices and ballots were mailed in accordance with designated requirements. Property owner ballots will include the following: • Assessor's Parcel Number; • Property owner and mailing address (or situs address derived from discussions with bond counsel and City staff); • Proposed assessment amount; and ■ Method of Assessment. Willdan will attend the public hearing, and prepare and present (if necessary) the Engineer's Report. We will also coordinate with the City in tabulating ballots upon conclusion of the public hearing. One (1) City Council meeting for: 1) Adoption of the Engineer's Report, and 2) public hearing and ballot tabulation. Willdan: Engineer's Report, legal notice, and protest ballots. City: Time, date, and place of the public hearing, envelopes for mailing. Proposal for the Formation of an Underground Utility Assessment District 4 WILLDAN 1WI Finandal Services If the district is not formed, our services are concluded. If, however, the district is formed, we will notify property owners of their final assessments and prepayment amounts, assist the finance team with required data for funding improvements, and record necessary documents, as demonstrated by the following tasks. Task 7: Recording of Documents Objectives: Provide and record the assessment diagram and Notice of Assessment. Description: Willdan will provide the assessment diagram and Notice of Assessment to the City, obtain appropriate signatures, and record these documents at the County Recorder's Office. Meetings: Deliverables: Task 8: Objective: Description: Meetings: Deliverables: Task 9: Objective: Description: Meetings: Deliverables: Task 10: Objective: Description: Meetings: None. Willdan: Assessment diagram and Notice of Assessment. City: Signatures on documents to be recorded. Mailing of Notice of Confirmed Assessment Prepare and mail confirmed assessment apportionment and Notice of Assessment. The confirmed assessment and Notice of Assessment will be prepared and mailed to each property owner of record within the proposed district. This notice will mark the beginning of the 30-day cash collection period and will offer a discounted payoff amount to those property owners wishing to satisfy their assessment obligation in cash prior to bond sale. A certificate confirming the completion of this task will be provided to the City. None. Willdan: Completed Notice of Assessment, and completion certification. City: None. Prepare Paid / Unpaid List Coordinate and confirm payoffs, and prepare paid/unpaid assessment list. At the conclusion of the 30-day cash collection period, recordation of payoffs will be coordinated with the City; the paid / unpaid assessments list will be prepared; and data will be compiled for the final bond documents. None. Willdan: Paid / unpaid assessment list. City: None. Prepare Official Statement Tables Provide information and review documents. As necessary, Willdan will provide information and review the preliminary Official Statement or state loan documents. Data tables will, likewise, be developed for the Official Statement, including: • Value -to -lien summaries; • Top owners; • Development status; and • Other data required by the financing team. None. Proposal for the Formation of an Underground Utility Assessment District 5 WWI LLDAN Financial Services Deliverables: Willdan: Review of preliminary Official Statement / loan documents; development of data tables. Task 11: Objective: Description: Meetings: Deliverables: Task 12: Objective: Description: Meetings: Deliverables: City: None. Prepare Final Report Prepare and file the final Engineer's Report. A final Engineer's Report will be prepared to reflect both cost savings from the originally estimated amount and parcels whose assessments were paid off during the 30-day cash collection period. The final report will be filed with the City Clerk and Superintendent of Streets. None. Willdan: Final Engineer's Report. City: None. Meetings and Other Communication Participate in conference calls, and answer any questions. Willdan will participate in conference calls with City staff, bond counsel, financial advisor, bond underwriter, appraiser, as well as with any other project consultants. We will be available to answer questions; and provide information to property owners, project proponents, community association representatives, and to other interested parties. Conference calls, as necessary. Willdan: None. City: None. For this project, the City will kindly provide the following information. • Complete district documentation and data, including electronic copies of pertinent information (e.g., maps, records, plans and documentation related to the proposed improvements and proposed property to be included within the district). • Information related to City's land use and zoning policies (as necessary). • Utilities' cost estimate information and updates (as appropriate), along with diagrams of proposed and existing facilities. • Maps, diagrams, or photographs of the proposed area within the district's boundaries. • Opinions (as requested) from the City attorney's office. To complete our analysis, Willdan will rely upon the validity and accuracy of the City's data and documentation. Willdan will provide its professional expertise in preparing resolutions, petitions, notices, ballots, or other legal documents. However, as we do not practice law, we ask that the City attorney, or other designated counsel, review all documents. We will, nevertheless, assist your attorney in identifying any pertinent legal issues. Proposal for the Formation of an Underground Utility Assessment District 6 Financial Services IV Fee for Services WI LLDAN Willdan will perform the tasks identified in the Scope of Services section for the not -to -exceed fee of $36,600. The table below provides a breakdown of this fee by phase. City of Palm Desert Underground Utility Assessment District Formation Fee for Services Phase I: District Formation Services Task 1 - Task 3 Task 4 Total Phase I Cost Phase II' Post Formation Services Task 5 - Task 6 Task7--Task12 Total Phase II Cost Please note the following: • Our fee will not be contingent on the outcome of the proposed formation of the district. • The fee identified for Phase I includes attendance at up to five meetings/presentations and one (1) site visit. It is anticipated that an additional meeting, which is not identified within our scope, could be necessary to discuss the project. • Additional meetings or tasks outside our proposed scope of work will require an additional fee. • Telephone conference calls are not considered "meetings" for the purpose of our proposal and are not limited by our scope of services. • We will invoice monthly based on percentage of project completion. Proposal for the Formation of an Underground Utility Assessment District 7 WFinancjal Services WI LLDAN Additional Services Additional services may be authorized and will be billed at our then -current hourly overhead consulting rates. Our current hourly rates are: Willdan Financial Services Hourly Rate Schedule Position Group Manager Principal Consultant/Engineer Senior Project Manager Project Manager Senior Design Engineer Senior Project Analyst Senior Analyst Analyst Analyst Assistant Property Owner Services Representative Support Staff Hourly $210 $200 $165 $145 $139 $130 $120 $100 $75 $55 $50 Proposal for the Formation of an Underground Utility Assessment District 8