Item 2 - Award Consultant Agreement to NBS Government Finance Group for LMD Assessment & Re-Engineering Services & Appropriation of FundsNovember 7, 2023, Item #2DATE: TO: FROM: CONTACT: SUBJECT: Summary: AGENDA RE PO RT City of Poway CITY COUNCIL November 7, 2023 Honorable Mayor and Members of the City Council Eric Heidemann, Director of Public Works ({J\ Will Wiley, Assistant Director of Public Works for Maintenance Operations ~~ (858) 668-4705 or wwiley@poway.org / T Award of Consultant Agreement to NBS Government Finance Group for Landscape Maintenance Districts Assessment and Re-Engineering Services and Appropriation of Funds to 400060-41200 Landscape Maintenance Districts (LMDs) 83-1 and 86-1 were established in June of 1983 and June of 1986, respectively, pursuant to the Landscaping and Lighting Act of 1972 for the California Streets and Highways Code. This legislation provides the means to finance the maintenance of landscape improvements within the boundaries of each district. Assessment rates are established at the time of the LMD formation with the intention of being self-supporting. LMDs 83-1 and 86-1 were formed prior to the passage of Proposition 218, the "Right to Vote on Taxes Act", passed in 1996. Among other things, Proposition 218 amended the California Constitution to include a provision which precludes districts from increasing assessment rates beyond maximum levels without the majority vote of property owners through a special ballot process. Such special balloting procedures may be implemented to give district participants the opportunity to raise the maximum allowable assessment to cover the district's maintenance needs. LMDs 83-1 and 86-1 are facing ongoing financial challenges. Stagnant 1990s revenues due to the absence of a Consumer Price Index (CPI) escalator to adjust maximum assessment levels year over year, compounded by rising inflation and maintenance costs including prevailing wage, water, and electricity, has led to lowered landscape maintenance service levels and extended tree trimming frequencies. Staff has worked to reduce costs where possible. This includes rebidding landscaping contracts, adjusting water use, and ongoing efforts to secure a Hazardous Mitigation Grant Program (HMGP). Most recently, City staff completed a Landscape Master Plan (LMP) incorporating community input, with region appropriate trees and cost-effective drought tolerant landscaping. The LMP was approved by City Council in May of 2023. In 2018, after an unsuccessful special ballot measure aimed at raising assessment rates, the Landscape Maintenance District Advisory Group (LMDAG) was formed. The LMDAG, made up of property owners within LMDs 83-1 and 86-1, was appointed by the former City Manager to provide recommendations on landscape improvements and re-engineering strategies within the LMDs. The LMDAG has worked since 2018 to provide community outreach and special district education to residents. The LMDAG works collaboratively with City staff to recommend strategies to address 1 of27
November 7, 2023, Item #2ongoing financial challenges in the districts. In May 2023, City staff and the LMDAG recommended to City Council the commencement of a re-engineering process to address ongoing maintenance concerns and analyze the current financial condition of the LMDs. The re-engineering process would culminate in the eventual re-balloting of the LMDs which would occur in 2024 The City Council directed staff to engage a professional consulting firm to provide re-engineering services and an analysis of LMDs 83-1 and 86-1. Recommended Action: It is recommended City Council: 1) Award the agreement for Landscape Maintenance Districts Assessment and Re-Engineering Services to NBS Government Finance Group; 2) Authorize appropriation of available funds in the amount of $121,050 to Fund 400060-41200; and 3) Authorize the City Manager to execute any necessary documents. Discussion: In May 2023, the City Council directed staff to commence re-engineering efforts for LMDs 83-1 and 86-1. In September 2023, staff solicited informal proposals from qualified firms to conduct a re-engineering study and analysis for LMDs 83-1 and 86-1. The re-engineering process would establish new assessment rates based on general and special benefits associated with the cost to maintain existing and proposed landscape improvements. A registered professional assessment engineer will analyze parcels that receive special benefits that would be proportionally assessed for those benefits. The agreement includes, but is not limited to, the following elements: 1) provide a Special and General Benefit analysis and verify assessment methodology; 2) update district diagrams and potential modifications; 3) prepare engineer's reports based on analysis; 4) prepare Resolutions; 5) prepare public hearing notices and ballots; 6) perform ballot tabulation; and 7) provide public outreach support. The following two (2) proposals were received: Company Bid Amount Harris & Associates $93,000 NBS Government Finance Group $126,000 After a thorough review of each proposal by City Staff and members of the LMDAG, City staff conducted reference checks and interviewed each company to discuss their proposals. Based on the understanding of the project scope, procedural and legal requirements, and changes in assessment law, staff determined NBS Government Finance Group as the firm offering the most experience relative to the project. During the interview process, NBS Government Finance Group acknowledged the strides that the City of Poway and LMDAG have taken to date. They noted the impressive presence of the existing LMD information available on the City of Poway's website, the community involvement and education efforts from the LMDAG and the creation of a Landscape Master Plan for LMDs 83-1 and 86-1. NBS Government Finance Group exhibited a clear understanding of the analysis needed to differentiate general and special benefit and the importance of gaining a consensus among property owners with effective outreach and engagement programs. After requesting a best and final offer from NBS Government Finance Group, they submitted an updated fee proposal at $121,050 estimated total cost. 2 of27
November 7, 2023, Item #2The length of agreement for consultant services will be one (1) year beginning November 8, 2023, through November 7, 2024. The agreement may be extended for up to one (1) additional one-year term. The project is expected to be completed in the Fall of 2024. A copy of the agreement is included as Attachment A. Environmental Review: This action is not subject to review under the California Environmental Act (CEQA). Fiscal Impact: Sufficient funds are available in the Capital Reserve Funds of LMD 83-1 and LMD 86-1. The total assessment cost of $121,050.00 will be split funded between the two (2) LMD districts, LMD 83-1 (Zones A, B, and C) and LMD 86-1, respectively. An appropriation in the amount of $121,050 is being requested based on the Equivalent Benefit Units (EBU) percentage for each LMD/zone as follows: Landscape LMD Capital Equivalent Benefit % of Total Portion of Maintenance District Reserve Fund Units (EBUs) EBUs Contract Cost 83-lA F2610-89010 1,391.00 56% $68,184 83-1B F2620-89010 98.52 4% $4,829 83-lC F2630-89010 26.00 1% $1,274.46 86-1 F2710-89010 954.00 39% $46,763 Totals 2,469.52 $121,050 Funds from the LMDs will be appropriated to the Public Works Director's Fund (400060-41200) for the award of an agreement for Landscape Maintenance Districts Assessment and Re-Engineering Services to NBS Government Finance Group. Public Notification: None. Attachments: A. Standard Agreement for Services Reviewed/Approved By: Assistant City Manager 3 of 27 Reviewed By: Alan Fenstermacher City Attorney Approved By: City Manager
November 7, 2023, Item #2City of Poway STANDARD AGREEMENT FOR SERVICES This Agreement, entered into this 8th day of November, 2023, by and between the CITY OF POWAY (hereinafter referred to as "City") and NBS GOVERNMENT FINANCE GROUP (hereinafter referred to as "Consultant"). RECITALS WHEREAS, City desires to obtain the services of a private consultant to perform re-engineering analysis on landscaping and appurtenant improvements, maintenance, and services on public rights-of-way for the Landscape Maintenance Districts ("LMDs" or "districts"). WHEREAS, Consultant is a professional consulting firm who conducts re-engineering and analysis for LMDs and has represented that Consultant possesses the necessary qualifications to provide such services; WHEREAS, City has authorized the preparation of an agreement to retain the services of Consultant as hereinafter set forth. NOW, THEREFORE, IT IS MUTUALLY AGREED THAT CITY DOES HEREBY RETAIN CONSUL TANT ON THE FOLLOWING TERMS AND CONDITIONS: 1. Scope of Services. Consultant shall provide services as described in Exhibit "A" entitled "Special Provisions" attached hereto and made a part hereof. 2. Compensation and Reimbursement. City shall compensate and reimburse Consultant as provided in Exhibit "A" entitled "Special Provisions" attached hereto and made a part hereof. 3. Term of Agreement. The term of this Agreement shall be as described on Exhibit "A" entitled "Special Provisions" attached hereto and made a part hereof. 4. Termination. This Agreement may be terminated with or without cause by City. Termination without cause shall be effective only upon 60-day written notice to Consultant. During said 60-day period Consultant shall perform all consulting services in accordance with this Agreement. This Agreement may be terminated by City for cause in the event of a material breach of this Agreement, misrepresentation by Consultant in connection with the formation of this Agreement or the performance of services, or the failure to perform services as directed by City. Termination for cause shall be effected by delivery of written notice of termination to Consultant. Such termination shall be effective upon delivery of said notice. 4of27 ATTACHMENT A
November 7, 2023, Item #25. Confidential Relationship. City may from time to time communicate to Consultant certain information to • enable Consultant to effectively perform the services. Consultant shall treat all such information as confidential, whether or not so identified, and shall not disclose any part thereof without the prior written consent of the City. Consultant shall limit the use and circulation of such information, even within its own organization, to the extent necessary to perform the services. The foregoing obligation of this Paragraph 5, however, shall not apply to any part of the information that (i) has been disclosed in publicly available sources of information; (ii) is, through no fault of Consultant, hereafter disclosed in publicly available sources of information; (iii) is now in the possession of Consultant without any obligation of confidentiality; or (iv) has been or is hereafter rightfully disclosed to Consultant by a third party, but only to the extent that the use or disclosure thereof has been or is rightfully authorized by that third party. Consultant shall not disclose any reports, recommendations, conclusions or other results of the services or the existence of the subject matter of this contract without the prior written consent of the City. In its performance hereunder, Consultant shall comply with all legal obligations it may now or hereafter have respecting the information or other property of any other person, firm or corporation. 6. Office Space and Clerical Support. Consultant shall provide its own office space and clerical support at its sole cost and expense. 7. Covenant Against Contingent Fees. Consultant declares that it has not employed or retained any company or person, other than a bona fide employee working for Consultant, to solicit or secure this Agreement, that it 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 the Agreement. For breach of violation of this warranty, City shall have the right to annul this Agreement without liability, or, at its sole discretion, to deduct from the Agreement price or consideration, or otherwise recover the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee. 8. Ownership of Documents. All memoranda, reports, plans, specifications, maps and other documents prepared or obtained under the terms of this Agreement shall be the property of City and shall be delivered to City by Consultant upon demand. 9. Conflict of Interest and Political Reform Act Obligations. During the term of this Agreement Consultant shall not act as consultant or perform services of any kind for any person or entity whose interests conflict in any way with those of the City of Poway. Consultant shall at all times comply with the terms of the Political Reform Act and the local conflict of interest code. Consultant shall immediately disqualify itself and shall not use its official position to influence in any way any matter coming before the City in which the Consultant has a financial interest as defined in Government Code Section 87103. Consultant represents that it has no knowledge of any financial interests which would require it to disqualify itself from any matter on which it might perform services for the City. 5 of27
November 7, 2023, Item #2"Consultant" means an individual who, pursuant to a contract with a state or local agency: (A) Makes a governmental decision whether to: 1. Approve a rate, rule or regulation; 2. Adopt or enforce a law; 3. Issue, deny, suspend, or revoke any permit, license, application, certificate, approval, order, or similar authorization or entitlement; 4. Authorize the City to enter into, modify, or renew a contract provided it is the type of contract that requires City approval; 5. Grant City approval to a contract that requires City approval and to which the City is a party, or to the specifications for such a contract; 6. Grant City approval to a plan, design, report, study, or similar item; 7. Adopt, or grant City approval of, policies, standards, or guidelines for the City, or for any subdivision thereof; or (B) Serves in a staff capacity with the City and in that capacity participates in making a governmental decision as defined in the Political Reform Act and/or implementing regulations promulgated by the Fair Political Practices Commission, or performs the same or substantially all the same duties for the City that would otherwise be performed by an individual holding a position specified in the City's Conflict of Interest Code. DISCLOSURE DETERMINATION: [gj 1. ConsultanUContractor will not be "making a government decision" or "serving in a staff capacity" as defined in Sections A and B above. No disclosure required. D 2. ConsultanUContractor will be "making a government decision" or "serving in a staff capacity" as defined in Sections A and B above. As a result, ConsultanUContractor shall be required to file a Statement of Economic Interest with the City Clerk of the City of Poway in a timely manner as required by law. Eric Heidemann, Director of Public Works 10. No Assignments. Neither any part nor all of this Agreement may be assigned or subcontracted, except as otherwise specifically provided herein, or to which City, in its sole discretion, consents to in advance thereof in writing. Any assignment or subcontracting in violation of this provision shall be void. 11. Maintenance of Records. Consultant shall maintain all books, documents, papers, employee time sheets, accounting records, and other evidence pertaining to costs incurred and shall make such materials available at its office at all reasonable times during the contract period and for three 6 of27
November 7, 2023, Item #2(3) years from the date of final payment under this Agreement, for inspection by City and copies thereof shall be furnished, if requested. 12. Independent Contractor. At all times during the term of this Agreement, Consultant shall be an independent contractor and shall not be an employee of the City of Poway. City shall have the right to control Consultant only insofar as the results of Consultant's services rendered pursuant to this Agreement; however, City shall not have the right to control the means by which Consultant accomplishes such services. 13. Licenses, Permits, Etc. Consultant represents and declares to City that it has all licenses, permits, qualifications, and approvals of whatever nature that are legally required to practice its profession. Consultant represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement, any license, permit, or approval which is legally required for Consultant to practice its profession. 14. Consultant's Insurance. Consultant shall provide insurance as set forth in Exhibit "A" entitled "Special Provisions" attached hereto and made a part hereof. 15. Indemnification. (a) For Claims (as defined herein) other than those alleged to arise from Consultant's negligent performance of professional services, City and its respective elected and appointed boards, officials, officers, agents, employees and volunteers (individually and collectively, "lndemnitees") shall have no liability to Consultant or any other person for, and Consultant shall indemnify, protect and hold harmless lndemnitees from and against, any and all liabilities, claims, actions, causes of action, proceedings, suits, damages, judgments, liens, levies, costs and expenses, including reasonable attorneys' fees and disbursements (collectively "Claims"), which lndemnitees may suffer or incur or to which lndemnitees may become subject by reason of or arising out of any injury to or death of any person(s), damage to property, loss of use of property, economic loss or otherwise occurring as a result of Consultant's negligent performance under this Agreement, or by the negligent or willful acts or omissions of Consultant, its agents, officers, directors, sub-consultants or employees. (b) For Claims alleged to arise from Consultant's negligent performance of professional services, lndemnitees shall have no liability to Consultant or any other person for, and Consultant shall indemnify and hold harmless lndemnitees from and against, any and all Claims that lndemnitees may suffer or incur or to which lndemnitees may become subject by reason of or arising out of any injury to or death of any person(s), damage to property, loss of use of property, economic loss or otherwise to the extent occurring as a result of Consultant's negligent performance of any professional services under this Agreement, or by the negligent or willful acts or omissions of Consultant, its agents, officers, directors, sub-consultants or employees, committed in performing any of professional services under this Agreement. For Claims alleged to arise from Consultant's professional services, Consultant's defense obligation to lndemnitees shall include only the reimbursement of reasonable defense costs and attorneys' fees to the extent caused by Consultant's negligence. 7 of27
November 7, 2023, Item #2(c) The foregoing obligations of Consultant shall not apply to the extent that the Claims arise from the sole negligence or willful misconduct of City or its elected and appointed boards, officials, officers, agents, employees and volunteers. (d) In any and all Claims against City by any employees of the Consultant, anyone directly or indirectly employed by it or anyone for whose acts it may be liable, the indemnification obligation under this Section 15 shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for the Consultant under worker's compensation acts, disability benefit acts or other employee benefit acts. (e) Consultant shall, upon receipt of written notice of any Claim, promptly take all action necessary to make a claim under any applicable insurance policy or policies Consultant is carrying and maintaining; however, if Consultant fails to take such action as is necessary to make a claim under any such insurance policy, Consultant shall reimburse City for any and all costs, charges, expenses, damages and liabilities incurred by City in making any claim on behalf of Consultant under any insurance policy or policies required pursuant to this Agreement. (f) The obligations described in Section 15(a) through (e) above shall not be construed to negate, abridge or otherwise reduce any other right or obligation of indemnity which would otherwise exist as to any party or person indemnified pursuant to this Section 15. (g) The rights and obligations of the parties described in this Section 15 shall survive the termination of this Agreement. 16. Assumption of Risk. Except for injuries to persons caused by the willful misconduct of any lndemnitee and not covered by insurance maintained, or required by this Agreement to be maintained, by Consultant: (a) Consultant hereby assumes the risk of any and all injury and damage to the personnel (including death) and property of Consultant that occurs in the course of, or in connection with, the performance of Consultant's obligations under this Agreement, including but not limited to Consultant's Scope of Services; and (b) it is hereby agreed that the lndemnitees are not to be liable for injury or damage which may be sustained by the person, goods or property of Consultant or its employees in connection with Consultant's performance its obligations under this Agreement, including but not limited to Consultant's Scope of Services. 17. Consultant Not an Agent. Except as City may specify in writing, Consultant shall have no authority, expressed or implied, to act on behalf of City in any capacity whatsoever as an agent. Consultant shall have no authority, expressed or implied, pursuant to this Agreement to bind City to any obligation whatsoever. 18. Personnel. Consultant shall assign qualified and certified personnel to perform requested services. The City shall have the right to review and disapprove personnel for assignment to Poway projects. City shall have the unrestricted right to order the removal of any person(s) assigned by Consultant by giving oral or written notice to Consultant to such effect. 8 of27
November 7, 2023, Item #2Consultant's personnel shall at all times comply with City's drug and alcohol policies then in effect. 19. Notices. Notices shall be given as described on Exhibit "A" entitled "Special Provisions" attached hereto and made a part hereof. 20. Governing Law, Forum Selection and Attorneys' Fees. This Agreement shall be governed by, and construed in accordance with, the laws of the State of California. Each party to this Agreement consents to personal jurisdiction in San Diego County, California, and hereby authorizes and accepts service of process sufficient for personal jurisdiction by first class mail, registered or certified, postage prepaid, to its address for giving notice as set forth in Exhibit "A" hereto. Any action to enforce or interpret the terms or conditions of this Agreement shall be brought in the Superior Court in San Diego County, Central Division, unless the parties mutually agree to submit their dispute to arbitration. Consultant hereby waives any right to remove any such action from San Diego County as is otherwise permitted by California Code of Civil Procedure section 394. The prevailing party in any such action or proceeding shall be entitled to recover all of its reasonable litigation expenses, including its expert fees, attorneys' fees, courts costs, arbitration costs, and any other fees. Notwithstanding the foregoing, in the event that the subject of such an action is compensation claimed by Consultant in the event of termination, Consultant's damages shall be limited to compensation for the 60-day period for which Consultant would have been entitled to receive compensation if terminated without cause, and neither party shall be entitled to recover their litigation expenses. 21. Gender. Whether referred to in the masculine, feminine, or as "it," "Consultant" shall mean the individual or corporate consultant and any and all employees of consultant providing services hereunder. 22. Counterparts. This Agreement (and any amendments) may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute one and the same instrument. Documents delivered by telephonic facsimile transmission shall be valid and binding. 23. Entire Agreement. This Agreement shall constitute the entire understanding between Consultant and City relating to the terms and conditions of the services to be performed by Consultant. No agreements, representations or promises made by either party, whether oral or in writing, shall be of any force or effect unless it is in writing and executed by the party to be bound thereby. 24. Certification and Indemnification Regarding Public Employees' Retirement Law/Pension Reform Act of 2013. Contractor hereby certifies that all persons providing services to City by Contractor are not current members of the California Public Employees' Retirement System (CalPERS) and shall not become members of CalPERS while providing services to City. 9 of27
November 7, 2023, Item #2Contractor further provides that in the event Contractor assigns a retired annuitant receiving a pension benefit from CalPERS to perform services for City, the retired • annuitant is in full compliance with Government Code section 7522.56. A copy of Government Code section 7522.56 is attached hereto as Exhibit "B." Further, Contractor hereby fully and unconditionally indemnifies City from all penalties, fees, employer and employee contributions, or any other assessments imposed by CalPERS in the event CalPERS determines the person assigned by Contractor to provide services to City has been misclassified. 25. Severability. If any provision of this Agreement is determined by any court of competent jurisdiction or arbitrator to be invalid, illegal, or unenforceable to any extent, that provision shall, if possible, be construed as though more narrowly drawn, if a narrower construction would avoid such invalidity, illegality, or unenforceability or, if that is not possible, such provision shall, to the extent of such invalidity, illegality, or unenforceability, be severed, and the remaining provisions of this Agreement shall remain in effect. (Remainder of page intentionally left blank) 10 of27
November 7, 2023, Item #2IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement on the date first above written. CITY OF POWAY By: __________ _ Chris Hazeltine, City Manager Date: ___________ _ ATTEST: Carrie Gallagher, CMC, City Clerk APPROVED AS TO FORM: (J.k. 1vf;;tt::. By: ____________ _ Alan Fenstermacher, City Attorney 11 of27 NBS GOVERNMENT FINANCE GROUP By:------------Michael Rentner, President and CEO Date: ___________ _
November 7, 2023, Item #2A. "SPECIAL PROVISIONS" EXHIBIT "A" Scope of Services. Consultant agrees to perform consulting services as required by City, which shall consist of, but is not limited to, conducting a re-engineering study and analysis for Landscape Maintenance Districts (LMDs) 83-1 and 86-1 to establish new assessments based on general and special benefit costs associated with the maintenance and operation of proposed improvements and to analyze parcels that receive special benefit proportionally assessed for those benefits. Services further described in the Scope of Services submitted with the proposals dated September 28, 2023, which is included in this document as Attachment 1, and incorporated by reference, as if its contents were fully set forth herein. Consultant shall provide the necessary qualified personnel to perform the services. B. Compensation and Reimbursement. City shall pay Consultant a fee in accordance with the Fee Proposals submitted with the proposals dated September 28, 2023, which are included in this document as Attachment 2. Total fee is not to exceed one hundred twenty-one thousand fifty dollars ($121,050). Consultant's fee shall include and Consultant shall be responsible for the payment of all federal, state, and local taxes of any kind which are attributable to the compensation received. In addition to said consulting fee, Consultant shall be reimbursed for all reasonable expenses, including lodging, telephone, and travel (air, auto, rail) necessarily incurred in performance of the services. Consultant shall bill City for such expenses as incurred, referencing this Agreement. All expenses shall be itemized and supported by receipts for amounts in excess of Twenty-Five Dollars ($25.00). Statements for reimbursement of expenses shall be paid within ten (10) days of approval by City. All air travel shall be billed at coach or special fare rates. Reimbursement for lodging is limited to travel from outside of San Diego County. Consultant shall receive prior authorization for air travel and lodging expenses. All other expenses shall be reimbursed in accordance with City's cash disbursement policies in effect at the time incurred. C. Term of Agreement. This Agreement shall commence and be effective as of November 8, 2023, and terminate November 7, 2024. This Agreement may be extended for up to one (1) additional one-year periods upon approval in writing of the City Manager and Consultant, unless sooner terminated by City as provided in the section of this Agreement entitled "Termination." Upon the termination of this Agreement, Consultant shall return to City any and all equipment, documents or materials and all copies made thereof which Consultant received from City or produced for City for the purposes of this Agreement. 12 of 27
November 7, 2023, Item #2D. Consultant's Insurance. 1. Coverages: Consultant shall obtain and maintain during the life of this Agreement all of the following insurance coverages: (a) Comprehensive General Liability, including premises-operations, products/completed, broad form property damage, and blanket contractual liability with the following coverages: General Liability $1,000,000 Bodily Injury and Property Damage combined each occurrence and $2,000,000 aggregate. (b) Automobile Liability, including owned, hired, and non-owned vehicles: $1,000,000 combined single limit. (c) Consultant shall obtain and maintain, during the life of the Agreement, a policy of Professional Errors and Omissions Liability Insurance with policy limits of not less than $1,000,000 combined single limits, per claim and annual aggregate. (d) Workers' Compensation insurance in statutory amount. All of the endorsements which are required above shall be obtained for the policy of Workers' Compensation insurance. 2. Endorsements: Endorsements shall be obtained so that each policy contains the following three provisions: (a) Additional Insured. (Not required for Professional Errors and Omissions Liability Insurance or Workers' Compensation.) "City of Poway and its elected and appointed boards, officers, agents, and employees are additional insureds with respect to this subject project and contract with City." (b) Notice. "Said policy shall not terminate, nor shall it be canceled, until thirty (30) days after written notice is given to City." (c) Primary Coverage. "The policy provides primary coverage to City and its elected and appointed boards, officers, agents, and employees. It is not secondary or in any way subordinate to any other insurance or coverage maintained by City." 3. Insurance Certificates: Consultant shall provide City certificates of insurance showing the insurance coverages described in the paragraphs above, in a form and content approved by City, prior to beginning work under this Agreement. 13 of27
November 7, 2023, Item #2E. Notices. All notices, billings and payments hereunder shall be in writing and sent to the following addresses: 14 of 27 To City: To Consultant: City of Poway -Public Works Department P.O. Box 789 Poway, CA 9207 4 NBS Government Finance Group 32605 Temecula Parkway Temecula, CA 92592 (Remainder of page intentionally left blank)
November 7, 2023, Item #2ATTACHMENT 1 Scope of Services .CJ WORK PLAN To ensure full compliance with the City's requirements, we have provided the Scope of Services as noted within the RFP. We have annotated these Scopes below in italics for clarity in our response, as well as to add additional steps that NBS recommends as necessary for support of the Prop 218 process. TASK 1: REVIEW BENEFITS/SERVICES, COMPLETE BENEFIT ANALYSIS, VERIFY AND EXPLAIN/DOCUMENT ASSESSMENT METHODOLOGY 1. Review the existing and proposed services and improvements to be funded in part by assessments and the areas and properties served to determine special/general benefit. Consider the historical and current state of the districts, city and surrounding communities to determine general benefit and update method of special/general benefit apportionment in accordance with current condition and case law. a. City to provide budgets and estimated costs for capital improvements and service levels. b. Consultant to describe in detail special/general benefit approach and methodology. 2. Evaluate district boundaries and assessed properties based on proposed maintenance areas to be detached from the district(s). This may be an iterative evaluation. a. City to provide proposed maintenance areas to be detached. Deliverable: Recommendation of district boundaries based on the evaluation conclusions. Meetings: One (1) 1-hour kick-off meeting with City staff. One (1) 1-hour meeting with City staff and LMD Advisory Group. As-needed conference calls and e-mails with City staff to discuss and refine specific improvement information. NBS Annotation: With both subject Assessment Districts formed prior to the approval of Prop 218 by California voters, NBS would request the original formation documents, any documents that materially changed the list of improvements or services or the assessments, and any annexation or other change of boundary 15 of27
November 7, 2023, Item #2documentation. NBS will use the most recent secured roll data available from San Diego County. NBS will interview staff involved in the annual administration of the City's ADs as well as review available documentation to gain an understanding of the city's current policies and procedures. NBS will review the proposed improvements, maintenance, services, 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 districts. Provide staff with related support for the duration of the project. NBS will analyze improvements, maintenance, services, proposed boundaries, district characteristics, parcel characteristics, special and general benefits conferred, and assessment engineering industry standards and sources to separate and quantify special vs. general benefit in compliance with the special benefit requirements of Proposition 218 for review by all stakeholders. TASK 2: UPDATE DISTRICT DIAGRAMS AND POTENTIAL MODIFICATIONS 1. Update assessment diagrams to reflect changes to the district boundaries using updated parcel information from the current County Assessor's Office secured roll and available development information provided by the City. Meetings: One (1) with City staff to discuss and strategies for potential assessment modification options. This meeting shall be one (1) hour. NBS Annotation: NBS will prepare all require assessment diagrams in accordance with applicable laws and practices to ensure transparency and compliance with the assessment district formation process. TASK 3: PREPARE ENGINEER'S REPORTS 1. Prepare updated Engineer's Report(s) integrating proposed improvements and updated parcel information. The Engineer's Report will include the following items: a. Plans and specifications that describe the ongoing services and/or maintenance to be maintained and serviced. b. Method of apportionment that outlines the special benefit conferred on properties within the district and the calculations used to establish each parcel's proportional special benefit assessment. To include a description of the assessment range formula, if applicable, establishing the maximum assessment rate in subsequent fiscal years. 16 of27
November 7, 2023, Item #2c. The budget outlining the costs, expenses and Capital Improvement Projects to provide maintenance, including incidental expenses authorized by the 1972 Act. d. Assessment diagram(s) that identifies the boundaries of the district(s). e. The assessment roll which contains each Assessor Parcel Number and their proportional maximum assessments. f. An affidavit stating the report has been prepared by a professional engineer. Deliverable: One (1) electronic copy of the draft Engineer's Report(s) will be provided to the City for review and comment prior to submittal of the final Engineer's Report(s) for the City Council's consideration and approval at the Intent Meeting. When finalized with City staff, a final electronic version will be provided to the City that the City Clerk may incorporate into the Council agenda package. Meetings: One (1) virtual meeting with City staff to discuss and finalize the findings. This meeting shall be one hours. One (1) virtual meeting with City staff and the LMD Advisory Group to discuss findings. This meeting shall be no more than two (2) hours. NBS Annotation: NBS will prepare Engineer's Reports that meet all current legal requirements and anticipates the potential initiative measure that has qualified for the November 2024 ballot which may be impactful in this arena. The Reports will contain a robust and detailed analysis which fully supports the separation of general and special benefits and the proportional allocation of special benefits. TASK 4: PREPARE RESOLUTIONS 1. Prepare drafts of the resolutions for the Intent Meeting and Public Hearing for the City's review and finalization. The following resolutions will be necessary: a. Resolution Initiating Proceeding, which calls for the Engineer's Report to be prepared; b. Resolution of Intention, confirms the proposed assessments outlined in the Engineer's Report on file, declares the Council's intent to levy and collect such assessments, and sets the Public Hearing date; and c. Resolution approving the Engineer's Report and Assessment Diagram confirms the proposed district assessments and orders the levy and collection of those assessments for the Fiscal Year 2023-24. 17 of 27
November 7, 2023, Item #2Deliverable: A total of three (3) resolutions. NBS Annotation: NBS will prepare draft resolutions which contain all required information, along with draft staff reports, for review by City staff. TASK 5: PREPARE NOTICES AND BALLOTS 1. Prepare the required notices for the Public Hearing and the assessment ballots to be mailed to each affected property owner, in accordance with the California Constitution and California Government Code Sections 53750-53758 (Proposition 218 Omnibus Implementation Act). Draft copies will be sent to City staff for review and comment prior to finalization of the documents. Deliverables: Draft notices and ballots will be delivered to City staff for review and comment prior to final versions being printed, processed, and mailed. To ensure adequate time to print and process these documents, after the Intent Meeting, drafts will be prepared and finalized prior to the Intent Meeting. NBS Annotation: NBS will prepare the required notices and ballots in compliance with Prop 218 and the Prop 218 Implementation Act for the City's review. NBS typically uses a barcoded ballot for ease of tabulation. At the City's request, CivicMic can also prepare an informational insert for the City's ballot package mailing. TASK 6: PUBLIC HEARING AND BALLOT TABULATION 1. Attend the Public Hearing to answer questions and assist in the tabulation of the returned ballots on behalf of the City Clerk. Meetings: One (1) City Council Public Hearing to be available to answer questions and tabulate the ballots at City Hall. Deliverables: Ballot tabulation results. NBS Annotation: NBS will attend the public hearing to answer questions. At the City's request, NBS can provide a presentation as well. Following the close of the public hearing, NBS will assist in the tabulation of the returned assessment ballots using a barcode scanner method. Our team uses both an electronic tabulation spreadsheet as well as a detailed checklist with redundancies to ensure that all returned ballots are accounted for to ensure integrity of the ballot process. 18 of27
November 7, 2023, Item #2TASK 7: ADDITIVE AL TERNA TE The following alternate item may be awarded as part of the agreement if the proposals come within the project's budget. 1. Public Outreach Activities -Attend two (2) public workshop meetings (one for each district) to present a summary of the Technical Memorandum and answer questions. Workshops may include Consultant providing the following: a. Informing residents of respective district's fiscal condition. b. Facilitating communication and feedback from community members. c. Educating residents as to what various paths may entail for each district. NBS Annotation: Community Workshops -Provide the following Meeting Services: • Design, print and mail one postcard workshop notification per district. • Host one in-person meeting per district to allow the community to discuss items of importance and build a sense of community • Creation and posting of community meeting notices on various outlets • Leading of meetings with objectives created with the City before the meeting • Development of action items based on feedback received at Community Meetings or from surveys and other ongoing communication efforts OPTIONAL OUTREACH SERVICES Development of an Internal Communication Action Plan: • Create a comprehensive communication action plan to ensure consistent and accurate information sharing. • Develop messaging guidelines and identify appropriate communication channels. • Identify key milestones and deadlines for each task, along with the responsible parties. • Establish a schedule for regular updates and progress reports. Creation of a Communication Toolkit: Develop a comprehensive toolkit including website content, talking points, multilingual FAQs, postcards, content releases, timelines, checklists, and guidelines for various communication activities. Ballot and Proposition 218 Informational Insert: At the City's request, CivicMic can also prepare an informational insert for the City's ballot package mailing. 19 of27
November 7, 2023, Item #2Ongoing Webpage Updates -Develop and Deploy Content to a Dedicated District Webpage and Social Media: This task includes but is not limited to the following items. Each of these posts to the webpage is emailed directly to the District Listserv members. A link will be provided for the City website to send property owners directly to CivicMic.com. • Ongoing updates on maintenance • Legislative updates • Meeting announcements and minutes • Recordings of community meetings • Content development and updates for website and social media •••• -., • Calendar of anticipated events (such as community meetings and service schedules.) .. , ........ • .. ·• ....... :--· ' Specialized mapping and graphics on CivicMic.com Email Campaign -Establishment of a Stakeholder Email List: Using the CivicMic platform, we will establish an email contact list for most participants in this engagement. In addition, multiple postcards will be mailed out announcing the survey and community meetings and explaining how to sign up at CivicMic.com to receive updates. Surveys -Develop up to Two Online/Mailed Surveys to Gather Information from Communities: Surveys and utilize online feedback platforms to gather community input on the project and related issues, allowing the County to gauge public opinion and identify areas of concern, while sharing results with the community to demonstrate that their voices are being heard and considered in decision-making processes. (Remainder of page intentionally left blank) 20 of 27
D l PROJECT SCHEDULE
The following is an overview of our proposed project schedule. We will discuss a detailed schedule at the kick-off meeting, along
with the expected timing for individual tasks. Note: This page is intentionally formatted differently to improve legibility of the table
contents.
PROJECT SCHEDULE FOR THE CITY OF POWAY
Task 1. B -Evaluate Boundaries
Task 2 -District Diagrams
Task 3 -Engineer's Report
Task 4-Resolutions
Task 5 -Notices and Ballots
Optional Outreach Services
1.Meetings and presentations are estimated in this timeline and will be scheduled as needed throughout the study.
2.The timing of the Proposition 218 process shown in the schedule above is an estimate of when the process can take place.
The actual schedule will be discussed at the kick-off meeting and a more defined plan will be developed at that time.
�Active task work
In person meeting with City Staff (estimated, to be scheduled as needed)
Virtual meeting with City Staff (estimated, to be scheduled as needed) November 7, 2023, Item #221 of 27..
H / PROPOSAL -BEST AND FINALJ>_RICING
Tasks
Task 1.A-Improvement Matrix
Task 1.B -Evaluate Boundaries
Task 2 -District Diagrams
Task 3 -Engineer's Report
Task 4 -Resolutions
Task 5 -Notices and Ballots
Task 6 -Public Hearing and Ballot Tabulation
Total Fee:
ADDITIONAL AL TERNA TE: Task 7 -Public Outreach Workshops
Other: Notice & Ballot Estimated Mailing
Expenses1
Other: Customary Out of Pocket Expenses2
ATTACHMENT 2
Fee Schedule
FEE PROPOSAL
LMDs: ASSESSMENT AND REENGINEERING SERVICES
LMD 83-1
$8,500
7,800
4,050
18,950
3,200
5,150
4,800
$52,450
4,400
3,700
3,000
LMD Total 86-1 Cost
$7,800 $16,300
7,150 14,950
3,650 7,700
16,450 35,400
3,200 6,400
4,450 9,600
4,800 9,600
$47,500 $99,950
4,400 8,800
2,600 6,300
3,000 6,000 November 7, 2023, Item #222 of 27I I
[ Optional Outreach Services: TBD I Tsoj TBD l
1. Printing and mailing expenses are passed through as direct costs with no markup. Cost will depend on final design andlength of ballot package and collateral material. NBS will work with the City to mail material as inserts to current mailings when possible. 2. Includes travel costs for in-person meetings, including public hearing and ballot tabulation.
(Remainder of page intentionally left blank) November 7, 2023, Item #223 of 27
November 7, 2023, Item #2EXPENSES Customary out-of-pocket expenses are billed at the actual cost incurred. These expenses may include mailing fulfillment, postage, reproduction, telephone, travel, meals and various third-party charges for data, maps, and recording fees. ADDITIONAL SERVICES The following table shows our current hourly rates. Additional services authorized but not included in the scope of services will be billed at this rate or the then applicable hourly rate. Title Hourly Rate Director/ Senior Review $250 Associate Director/ Engineer $225 Senior Consultant $200 Consultant $175 Project Analyst $150 Project Resource Analyst $130 ' Clerical/ Support $110 TERMS Services will be invoiced monthly. Fees for all other services will be invoiced monthly for work completed. Expenses will be itemized and included in the next regular invoice. If the project is prematurely terminated by either party, NBS shall receive payment for work completed. Payment shall be made within 30 days of submittal of an invoice. If payment is not received within 90 days, simple interest will begin to accrue at the rate of 1.5% per month. Either party can cancel consulting contract with 30 days' written notice. (Remainder of page intentionally left blank) 24 of27
November 7, 2023, Item #2EXHIBIT "8" Cal Gov Code§ 7522.56 Deering's California Codes are current through all 1016 chapters of the 2018 Regular Session and the November 6, 2018 Ballot Measures. Deering's California Codes Annotated> GOVERNMENT CODE> Title 1 General> Division 7 Miscellaneous > Chapter 21 Public Pension and Retirement Plans > Article 4 California Public Employees' Pension Reform Act of 2013 § 7522.56. Provisions applicable to person receiving pension benefit from public retirement system; Section supersedes conflicting provisions (a)This section shall apply to any person who is receiving a pension benefit from a public retirement system and shall supersede any other provision in conflict with this section. (b) A retired person shall not serve, be employed by, or be employed through a contract directly by, a public employer in the same public retirement system from which the retiree receives the benefit without reinstatement from retirement, except as permitted by this section. (c) A person who retires from a public employer may serve without reinstatement from retirement or loss or interruption of benefits provided by the retirement system upon appointment by the appointing power of a public employer either during an emergency to prevent stoppage of public business or because the retired person has skills needed to perform work of limited duration. ( d)Appointments of the person authorized under this section shall not e'xceed a total for all employers in that public retirement system of 960 hours or other equivalent limit, in a calendar or fiscal year, depending on the administrator of the system. The rate of pay for the employment shall not be less than the minimum, nor exceed the maximum, paid by the employer to other employees performing comparable duties, divided by 173.333 to equal an hourly rate. A retired person whose employment without reinstatement is authorized by this section shall acquire no service credit or retirement rights under this section with respect to the employment unless he or she reinstates from retirement. (e) 25 of27 (l)Notwithstanding subdivision (c), any retired person shall not be eligible to serve or be employed by a public employer if, during the 12-month period prior to an appointment described in this section, the retired person received any unemployment insurance compensation arising out of prior employment subject to this section with
November 7, 2023, Item #2a public employer. A retiree shall certify in writing to the employer upon accepting an offer of employment that he or she is in compliance with this requirement. (2)A retired person who accepts an appointment after receiving unemployment insurance compensation as described in this subdivision shall terminate that employment on the last day of the current pay period and shall not be eligible for reappointment subject to this section for a period of 12 months following the last day of employment. (f)A retired person shall not be eligible to be employed pursuant to this section for a period of 180 days following the date of retirement unless he or she meets one of the following conditions: 26 of 27 (l)The employer certifies the nature of the employment and that the appointment is necessary to fill a critically needed position before 180 days have passed and the appointment has been approved by the governing body of the employer in a public meeting. The appointment may not be placed on a consent calendar. (2) (A)Except as otherwise provided in this paragraph, for state employees, the state employer certifies the nature of the employment and that the appointment is necessary to fill a critically needed state employment position before 180 days have passed and the appointment has been approved by the Department of Human Resources. The department may establish a process to delegate appointing authority to individual state agencies, but shall audit the process to determine if abuses of the system occur. If necessary, the department may assume an agency's appointing authority for retired workers and may charge the department an appropriate amount for administering that authority. (B)For legislative employees, the Senate Committee on Rules or the Assembly Rules Committee certifies the nature of the employment and that the appointment is necessary to fill a critically needed position before 180 days have passed and approves the appointment in a public meeting. The appointment may not be placed on a consent calendar. (C)For employees of the California State University, the Trustees of the California State University certifies the nature of the employment and that the appointment is necessary to fill a critically needed position before 180 days have passed and approves the appointment in a public meeting. The appointment may not be placed on a consent calendar. (3)The retiree is eligible to participate in the Faculty Early Retirement Program pursuant to a collective bargaining agreement with the California State University that existed prior to January 1, 2013, or has been included in subsequent agreements. (4)The retiree is a public safety officer or firefighter hired to perform a function or functions regularly performed by a public safety officer or firefighter.
November 7, 2023, Item #2(g)A retired person who accepted a retirement incentive upon retirement shall not be eligible to be employed pursuant to this section for a period of 180 days following the date of retirement and subdivision (f) shall not apply. (h)This section shall not apply to a person who is retired from the State Teachers' Retirement System, and who is subject to Section 24214, 24214.5 or 26812 ofthe Education Code. (i)This section shall not apply to (1) a subordinate judicial officer whose position, upon retirement, is converted to a judgeship pursuant to Section 69615, and he or she returns to work in the converted position, and the employer is a trial court, or (2) a retiree of the Judges' Retirement System or the Judges' Retirement System II who is assigned to .serve in a court pursuant to Section 68543.5. History Added Stats 2012 ch 296 § 15 (AB 340), effective January 1, 2013. Amended Stats 2013 ch 528 § 11 (SB 13), effective October 4, 2013 (ch 528 prevails); ch 76 § 75 (AB 383), effective January 1, 2013; Stats 2014 ch 238 § 1 (AB 2476), effective January 1, 2015. Annotations Notes Amendments: Note-Amendments: 2013 Amendment: Substituted (1) "have passed" for "has passed" in the first sentence of subds (f)(l) and (f)(2); (2) "or firefighter hired to perform a function or functions regularly performed by a public safety officer or firefighter" for "of firefighter" in subd (f)( 4); and (3) "Judges' Retirement System" for "Judges' Retirement System I" in subd (i). 27 of27