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HomeMy WebLinkAbout2.C. WSB Contract ROSEEvIOUI\JT EXECUTIVE SUMMARY CITY COUNCIL City Council Work Session: October 10, 2012 AGENDA ITEM: WSB Contract AGNDA SECTION: PREPARED BY: Dwight Johnson, City Administrator AGENDA NO. 2 .C. ATTACHMENTS: Memo from Bret Weiss, President of WSB; Current WSB Contract; APPROVED BY Spreadsheet Comparison of Indirect Costs in several area communities ooJ RECOMMENDED ACTION: Discussion and direction to staff BACKGROUND The current three year WSB Engineering contract with the City is due to expire at the end of 2012. Early in 2012, during the Council goals session, Council members indicated that there should be a discussion of the WSB Contract and any options or alternatives to the current contract arrangement. Total WSB Billings to the City were $1,204,911 in 2011, and have ranged as high as $2,402,834 (2006) in the past eight years. In the current contract year,we pay a $40,000 retainer fee for Andy Brotzler to serve as both City Engineer and Director of Public Works. Bret Weiss, President of WSB will be present to discuss his memorandum with the Council. DISCUSSION Staff is not aware of any significant complaints about the quality of work done by WSB. Regarding engineering costs, the attached information from Bret Weiss and Kim Lindquist shows engineering costs as a percentage of total project costs compared with other area communities. This exercise is essentially a form of look-back bidding by seeing if WSB's costs over the last couple of years have been more or less than the costs paid by other cities for the same types of projects. Rosemount's engineering costs appear to be in line based on the information provided by WSB and also our own staff survey. There has been some discussion about whether or not Rosemount would benefit from bringing the position of City Engineer/Public Works Director in-house as a City staff position. Andy currently bills about 1200 hours per year to his retainer duties as a Department Head. The actual number of hours provided to the City is probably somewhat higher, since the WSB billing system only allows 8 hours per day to be billed and does not allow for additional time such as for evening meetings. Our current charge for this retainer is $40,000. By hiring our own staff member,we would need to hire a full-time person with benefits for a total out-of-pocket cost of perhaps $140,000 per year including out of pocket benefit costs. Sixty percent of the cost is paid from our various utility funds and forty percent from property taxes. This means that unless other overall savings could be realized, there would be a net increase in City costs of about$100,000 per year,with $40,000 of that coming as an increase in property taxes. One theoretical concern about the current situation is that Andy, as both a City Department Head and as a principal in WSB,is sometimes in a position of recommending discretionary engineering studies that presumably benefit the City but also benefit WSB. On a major engineering study, one way to address any concern could be to get a second opinion. The last major portion of the memorandum from Bret Weiss reviews a number of hypothetical alternatives to the current contract that staff developed earlier this summer. Mr.Weiss lists each of them and provides his comments, so there is no need to repeat them in this cover memo. STAFF COMMENTS It is a good exercise to check the data to see if our costs for professional engineering services are reasonable and to review any potential alternatives. We appreciate the information provided by Mr. Weiss in this effort. As noted before,it appears that our overall costs for engineering are in line with other communities. We should make sure that we have good public disclosure and transparency on our engineering studies and costs and we have already taken additional steps in that direction. Overall,we have not seen any convincing information so far that indicates the City or its taxpayers would benefit from a significant change in engineering services or additional in-house staff. 2 A WSB engineering•planning•environmental-construction 701 Xenia Avenue South Suite 300 Minneapolis,MN 55416 Tel: 763-541-4800 Fax: 763-541-1700 Memorandum To: Honorable Mayor and City Council, City of Rosemount Mr. Dwight Johnson, City Administrator, City of Rosemount From: Bret A. Weiss,PE, President Date: October 4, 2012 Re: Supplemental Information Related to WSB's Engineering Services Renewal INTRODUCTION WSB is proud to have worked for the City of Rosemount for all 17 years that we have been in business. The City of Rosemount and WSB &Associates, Inc. entered into a partnership to provide in-house City engineering services in January, 2002. The City initially pursued this option due to a lack of candidates for the open Director of Public Works/City Engineer position. While the initial contract was a two-year contract, since 2004 the contract extensions have been for three-year terms. The annual cost has not changed much since the original contract, though WSB and Andy Brotzler have taken on more responsibilities including the Director of Public Works position in 2009. Over the past ten years,the City of Rosemount model for providing engineering services has served as an innovative example for other communities. Other cities have chosen a similar model for various reasons that include talented, well trained staff, access to specialty service experts quickly when needed, a network of in-house WSB City Engineers with whom to collaborate and a company committed to creativity, innovation and a commitment to finding funding and solutions to City projects. A few recent examples include the cities of Champlin, Lino Lakes, and Minnetrista for City Engineering/Public Works; and Lakeville and Bloomington where WSB provides specialty staff in-house to address specific needs. We are not advocating that this is the solution for all communities, but we believe that our partnership has been a success for the City of Rosemount. This success is directly related to how we have been accepted by staff, council and the public. We are very proud and protective of our reputation in the City of Rosemount and make it a point to ensure that we provide the highest quality services and most cost effective life cycle costs for the city and residents. We have improved personally and as a firm and have become recognized as a premier City engineering firm. This is evidenced by our more than 31 City engineering clients, including more than 10 new relationships in the past 3 years. This is directly related to the quality of our staff, the training and consistent method with which we provide services, our commitment to creativity, innovation and funding and our relentless passion for our clients and finding solutions to their problems. St.Cloud• Minneapolis•St.Paul Equal Opportunity Employer wsbeng.com C:\Users\ajb\Documents\Rosemount Contract\MEMO Rsm[.Council 100412.docx Honorable Mayor and City Council October 4, 2012 Page 2 We have met with the mayor and administrator regarding any questions or concerns that may exist regarding our contract. The information in this memo will address those recent discussions and provide some information regarding the success of this arrangement. Our goal is to quantify the value received by the City of Rosemount for the fees paid, and to show that WSB is delivering engineering and public works services to the City of Rosemount in a responsive and cost-effective manner. We hope that you will recognize that WSB has provided value to the City of Rosemount over these past 10 years and that we have continually improved our service, responsibilities and quality of the products we provide. ROSEMOUNT ENGINEERING HISTORY The following summary addresses changes to staffing levels and associated costs over the past 20 years. We do not have the information on general consultant engineering services prior to 2002, but know that the City did contract with a pool of consultant engineers for various engineering needs including WSB. 1990's Staff Levels and Costs Director of Public Works/City Engineer $117,000 Project Engineer $78,000 Water Resource Engineer $65,000 Senior Engineer Technician(2) $156,000 Total $455,000 2002 Staff Levels and Costs WSB Retainer for City Engineer $35,000 Water Resource Engineer $65,000 Senior Engineer Technician(2) $156,000 Total $256,000 2004 Staff Levels and Costs WSB Retainer for City Engineer $30,000 Senior Engineer Technician(2) $156,000 Total $186,000 C.\Users\a jMocuments\Rosemount Contract\1EMO Rsmt.Council 100412.docx Honorable Mayor and City Council October 4, 2012 Page 3 2005 Staff Levels and Costs WSB Retainer for City Engineer $30,000 Senior Engineer Technician $78,000 GIS Coordinator $84,500 Management Analyst(Including 50%PW's) $78.000 Total $270,500 2011 and 2012 Staff Levels and Costs WSB Retainer for Director of Public Works/City Eng. $30,000 Senior Engineer Technician $91,000 '/2 GIS Analyst $45,500 Public Works Coordinator(Includes 75% PW's) $91,000 Total $257,500 2013—Projected Additional Cost Savings with Public Works Department Reorganization Operations Superintendent Position Eliminated ($117,000) Existing City Positions Were Expanded $45,000 Net additional Annual Savings ($72,000) With the recent changes to the Public Works Department, the current service model provides an annual savings of approximately $270,000 from city staffing levels and costs in the 1990's. COMPARISON OF FEES PRIOR TO WSB SERVING AS CITY ENGINEER It is worthwhile to measure how WSB performed on project related work in comparison to other consulting firms; however this is not easy to do. It is difficult to compare projects since each is somewhat unique, but prior to WSB becoming the City Engineer there were projects completed by WSB and SEH which provides some comparison. The analysis noted below is not intended to say that WSB is less expensive than other consultants, but rather to say that we are not more expensive either. WSB averaged 17.2% on the two projects noted and SEH averaged 20.6% on the two projects noted. The data also includes information related to the City cost included with projects at that time, with an average of 6.6% and 7.9% for WSB and SEH projects, respectively. The average for all four projects is 7.25% of City overhead. #290 Chippendale Avenue WSB 16.2%Engineering 22% Total OH #291 145th Street West SEH 19.9%Engineering 27.8% Total OH #282 McNamara Addition WSB 18.2% Engineering 25.6% Total OH #275 Hawkins Pond SEH 21.3% Engineering 29.2% Total OH C:\Users\ajb\Documents\Rosemount Contmct\MEMO Rsmt.Council 100412.docx Honorable Mayor and City Council October 4, 2012 Page 4 We reviewed City street reconstruction projects since 2006 and arrived at an average WSB indirect cost of 20.95% and City indirect cost of 2.17% for a total of 23.12%. The most recent reconstruction projects in 2010 and 2011 had total indirect costs of 21.51% and 19.68%, respectively, which are all below the indirect costs noted prior to WSB being hired as City Engineer. We have also reviewed development projects in Rosemount and noted an average WSB indirect cost of 18.97% over the past nine years with a fixed City indirect charge of 5% for other City departments for a total of 23.97% indirect charges. It should be noted that with very few exceptions, the developers have been very pleased with WSB's schedule, fee, and overall delivery of their projects. ANDY BROTZLER POSITION CHANGES & RECENT ROLE In analyzing the Rosemount retainer history, we have noted that the hours per year that Andy charged to the retainer have increased as much as 90% from the 2002 retainer hours. A 10-year average of hours charged to the retainer reflects an increase of 50% from the initial model when our retainer was reduced from $65,000 to $35,000 based on the volume of project work, particularly development projects. This also reflects the growth in Andy's participation in public works and other city administrative items. This has reduced WSB fees by more than$50,000 since 2003. Since that time, Andy's role has expanded significantly as noted below. • Role as Director of Public Works o Recruitment of GIS Coordinator and development of city GIS system o Recruitment of Management Analyst and development of Cartegraph system for asset management, call tracking, work director, time and cost tracking o Participation and leadership in various Dakota County committees • HiPP Sub-committee for"Shared Technical Expertise"—leader in this group to work towards development of shared volunteer coordinator o Development of Public Works Quality Standards—basis for operations, standard service levels, move towards performance based budgeting—this is continuously geared towards the vision to move the budgeting process towards a performance based budget and away from strictly a cost based budget. o Participation and Leadership with Department Director Group o Reorganization of Public Works Department o Evaluation and implementation of contracted services for Public Works RECENT SUCCESSES Andy received a note from FEMA representatives regarding a recent submittal the city provided to FEMA for a storm damage claim. FEMA staff noted that the city's documentation and submittal utilizing Cartegraph is the best that they've seen. They noted that other local communities' documentation was good, but Rosemount's was better. Over the past three years as Director of Public Works, Andy has actively worked to align the operations of the department with the Council's goals. This includes carrying forward a"can- C:\Userstajb\Documents\Rosemount Contract\MEMO Rsmt.Council 100412.docc Honorable Mayor and City Council October 4, 2012 Page 5 do"attitude and continuously striving to provide clear information for the Council to base operation and budgetary decisions on. Some highlights include: • contracting of services when appropriate (contracted mowing of non-park facilities for increased efficiency and cost savings); • initiating the development of a joint purchasing agreement with other Dakota County cities for utility system items (chemical purchase, hydrant painting, manhole repairs); • identifying and developing a funding option and solution to complete the construction of Connemara Trail with the Prestwick development(this included a lot of vision and planning to develop and implement multiple agreements and funding tracking systems for future charges to developers which included four parties plus the city); • marketing of the public works department—recent examples include two water education days for local girl scouts and participating in"Night to Unite"with a new plow truck; • development and implementation of the Public Works Department reorganization saving the City$72,000 and offering new opportunities for existing public works staff • managing improvement projects, hosting public informational meetings, communicating with residents and achieving minimal to no objection to assessments along with minimizing calls to city hall on projects we managed which is a value that is difficult to quantify but valuable nonetheless WSB IS ACCOUNTABLE WSB takes our role as City Engineer very seriously and as such we understand that when we make mistakes,we must be accountable. While we don't like to focus on mistakes, it is important for the City to understand that we have resolved these issues at no cost to the City. Some recent examples are as follows: • Akron Avenue Trunk Utility Project. There was a staking error in the field during reconstruction of the gravel road and it was partially installed on the wrong alignment, requiring extra work for the contractor to excavate and replace it on the correct alignment. WSB made a negative adjustment to project billings to account for the additional costs to the project resulting from the error. • Glendalough sewer service repair. WSB funded a$17,000 repair. We also spent $3,956.00 g p p p worth of WSB time on the project, none of which was charged to the City. • Sewer service record drawings in Prestwick Place 2nd Addition. WSB paid $4,946.09 to Douglas-Kerr to verify three sewer service elevations where there was some discrepancy in the record drawings. We did this proactively to avoid future issues once homes were built. C:1 Users lajb\Documents\Rosemount Contmcj\MEMO Rsmt.Council 100412.docx Honorable Mayor and City Council October 4, 2012 Page 6 WSB OVERHEAD COMPARISON TO OTHER FIRMS (2008 DATA) WSB has consistently been on the lower side of overhead in comparison to other firms in our industry. While overhead is only one measurement, it does demonstrate how we manage our firm and in turn operate in the City of Rosemount. MnDOT has not provided current information recently, but information from 2008 shows WSB at an overhead of 117.15 in comparison to an average overhead rate of 162.65 for all firms that are audited. The lower overhead is how we can keep our fees most competitive. The overhead denotes that for every $1 in salary, WSB has $1.17 in overhead which is almost $0.50 per $1 of salary lower than the average of our competitors. Due to the recent economic downturn and WSB's goal to keep our staff employed, our overhead has risen, which is likely the case for our competitors as well. We have a very competitive fee schedule as is shown by the comparison completed by other communities that utilize a pool for their consulting engineering. HOW CAN THE CITY BE SURE IT IS GETTING THE BEST COST/VALUE ENGINEERING SERVICES? As you consider whether or not the City is satisfied with our work and values the service we provide, we offer a few examples from recent projects: • 2009 Street Project—assessed 84 properties $5,600 for street reconstruction, replaced sewer, water, storm sewer and removed over 100 trees. Developed options and processes for the Council to provide to residents for tree protection/removal. Zero objections to assessments, zero calls to city hall during construction. • 2010 Street Project—assessed 575 properties. 5 objections to assessments, no appeals. • 2011 Street Project—assessed 97 properties, zero objections to assessments. • 2012 Street Project—assessed 137 properties, zero objections to assessments, only 2 property owners testified at assessment hearing. • City project fee comparisons: Reviewing WSB fees for city projects the past 6 years,the average WSB fee as a percentage of the construction contract is 20.95%. Additional project indirect costs for testing, geotechnical and legal average 2.17% for a total average indirect percentage of 23.13%. By comparison, another Dakota County city has average indirect percentage charged to projects of 27.35%. This includes 15.5% for design and construction engineering and 11.85% for city overhead to account for city staff time and involvement on the project. Another rapidly growing City nearby has used an indirect rate as high as 32% and is currently using 27%. Included in the WSB rate of 20.95% is the full administration of the project from start to finish. The city does not add a charge on top of the actual costs for WSB, testing, Y g p g geotechnical services and legal so when looking at the total project cost and a total average C:\Users\ajb\Documents\Rosemount Contract\MEMO Rsmt.Council 100412.docx Honorable Mayor and City Council October 4, 2012 Page 7 indirect percentage of 23.13%,this is significantly lower than the two comparisons listed above. • Development project fee comparison: For development projects,the average WSB fee as a percentage of the construction contract amount is 18.97% over the past 9 years. There is a city administrative charge of 5%added to all development projects for a total average indirect percentage of 23.97%. For these projects,the 5% city administrative charge is a recovery charge for city staff time for the preparation of development agreements, administration of fees and Letters of Credit, and building site erosion control inspections that is supported by an annual fee study completed by the city. The WSB engineering fee includes preliminary plat and grading plan review, feasibility report, design, construction administration, staking and observation along with coordination of the private utility installations. For most Cities, the preliminary plat, grading plan and private utility coordination costs are not included in the percentage calculation. • Response time: Added value that is provided is the ability to respond immediately to project requests and work direction. Recent examples include the review and evaluation of options to improve Brazil Avenue. Based on our history and full-time status in Rosemount, we were able to work quickly and effectively to develop preliminary information and costs for the city to determine a project course of action. Once the decision was made to proceed with a project, we were able to immediately move into design to meet a schedule to complete construction this year. This would have been difficult to complete if the City had a different arrangement with a consultant. ENGINEERING OPTIONS City Administrator Dwight Johnson identified options for consideration related to our contract renewal. Below is a summary of the suggested options, including and overview and comments: 1. Maintain current model/renew contract We believe that this is the best option for the City of Rosemount and obviously WSB. The changes in the engineering and PW operations have been significant during our relationship with the City. Our fees are among the lowest in the industry and our reputation for City and overall consulting engineering is excellent. We now serve as City or Township Engineer for more than 31 communities in the metro area and St. Cloud area. Our firm has doubled in staff size since 2002 and has added seven new service areas. We have invested and improved during the recession, which is significant and unusual in our industry. Considering the changes to our contract regarding Andy's increased billings to the retainer and the additional duties, we believe that we should be discussing an increase in our retainer cost. We would be willing to discuss a cost arrangement that has ranges based on actual billings in recognition of efficiencies and value in comparison to workload. 2. Maintain current model with fixed fees (e.g. % cost for various types of projects) This is a variation of our current contractual arrangement. The idea would be to provide a fixed fee % for many typical projects based on a construction cost scale. This would be Ct\Userstajb\Documents\Rosemount COatmct\MEMO Rsmt.Council 100412.docx Honorable Mayor and City Council October 4, 2012 Page 8 feasible, although it would be important to clearly define the scope of work to be completed in this scenario as we routinely conduct numerous public meetings in our process at the direction of the Council. In our budget tracking the past several years, we have separated out these types of tasks from the base feasibility, design and construction administration. 3. Award a contract every three years to one company via bidding This option may allow the city to communicate that they've received bids every three years to address a perception about cost. There are also a few questions and concerns related to this option, including: What is the cost in potential lack of continuity? If the city is satisfied with our work to date, a change may (will)result in a decrease in service and the loss of value won't be able to be addressed until the next time the contract is considered. This option will require more city administrative time to prepare RFP's, review proposals and conduct interviews along with city staff time to ramp up with a different consultant. 4. Create matrix of approved engineering firms This could be accomplished with WSB as the City Engineer, or with the City hiring its own staff. If WSB is the City Engineer, our contract would need to be increased substantially depending on how much work WSB actually performs. The $30,000 retainer was viable between 2003-2008 when the volume of work was greater, and is more difficult at the current levels. We noted that some of the challenges related to the retainer are related to Andy's changing role, which has led to increased public works and City related duties. If the City hires their own staff and then seeks proposals for projects, the City would need to receive more than a 17.5% savings on WSB's fees to break even on the current retainer assuming a PW/City engineer and assistant cost of$250,000. In addition, the City would lose continuity on historical items and would likely receive less value due to the low bid philosophy. 5. Maintain current model for City Engineer but allow private design and construction of development projects With this option,the City Engineering firm would review development proposals and construction plans, with the developer hiring their own engineer and contractor privately. This has been discussed recently with a proposed development project. To this point, the following should be noted: • The City Council policy for all development work to be completed as public improvements pre-dates WSB's contract with the city. C:\Users\mb\Documents\Rosemount Contract\ EMO Rsmt Council 100412.docs Honorable Mayor and City Council October 4, 2012 Page 9 • There will likely be the same or more cost to developers associated with the added reviews of developer engineer plans. • With this option, the City would not finance the project, and the developer would be responsible for securing their own financing. • The City of Woodbury recently brought development projects back in to the City for public design/construction due to issues associated with private designs not addressing city requests/requirements to maintain city standards. • Our average fee of 23.97% (including 5% city admin charge) is competitive with typical project costs especially considering that it includes review time for the plat and coordination with private utilities. In the 10 years that Andy has been with the City,he has not yet heard a developer show concern about the fees and in fact has had several developers note their satisfaction with our delivery of projects . A variation of this option would be for the City to provide construction documents to the developer for private construction,with City construction observation. The City would not be in a position to finance the project via Statute Chapter 429 with this option. 6. Hire an in-house Public Works Director(probably required with option 4 and possibly 3) The cost to add an in-house PWD/City engineer and assistant would be in the area of $250,000. These costs are based on current data for positions in similar sized communities. The reason WSB can provide these services for substantially less is our ability to consider the entire amount of our contract to offset a portion of the costs. In addition to the cost difference, the City would lose many advantages to having WSB serve as the City Engineer. Primarily,the City would lose the following: • We have provided talented staff to the City of Rosemount. We have provided consistency and leadership with Andy Brotzler, along with an excellent in-house support staff that has included Mark Erichson and Morgan Dawley in the past, and Phil Olson currently. • Andy and Phil are supported by all 16 of our service areas through a simple phone call. The City receives this value without cost when it involves basic requests or key strategic discussions. • The City gets the benefit of a staff of 160, at a cost far below the cost of hiring one staff person. We provide staff with specific areas of expertise that are able to proactively advise the City regarding requirements and regulations and provide those updates to your staff at a fraction of the cost. This makes our staff much more effective and efficient. C:\Users\ajb\Documents\Rosemount Contract\MEMO Rsml.Council 100412.docx Honorable Mayor and City Council October 4, 2012 Page 10 FINAL COMMENTS As can be noted from this memo, we are very interested in continuing as your City Engineer/PWD and believe that it is in the City's best interest as well. We would appreciate the opportunity to discuss a retainer option that is in our mutual best interest and consider adjustments to the current model based on the council's interest. It is my hope that this memo addresses the fact that WSB is very cost conscious and aspires to save the City money in how we operate and with the overall value that we provide. Andy Brotzler is a top PWD/City Engineer and would be difficult to replace from a quality and expertise standpoint, not to mention the history he has with the City. Finally, we would ask that you evaluate our services on our performance and not on how others provide similar services. This has been a very successful partnership that is the result of a strong commitment from the City council and staff combined with a personal commitment from Andy and WSB. Please let me know if we can address other questions that you may have. Thanks for this wonderful opportunity to serve the City of Rosemount! We value our relationship! C:\Users\ajb\Documents\Rosemount Contract\MEMO Rsmt.Council 100412.docx PROFESSIONAL SERVICES AGREEMENT This Agreement is made as of the 1st day of January, 2010 by and between the City of Rosemount, Minnesota, a Minnesota municipal corporation (hereinafter referred to as "City") and WSB & Associates, Inc., a Minnesota corporation (hereinafter referred to as "Engineer") with offices located at 4150 Olson Memorial Highway, Suite 300,Minneapolis,Minnesota 55422. WITNESSETH: That the City and Engineer, for the consideration herein named, agree as follows: Section 1. Scope of Work. Engineer will provide services as described on Exhibit 1, attached hereto and hereby made a part hereof(hereinafter generally referred to as the"Project"), on a fixed monthly retainer payable in the month following the month in which services are rendered. The monthly retainer will be $2,500.00 for 2010, $2,916.67 for 2011 and $3,333.33 for 2012. These services generally include administrative and staff duties as acting city engineer and director of public works for the City. Work on the Project will generally be performed by Andy Brotzler or another mutually agreeable employee of Engineer (the "Acting Director of Public Works/City Engineer"). The cost of the work for development related projects is to be passed through to a developer or other private party at the billing specified on Exhibit 2. Work requested by the City and performed by other employees of Engineer that does not fall within the scope of services described on Exhibit 1 will be compensated on a hourly basis on the fee schedule attached hereto as Exhibit 2,or will be made the subject of a separate contract for services. Section 2. Changed Conditions. If the Engineer determines that any services it has been directed or requested to perform are beyond the scope of services as set forth in Exhibit 1, Engineer shall promptly notify the City of that fact. Additional work and additional compensation for such work must have the prior approval of City. Section 3. Term and Termination. Unless earlier terminated in accordance with this paragraph, the term of this Agreement shall be three years from January 1, 2010 through December 31, 2012. This Agreement may be terminated by the City with no prior notice for malfeasance or misconduct by Engineer. This Agreement may be terminated by either party upon ten days' notice for material breach of this Agreement by the other party. This Agreement may be terminated by either party upon ninety days' written notice without cause. In the event of teiniination, copies of plans, reports, specifications, electronic drawing/data files (CADD), field data, notes, and other documents whether written, printed or recorded on any medium whatsoever, finished or unfinished, prepared by the Engineer pursuant to this Agreement and pertaining to the Project (hereinafter "Instruments of Service"), shall be made available to the City subject to Section 4. All provisions of this Agreement allocating responsibility or liability between the City and Engineer shall survive the completion of the services hereunder and/or the termination of this Agreement. Section 4. Reuse and Disposition of Instruments of Service. During the course of the work, the Engineer shall, if requested, make available to the City copies of the Instruments of Service. At 1 the time of completion or termination of the work, the Engineer may make available to the City copies of Instruments of Service upon (i) payment of amounts due and owing for work performed and expense incurred to the date and time of termination, and(ii) fulfillment of the City's obligation under this Agreement. Any use or re-use of such Instruments of Service by the City or others without written verification or adaptation by the Engineer except for the specific purpose intended will be at the City's risk and full legal responsibility. Section 5. Agreement. The Agreement constitutes the entire understanding between the Engineer and City. The Agreement supersedes all prior written or oral understanding and may only be amended, supplemented,modified or canceled by a duly executed written instrument. Section 6. Responsibilities. In order to permit the Engineer to perform the services required under this Agreement, the City shall, in proper time and sequence and where appropriate to the Project, at no expense to the Engineer: 1. Provide available information as to its requirements for the Project. 2. Guarantee access to and make all provisions for the Engineer to enter upon public and private lands to enable the Engineer to perform its work under this Agreement. 3. Provide such legal, accounting and insurance counseling services as may be required for this Project (such as review of insurance certificates, bonding clarifications and legal questions regarding property acquisition or assessment). 4. Notify the Engineer whenever the City observes or otherwise becomes aware of any defect in the Project. 5. Designate a person to act as City's representative with respect to the services to be rendered under this Agreement. The City's representative shall have the authority to transmit and receive instruction and information and to interpret and define the City's policies with respect to services rendered by the Engineer. 6. Furnish data (and professional interpretations thereof) prepared by or services performed by others, including where applicable, but not limited to, previous reports, core borings, probings and sub-surface explorations, hydrographic and hydro geologic surveys, laboratory tests and inspection of samples, materials and equipment; appropriate professional interpretations of the foregoing data; environmental assessment and impact statements; property, boundary, easement, right-of-way, topographic and utility surveys; property description; zoning, deed and other land use restrictions; and other special data. 7. Review all reports, sketches, drawings, specifications and other documents prepared and presented by the Engineer, obtain advice of legal, accounting and insurance counselors or others as City deems necessary for such examinations and render in writing decisions pertaining thereto within reasonable times so as not to delay the performance by the Engineer of the services to be rendered pursuant to this Agreement. 2 8. Where appropriate, endeavor to identify, remove and/or encapsulate asbestos products or materials or pollutants located in the project area prior to accomplishment by the Engineer of any work on the Project. 9. Provide record drawings and specifications for all existing physical plants of facilities that are pertinent to the Project. 10. Where available provide other services,materials,or data. 11. Bear all costs incidental to compliance with the requirements of this Section. 12. Provide the foregoing in a manner sufficiently timely so as not to delay the performance by the Engineer of the services in accordance with this Agreement. Engineer shall be entitled to rely on the accuracy and completeness of information or services furnished by the City or others employed by the City. Engineer shall endeavor to verify the information provided and shall promptly notify the City if the Engineer discovers that any information or services furnished by the City is in error or is inadequate for its purpose. Section 7. Opinions of Cost. Opinion, if any, of probable cost, construction cost, financial evaluations, feasibility studies, economic analyses of alternate solutions and utilitarian considerations of operations and maintenance costs are made or to be made on the basis of the Engineer's experience and qualifications and represent the Engineer's best judgment as an experienced and qualified professional design firm. The parties acknowledge, however, that the Engineer does not have control over the cost of labor, material, equipment or services furnished by others or over market conditions or Engineer's methods of determining their prices, and any evaluation of any facility to be constructed or acquired, or work of necessity must be speculative until completion of construction or acquisition. Accordingly, the Engineer does not guarantee that proposals, bids or actual costs will not vary from opinions, evaluations or studies submitted by the Engineer. Section 8. Hold Harmless and Insurance. Engineer has procured insurance in the types and amounts set forth in Exhibit 3. The Engineer agrees to defend, indemnify and hold harmless the City, its officers and employees, from any liabilities, claims, damages, costs, judgments, and expenses, including attorney's fees, resulting directly or indirectly from an act of omission of the Engineer, its employees, agents or employees of consultants, in the performance of this contract of by reason of the failure of the Engineer to fully perform, in any respect, all of its obligations under this contract. The City acknowledges that professional liability (errors and omissions) insurance is unavailable to cover claims arising out of the performance or failure to perform professional services, including, but not limited to, the preparation of reports, designs, drawings and specifications related to the investigation, detection, abatement, replacement, modification, removal or disposal of: 3 1. Hazardous or toxic materials; or 2. Materials or processes containing asbestos. As used herein, hazardous or toxic materials shall include but not be limited to any solid, liquid, gaseous or thermal irritant, contaminant, or hazardous waste as defined by Federal and State Law and cases construing such definition. Waste includes materials to be recycled, reconditioned or reclaimed. It is acknowledged by both parties that Engineer's scope of services does not include any services related to asbestos or hazardous or toxic materials. In the event the Engineer or any other party encounters asbestos or hazardous or toxic materials at the job site, or should it become known in any way that such materials may be present at the job site or any adjacent areas that may affect the performance of the Engineer's services, the Engineer may, at its option and without liability for consequential or any other damages, suspend performance of services on the project until the City retains appropriate specialist consultant(s) or contractor(s) to identify, abate and/or remove the asbestos or hazardous or toxic materials, and warrant the job site is in full compliance with applicable laws and regulations. Section 9. Assignment. This Agreement, intended to secure the service of individuals employed by and through the Engineer, shall not be assigned or transferred without written consent of the City. Section 10. Controlling Law. This Agreement is to be governed by the laws of the State of Minnesota. Section 11. Non-Discrimination. Engineer will comply with the provisions of applicable Federal, State and Local Statutes, Ordinances and Regulations pertaining to human rights and non- discrimination. Section 12. Conflict Resolution. In an effort to resolve any conflicts that arise during the design or construction of the project or following the completion of the project, the City and Engineer agree that all disputes between them arising out of or relating to this Agreement shall be submitted to nonbinding mediation unless the parties mutually agree otherwise. Section 13. Attorney's Fees. In the event of any litigation arising from or related to the services provided under this Agreement, the prevailing party will be entitled to recovery of all reasonable costs incurred, including staff time, court costs, attorneys' fees and other related expenses. Section 14. Confidentiality. The Engineer agrees to keep confidential and not to disclose to any person or entity, other than the Engineer's employees, subconsultants and the general contractor and subcontractors, if appropriate, any data and information not previously known to and generated by the Engineer or furnished to the Engineer and marked CONFIDENTIAL by the City and to comply with the provisions of the Minnesota Government Data Practices Act, Minn. Stat. Ch. 15. These provisions shall not restrict the Engineer from giving notices required by law or complying with an order to provide information or data when such order is issued by a court, administrative 4 agency or other authority with proper jurisdiction, or if it is reasonably necessary for the Engineer to defend itself from any suit or claim. Section 15. Location of Underground Improvements. The Engineer will conduct the research that in its professional opinion is necessary and will prepare a plan indicating the locations intended for subsurface penetrations with respect to assumed locations of underground improvements. Such services by the Engineer will be performed in a manner consistent with the ordinary standard of care. The City recognizes that the research may not identify all underground improvements and that the information upon which the Engineer relies may contain errors or may not be completed. Section 16. Betterment. If, due to the Engineer's error, any required item or component of the project is omitted from the Engineer's construction documents, the Engineer shall not be responsible for paying the cost to add such item or component to the extent that such item or component would have been otherwise necessary to the project or otherwise adds value or betterment to the project. The Engineer shall be responsible for the difference between the construction cost arrived at through the bid process and the construction cost actually negotiated, if there is a difference. This amount will be negotiated between the City and Engineer. Section 17. Independent Contractor. In the performance of all services under this Agreement, Engineer shall be an independent contractor and not an employee of the City and neither the Acting Director of Public Works/City Engineer or any other officer, employee or agent of Engineer shall be an employee of the City for any purpose whatsoever. WSB & ASSOCIATES, INC. By 4A-bj9; ItsPrt CITY OF ROSEMOUNT T J/r By Its Mayor And By l iii ���t Its Clerk 5 EXHIBIT 1 RETAINER SERVICES THE PROJECT General City Engineering and Public Works Including: 1. Acts in a department head capacity for the Public Works Department including planning, coordinating, supervising and evaluating programs, plans, services, staffing, equipment, infrastructure and maintenance. 2. Evaluates public works needs and formulates short and long range plans to meet needs in all areas of responsibility, including streets, water, sewer, drainage, light, park maintenance, building maintenance, vehicle and equipment for the City. 3. Meets with developer and members of the public on proposed development projects in order to relate the processes and procedures involved with engineering and infrastructure development; 4. Determines the need for preliminary studies; reviews all preliminary studies for compliance with ordinances,comprehensive plans, engineering standards and financial guidelines. 5. Directs engineering activities on projects and assigns consulting engineers; oversees project management for the construction of the municipal public works projects. 6. Reviews plans and specifications, makes presentations to the City Council and members of the public on improvement projects, monitors the construction process for compliance with codes, regulations, standards and with approved plans; assures financial accountability of private projects as they relate to escrows and letters of credit. Regularly attends City meetings including City Council and Planning Commission meetings, and on an as-needed basis, Committee of the Whole meetings. 7. Directs the assessment process for recovery of municipal costs incurred on improvement projects. 8. Develops systems to monitor sewer and water usage; compiles data designed to annually update the sewer and water rate study; directs the preparation of reports for the Metropolitan Waste Control Commission. 9. Ensures that costs and fees are charged back to development projects; works with the Finance Department to monitor charges and revenues associated with development projects. 10. Attends meetings and acts as staff liaison to the Utilities Commission including preparing reports and agendas, conducting research, answering questions, providing advice and suggestions. 1-1 11. Prepares annual departmental budgets and monitors expenditures. 12. Acts as city liaison and city representative with other communities and county, state and federal agencies. 13. Provides advice and recommendations to the City Administrator and other city department heads and staff; reviews proposals submitted by management staff and makes appropriate comments and suggestions; and assists city staff with any engineering needs. 14. Works with consultants and other outside individuals/groups involved in studies affecting city services and coordinates special projects and studies. 15. Develops and implements policies and procedures for effective operation of the department consistent with city policies and relevant laws, rules and regulations and ensures council actions are implemented. 16. Oversees the preparation and updating of the city's plans such as the Storm Water Management Plan, Water Supply & Distribution Plan, Wetland Management Plan, etc; develops, updates and oversees the public works capital improvement plan; develops and revises city policies for storm water, assessments and other areas as required. 17. Maintains the city's Municipal State Aid Road System. 18. Makes public presentations and deals with the public on an individual basis. 19. Supervises staff either directly or through subordinate supervisors and oversees operations to assure the desired level and quality of service is being provided. Supervision of staff includes: assignments, direction, discipline, suspension, reward, adjust grievances, transfer of employees and recommends the hiring, discharge or promotion of employees in the Public Works Department. 1-2 EXHIBIT 2 RATE SCHEDULE Billing Rate/Hour Principal $134.00 Associate $126.00 Sr.Project Manager/Sr.Project Engineer $121.00 Project Manager II/Project Engineer III/Engineering Specialist IV $112.00 Project Manager/Project Engineer II/Engineering Specialist III $105.00 Project Engineer/Registered Land Surveyor/Engineering Specialist II $96.00 Graduate Engineer II/Engineering Specialist I/Sr.Construction Observer $86.00 Graduate Engineer/Engineering Technician V/Construction Observer $76.00 Engineering Technician IV/Scientist III $68.00 Engineering Technician III/Scientist II $62.00 Engineering Technician II/Scientist I $56.00 Engineering Technician I $49.00 Office Technician II $62.00 Office Technician I $33.00 Survey(Two-Person Crew/GPS Crew) $140.00 Survey(Three-Person Crew/Expanded GPS Crew) $167.00 Costs associated with word processing,vehicle mileage,cell phones,reproduction of common correspondence and mailing are included in the above hourly rates. Reimbursable expenses include costs associated with plan,specification and report reproduction, permit fee,delivery cost,etc. Rate Schedule is adjusted annually. 2-1 EXHIBIT 3 INSURANCE This contract shall be effective only upon the approval by the City of acceptable evidence of the insurance detailed below. Such insurance secured by the Engineer shall be issued by insurance companies acceptable to the City and admitted in Minnesota. The insurance specified may be in a policy or policies of insurance, primary or excess. Such insurance shall be in force on the date of execution of the contract and shall remain continuously in force for the duration of the contract. The Engineer and its contractors shall secure and maintain the following insurance: a. Worker's Compensation insurance that meets the statutory obligations with Coverage B - Employer's Liability limits of at least $100,000 each accident, $500,000 disease -policy limit and $100,000 disease each employee. b. Commercial General Liability insurance with limits of at least $1,500,000 general aggregate, $1,500,000 products - completed operations $1,500,000 personal and advertising injury, $1,500,000 each occurrence $50,000 fire damage, and $5,000 medical expense any one person. The policy shall be on an "occurrence" basis, shall include contractual liability coverage and the City shall be named an additional insured. c. Commercial Automobile Liability insurance covering all owned, non-owned and hired automobiles with limits of at least $1,500,000 per accident. d. Professional Liability. Professional (or "Errors & Omissions") Liability Insurance in the amount of at least $1,500,000 Each Occurrence (or "wrongful Act" or equivalent) and, if applicable, aggregate, covering Engineer's liability for negligent acts, errors or omissions in the performance of professional services in connection with the work. Engineer's Professional Liability Insurance may afford coverage on an occurrence basis or on a claims- made basis. It is, however, acknowledged and agreed to by the Engineer that claims-made coverage changes the liability insurance protection intended for the City. Therefore, Engineer agrees that it will not seek or voluntarily accept any such change in its Professional Liability Insurance coverage if such impairment of the protection for the City could result; and further, that it will exercise its rights under any "extended Reporting Period" ("tail coverage") or similar claims-made policy option if necessary or appropriate to avoiding impairment of such p rotection. Engineer further agrees that it will, throughout the entire period of required coverage and for an additional period of two (2) years following final acceptance of the work, immediately: (a) advise the City of any intended or pending change in Professional Liability insurers or in policy forms, and provide the City with all pertinent information that the City may responsibly request to determine compliance with this subsection, and (b) advise the City of any claims or threats of claims that might reasonably be expected to reduce the amount of such insurance remaining available for the protection of the City. Acceptance of the insurance by the City shall not relieve, limit or decrease the liability of the Engineer. Any policy deductibles or retention shall be the responsibility of the Engineer. The 3-1 Engineer shall control any special or unusual hazards and be responsible for any damages that result from those hazards. The City does not represent that the insurance requirements are sufficient to protect the Engineer's interest or provide adequate coverage. Evidence of coverage is to be provided on a City approved Certificate of Insurance. A thirty (30) day written notice is required if the policy is canceled, not renewed or materially changed. The Engineer shall require any of its subcontractors, if allowable under this contract, to comply with these provisions. Acceptance of the insurance by the City shall not relieve, limit or decrease the liability of the Engineer. Any policy deductibles or retention shall be the responsibility of the Engineer. The Engineer shall control any special or unusual hazards and be responsible for any damages that result from those hazards. The City does not represent that the insurance requirements are sufficient to protect the Engineer's interest or provide adequate coverage. Evidence of coverage is to be provided on a City approved Certificate of Insurance. 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