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HomeMy WebLinkAbout2.E. WSB Contract ROSEN4OUNTEXECUTIVE SUMMARY CITY COUNCIL City Council Work Session: November 14, 2012 AGENDA ITEM: WSB Contract A.GNDA SECTION: PREPARED BY: Dwight Johnson, City Administrator AGENDA NO. rg ATTACHMENTS: Draft Contract APPROVED BY: Oki RECOMMENDED ACTION: Review draft contract with WSB Engineering and comment on any desired changes BACKGROUND At the October work session, the Council reviewed options for City Engineering services and indicated interest in renewing our contract with WSB Engineering. Accordingly, a draft contract for the years 2013- 2015 is attached for your review. DISCUSSION The draft agreement is for three years. While several Council members expressed support for a possible five year agreement, staff recommends a three year extension as we have done in the past. The draft agreement was developed with our current volume of business in mind. In the years 2016 and beyond, there is some reason to believe that our volume of business could spike dramatically if, for example,we start construction of a water treatment plant at that time. The draft agreement also contains some new legal language sought by WSB to limit their liability when they are acting as our City Engineer. Attorney Charlie LeFevere will be asked to review this language before final approval of the City Council. The revised agreement also specifically indicates that the City can seek a second opinion on a large, complex project that might come forward. Finally, the retainer is proposed to increase to $50,000 annually in 2013, $60,000 in 2014, and then increase by 4.16%to $62,500 in 2015. This increase has been expected based upon conversations earlier this year and the current relatively low volume of business since the recession began. RECOMMENDATION Staff supports the draft agreement as written, subject to further legal review by the City Attorney. If the Council concurs,we would plan to have the contract on the November 20th agenda for approval. PROFESSIONAL SERVICES AGREEMENT This Agreement is made as of the 1st day of January, 2013 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 701 Xenia Avenue South, Suite 300, Minneapolis, Minnesota 55416. 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$4166.67 for 2013, $5000 for 2014 and $5208.33 for 2015. 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 "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. All Services provided on behalf of the City per the agreed upon retainer shall be provided by Engineer in its capacity as City Engineer/Director of Public Works. In this regard, the City agrees that Engineer and its Employees have been requested to act as the agent of the City, a Municipality as defined by Minnesota Statutes section 466.01, for the performance of certain governmental functions otherwise agreed upon. Engineer's actions on behalf of the City are deemed and agreed to be the acts of a person who is in the paid service of the governmental entity. In this regard, Engineer is not acting as an independent contractor, and instead is solely on behalf of the City which is seeking to ensure the life,health,and well being of its citizens and the public in general. 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, 2013 through December 31, 2015. 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 352290v1 CLL RS215-3 1 either party upon ninety days' written notice without cause. In the event of termination, 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 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; 352290v1 CLL RS215-3 2 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. 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. From time to time developers, owners or third parties may provide the City with surveys, plats, drainage plans, utility drawings, engineering or architectural drawings or other materials prepared by third party professionals. Engineer shall have no responsibility or liability to the City or third parties for the accuracy or sufficiency of documentation prepared by those outside design professionals. Engineer will notify the City of errors, discrepancies and inconsistencies it may discover in such documents. In the event Engineer reviews documents for code compliance, performs constructability reviews, value-engineering or any other reviews or tasks involving the design of third parties provided to the City, it is understood that such reviews will not render Engineer liable in any manner for the duties of separately-retained design professionals Engineer shall be entitled to rely on the accuracy and completeness of information or services furnished by the City or by others employed or retained by the City. Engineer shall be entitled to rely on information furnished by third parties to the City or Engineer. 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,or provided or furnished by third parties to the City,is in error or is inadequate for its purpose but is not liable for errors in material provided by the City or third parties. 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 352290v1 CLL RS215-3 3 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. City and Engineer agree to consider obtaining value engineering recommendations or a second opinion on complex or expensive projects. Engineer agrees to assist the City in the selection of a consultant or adjoining public agency staff engineer to provide these services if requested to do so. The value engineering or second opinion will consist of an evaluation of recommendations provided by the Engineer. The City and Engineer will work together to evaluate the recommendations. Section 8. Hold Harmless and Insurance. In serving in the capacity of Director of Public Works/City Engineer, Engineer will provide its services intended to satisfy the City's obligations to the public. In no instance will the engineer's duty or liability to the public or any individual claimant be greater than that of the City. The City agrees to secure liability insurance for the City Engineer/Director of Public Works for services provided under this Agreement on behalf of the City, so long as services are provided by the Engineer in good faith and at the direction of the City. The City agrees that the Engineer shall be considered an agent of the City with respect to any and all claims that relate in any way to the services provided by Engineer in its capacity as Director or Public Works/City Engineer and that Engineer shall be entitled to the same protections afforded the City under Minnesota Statute Sections 466.01 et seq. Engineer has procured insurance in the types and amounts set forth in Exhibit 3. The Engineer agrees to 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: 352290v1 CLL RS215-3 4 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 352290v1 CLL RS215-3 5 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. Engineer Status. In the performance of all services under this Agreement, Engineer shall not be 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 Its CITY OF ROSEMOUNT By Its Mayor And By Its Clerk 352290v1 CLL RS215-3 6 EXHIBIT 1 RETAINER SERVICES THE PROJECT General Director of Public Works and City Engineering Duties: 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. 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. 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; oversees project management for the construction of the municipal public works projects. 6. Regularly attends City meetings including City Council and Utility Commission meetings, and on an as-needed basis, City Council Work Session and Planning Commission 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. 10. Prepares annual departmental budgets and monitors expenditures. 11. Acts as city liaison and city representative with other communities and county, state and federal agencies. 1-1 352290v1 CLL RS215-3 12. 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. 13. Works with consultants and other outside individuals/groups involved in studies affecting city services and coordinates special projects and studies. 14. 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. 15. 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. 16. Oversees the maintenance of the city's Municipal State Aid Road System. 17. 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 352290v1 CLL RS215-3 EXHIBIT 2 RATE SCHEDULE(Insert 2013 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 352290v1 CLL RS215-3 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 protection. 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 352290v1 CLL RS215-3 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. A thirty(30) day written notice is required if the policy is canceled, not renewed or materially changed. 3-2 352290v1 CLL RS215-3