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HomeMy WebLinkAbout6.i. City of Rosemount Consulting Pool ContractEXECUTIVE SUMMARY City Council Regular Meeting: September 6, 2016 AGENDA ITEM: City of Rosemount Consulting Pool Contract AGENDA SECTION: Consent PREPARED BY: John Morast, PE, Interim Director of Public Works/City Engineer AGENDA NO. 6.i. ATTACHMENTS: Selection List, Consultant Pool Contract APPROVED BY: ddj RECOMMENDED ACTION: Approve the Technical Specialty Consulting Agreement and Authorize the Mayor and City Clerk to Enter into the Agreement with the Approved Consultant List. PROPOSAL In June the Council approved the engineering consultant pool listing and directed staff to craft a contract for the engineering services. The list of the consultants is attached for the Council’s information. The contract attached was drafted by the City Attorney and will be in effect for 2 years with the ability for two one year extensions. This contract language will be used for each of the consultants with the Appendix tailored to each consultant and their engineering specialty area. BACKGROUND Engineering Department staff collaborated with the Cities of Lakeville, Apple Valley and Mendota Heights to develop a Request for Statements of Qualifications (SOQ) for engineering-related professional services. A total of 41 firms submitted 187 proposals for the 15 specialty areas. The proposals were reviewed by a selection committee and final selections made for the Rosemount consulting pool. At the June 21, 2016 City Council Meeting, the Council directed the City Attorney to develop contracts with each of the Consultants. The Contract will be provided to each Consultant and will include Appendix A - Services to be Provided By the Consultant, Appendix B - Fee Schedules/Rates, and Appendix C - Reimbursable Expenses. Once executed, the appendices will become part of the Consultant Contract documents. The consulting pool firms were presented to the Council in detail at the June 13, 2016 Work Session and the June 21, 2016 Council Meeting. The Contract terms will allow for the best use of Consultants and, at Rosemount’s option, to extend the term out to a maximum of two additional years. This will give staff the ability to stagger the renewal of the service areas in the future, rather than re-selecting all services at one time. SUMMARY Staff recommends that the City Council Approve the Technical Specialty Consulting Agreement and Authorize the Mayor and City Clerk to enter into the agreements with each of the approved consultants. The selection committee met on June 7, 2016 to make the final selections for the Rosemount consulting pool. The committee has selected the following firms for the pool: Architectural – ISG, Oertel Communications - Black and Veatch, TKDA, Barr Electrical & Mechanical – Barr, TKDA, Stantec, Donahue General Municipal – TKDA, SRF, Bolton and Menk, WSB GIS – Houston, Bolton and Menk Land Survey – Sunde, Bolton and Menk Landscape Architecture – ISG, SRF, Barr Municipal Utility – TKDA, SEH, ISG, AE2S Natural & Water Resources – Barr, EOR, SRF Relocation & Benefit Analysis - Evergreen Soils & Materials – Braun, AET Special Inspections/Studies – TKDA, Barr Structural – TKDA, Barr Traffic & Transportation – SEH, TKDA, SRF Water Storage Facilities – SEH, KLM 1 483042v2 RS215-3 TECHNICAL SPECIALTY CONSULTING AGREEMENT This Agreement (“Agreement”) is entered into this ___ day of ________________, 2016, by and between the City of Rosemount, 2875 – 145th Street W. Rosemount, MN 55068 (the “City”) and ________________________ (“Consultant”), located at __________________. WHEREAS, Consultant has experience in engineering or other specialized technical services; and WHEREAS, the City solicited Statements of Qualifications (SOQ) during the spring of 2016 for services in 15 engineering specialty areas; and WHEREAS, as a result of employing the Qualifications Based Selection Process (QBS), the City has elected to retain Consultant to assist in engineering or other specialized technical services; and WHEREAS, Consultant desires to accept such engagement upon the terms and conditions hereinafter set forth. NOW THEREFORE, in consideration of the mutual agreements herein contained and intending to be legally bound hereby, the City and Consultant hereby agree as follows: ARTICLE 1. TERM OF CONTRACT Section 1.01. Term. This Agreement will become effective on September 6, 2016, and will continue in effect for a term of two years, unless terminated in accordance with the provisions of Article 6 of this Agreement. The parties may agree in writing to extend this Agreement for two additional one-year terms. ARTICLE 2. INDEPENDENT CONTRACTOR STATUS Section 2.01. Independent Contractor Status. The City and Consultant expressly agree that Consultant is an independent contractor and not an employee, agent, joint venturer, or partner of the City. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between the City and Consultant or any employee or agent of Consultant. Section 2.02. State and Federal Taxes. As Consultant is not the City’s employee, Consultant is responsible for paying all required state and federal taxes. In particular, the City will not withhold FICA (Social Security) from Consultant’s payments; will not make state or federal unemployment insurance contributions on Consultant’s behalf; will not withhold state or federal income tax from payment to Consultant; will not make disability insurance contributions on 2 483042v2 RS215-3 behalf of Consultant; and will not obtain workers’ compensation insurance on behalf of Consultant. ARTICLE 3. SERVICES TO BE PERFORMED BY CONSULTANT Section 3.01. Consultant’s Services. The City hereby retains Consultant, on a non-exclusive basis, for the purpose of advising and consulting the City on matters related to but not necessarily limited to:  Specialty/technical services as identified in Appendix A. The precise scope of work may be detailed in individual work authorizations or engagement letters signed by Consultant and City based on the general provisions and conditions set forth in this Agreement. Section 3.02. Other Investigations, Studies and Reports. The City may direct the Consultant to provide services not related to a construction project (“Special Studies”). Examples of Special Studies/Investigations/Reports may include: traffic studies, environmental review, WCA permit review and approval, landscape plans, playground plans, survey work, and easement acquisition. For Special Studies, the Consultant will, upon request by the City, provide the City with a written scope of services and an estimate of the costs, and will not begin work until authorized by the City. Section 3.03. Method of Performing Services. Consultant shall determine the method, details, and means of performing the Services. However, the nature of the Services and the results to be achieved shall be specified by the City. Section 3.04. Place of Work. Consultant shall base the performance of Services at its own business location or such other location as determined by the City. The City is not required to provide office, technical or clerical support services to Consultant. Section 3.05. Time of Performance. Consultant shall submit for the City’s approval a schedule for the performance of the Services that once approved may be adjusted by mutual consent as the Services proceed. This schedule shall include allowances for periods of time required for the City’s and other agencies’ review. Time limits established by this schedule approved by the City shall not be exceeded by Consultant or the City, except for reasonable cause, previously agreed to in writing by the City. ARTICLE 4. COMPENSATION Section 4.01. Compensation. In consideration for the Services to be performed by Consultant, the City agrees to pay Consultant consulting fees in according with the Schedule in Appendix B. 3 483042v2 RS215-3 Any increase in compensation must be agreed to by the City in writing prior to such increase. All projects for which Consultant is retained shall be on an hourly fee basis unless otherwise agreed to in writing by the City. Contemporaneously with the submission of any bill to the City, the Consultant shall provide an itemized statement detailing the billing strategy indicating the number of hours spent by any employee or agent as well as the hourly rate charged by the individual providing the work. The Consultant shall segregate its billing to separate cost centers or projects as may be required by the City. Section 4.02. Expenses. Consultant shall be responsible for all costs and expenses incidental to the performance of the Services, including but not limited to, all taxes required of or imposed against Consultant and all other of Consultant’s costs of doing business. The City agrees to reimburse Consultant only for those reimbursable expenses set forth on Appendix C. Provided, that any expenses related to special consulting or technical services (e.g., outside consultants or technical services) must be pre-approved by the City. When retained directly by the Consultant with prior approval by the City, Consultant shall bill the City no more that 110% of actual costs of such special consulting or technical services. ARTICLE 5. THE CITY’S OBLIGATIONS Section 5.01. The City’s Cooperation. The City agrees to comply with Consultant’s reasonable requests necessary to the performance of Consultant’s duties under this Agreement. ARTICLE 6. TERMINATION OF AGREEMENT Section 6.01. Termination. Notwithstanding any other provision herein to the contrary, this Agreement may be terminated as follows: a. The parties, by mutual written agreement, may terminate this Agreement at any time. b. Consultant may terminate this Agreement in the event of a breach of the Agreement by the City upon providing thirty (30) days written notice to the City. c. The City may terminate this Agreement at any time at its option, for any reason, or no reason at all, upon providing thirty (30) days written notice to the Consultant. d. City may terminate this Agreement immediately upon Consultant’s failure to have in force any insurance required by this Agreement. 4 483042v2 RS215-3 In the event of a termination, City shall pay Consultant for Work performed to the date of termination and for all equipment costs or other expenses incurred prior to the date of termination. ARTICLE 7. DISPUTE RESOLUTION/CONSENT TO ARBITRATION Section 7.01. Agreement to Cooperate with City. Consultant acknowledges that the City may, from time-to-time, be subject to arbitration or litigation arising out of or relating to any engineering or other specialized technical services that may have been provided, directly or indirectly, by Consultant. Consultant agrees to use its best efforts to work with the City and agrees that it will cooperate fully with the City in any arbitration or district court hearing and further agrees, if the City makes a timely request, to be a named party to any arbitration proceeding. ARTICLE 8. GENERAL PROVISIONS Section 8.01. Notices. Any notices given hereunder by either party to the other shall be in writing and may be effected by personal delivery with signed receipt or by registered or certified mail with postage prepaid and return receipt requested. Mailed notices shall be addressed to the parties at the addresses appearing in the introductory paragraph of this Agreement, but each part y may change the address by written notice in accordance with this paragraph. Notices delivered personally or by mail will be deemed communicated as of actual receipt; (both signed at time of receipt). Section 8.02. Assignment. Except for the Consultant’s use of necessary consultants or subcontractors, the Consultant and the City shall not assign or delegate their respective obligations under this Agreement without the written consent of the other party, which consent shall not be unreasonably withheld. Section 8.03. Entire Agreement of the Parties. This Agreement, and any attached exhibits or appendices, shall constitute the entire agreement between the parties and supersedes any and all other written or oral agreements between the Consultant and the City. This Agreement can only be modified in writing signed by the City and the Consultant. Section 8.04. Indemnification. To the fullest extent permitted by law, the Consultant, and the Consultant's successors or assigns, agree to defend, save, and hold harmless the City, its officers, agents, and employees from all claims, suits, or actions of any kind, nature, or character, and the costs, disbursements, and expenses of defending the same, including but not limited to, attorneys’ fees, professional services, and other technical, administrative or professional assistance resulting from or arising out of the negligence, breach of contract or willful misconduct of Consultant or its 5 483042v2 RS215-3 subcontractors, agents, or employees under this Agreement or arising out of the failure to obtain or maintain the insurance required by this Agreement. Nothing in this Agreement shall constitute a waiver or limitation of any immunity or limitation on liability to which the City may be entitled. The parties agree that these indemnification obligations will survive the completion or termination of this Agreement. Section 8.05. Right in Work Product. The work product of Consultant’s services, including results, and all ideas, developments, and inventions which Consultant conceives or reduces to practice during the course of performance under this Agreement and is subsequently reimbursed for by the City, shall be the exclusive property of the City. This information, and material, and any such inventions shall be deemed the City’s proprietary information and shall not be disclosed to anyone outside of the City, or used by Consultant or others without the prior written consent of the City. Provided, however, the Consultant has the right to reuse such information and material in the normal course of its business and retains all rights in its standard drawing details and specifications, and in all field data, notes and databases. Other than reuse or modification by the Consultant, the City waives all claims against the Consultant resulting from any changes or reuse of such information and material. The Consultant will furnish the City with electronic data versions of certain drawings or other written documents (“Digital Data”) compatible with the City’s software (to the extent possible) unless otherwise agreed upon and/or provided in hard copy form. In the event of any conflict between a hard copy document an d the Digital Data, the hard copy document governs. The Digital Data shall be prepared in the current software in use by the Consultant and is not warranted to be compatible with other systems or software. Any Digital Data submitted by the Consultant to the City is submitted for an acceptance period of 60 days (“Acceptance Period”). Any defects that the City discovers during this period and reports to the Consultant will be corrected by the Consultant at no extra charge. For correction of defects reported to the Consultant after the Acceptance Period, the City shall compensate Consultant on an hourly basis at Consultant’s billing rates. The City understands that the Digital Data is perishable and the City is responsible for maintaining it. Section 8.06. Insurance. The Consultant shall maintain insurance coverage for: Worker’s Compensation (statutory limits), General Liability, Automobile Liability, Professional Liability, and Excess or Umbrella Liability in amounts not less than $2,000,000.00 per occurrence and shall provide to the City a current certificate of liability insurance for all coverage referenced above. Such certificate of liability insurance shall list the City as an additional insured and contain a statement that such insurance cannot be cancelled or amended unless thirty (30) days written notice is provided to the City, or ten (10) days written notice in the case of non -payment. Section 8.07. Severability. In the event that any provision of this Agreement shall be deemed illegal or otherwise unenforceable, such provision shall be severed, and the balance of the Agreement shall continue in full force and effect. Section 8.08. Governing Law. All issues concerning this Agreement will be governed by and construed in accordance with the laws of the State of Minnesota. Any disputes, controversies, or 6 483042v2 RS215-3 claims arising out of this Agreement shall be heard in the state or federal courts of Minnesota, and all parties to this Agreement waive any objection to the jurisdiction of these courts, whether based on convenience or otherwise. Section 8.09. Hazardous Substance. The Consultant’s scope of services does not include any services related to hazardous or toxic materials, including asbestos and PCBs. If it becomes known that such materials may be present at or near a Project that may affect the Consultant’s services, the Consultant may suspend performance of its services, without liability, and will assist the City to retain appropriate specialist consultants to adequately identify an d abate such materials so that Consultant's services may resume. Section 8.10. Confidentiality. The Consultant agrees to keep confidential and not to disclose to any person or entity, other than the Consultant’s employees, sub consultants and the general contractor and subcontractors, if appropriate, any data and information not previously known to and generated by the Consultant or furnished to the Consultant and marked CONFIDENTIAL by the City. These provisions shall not apply to information in whatever form that comes into the public domain, nor shall it restrict the Consultant 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 agency or other authority with proper jurisdiction, or if it is reasonably necessary for the Consultant to defend himself or herself from any suit or claim. Section 8.11. Agreement Not Exclusive. The CITY retains the right to hire other consultants for other matters, in the CITY’s sole discretion. Section 8.12. Conflict of Interest. The Consultant shall use reasonable care to avoid conflicts of interest and appearances of impropriety in representation of the CITY. In the event of a conflict of interest, Consultant shall advise the CITY and either secure a waiver of the conflict or advise the CITY that it will be unable to provide the requested services. It is the intent of the Consultant to refrain from handling advertising, digital, and public relations matters for any other person or entity that may pose a conflict of interest. Section 8.13. Data Practices Act Compliance. Any and all data provided to the Consultant, received from the Consultant, created, collected, received, stored, used, maintained, or disseminated by the Consultant pursuant to this Agreement shall be administered in accordance with, and is subject to the requirements of the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13. This paragraph does not create a duty on the part of the Consultant to provide access to public data to the public if the public data are available from the CITY, except as required by the terms of this Agreement. Section 8.14. Records/Inspection. Pursuant to Minnesota Statutes § 16C.05, Subd. 5, the Consultant agrees that the books, records, documents, and accounting procedures and practices of the Consultant, that are relevant to the contract or transaction, are subject to examination by the City and the state auditor or legislative auditor for a minimum of six years. The Consultant shall maintain such records for a minimum of six years after final payment. 7 483042v2 RS215-3 Section 8.15. No Discrimination. Consultant agrees not to discriminate in providing products and services under this Agreement on the basis of race, color, sex, creed, national origin, disability, age, sexual orientation, status with regard to public assistance, or religion. Violation of any part of this provision may lead to immediate termination of this Agreement. Section 8.16. Remedies by City. In the event of a termination of this Agreement by City because of a breach by Consultant, CITY may complete the Work either by itself or by contract with other persons or entities, or any combination thereof. The foregoing remedies provided to City for breach of this Agreement by Consultant shall not be exclusive. The City shall be entitled to exercise any one or more other legal or equitable remedies available because of Consultant’s breach. Section 8.17. Third Party Rights. The parties to this Agreement do not intend to confer on any third party any rights under this Agreement. Section 8.18. Attorney Fees. In the event of any action to enforce or interpret this Agreement, the prevailing party shall be entitled to recover from the losing party reasonable attorney fees incurred in the proceeding, as set by the court, at trial, on appeal or upon review. Section 8.19. Waiver. No waiver of any provision or of any breach of this Agreement shall constitute a waiver of any other provisions or any other or further breach, and no such waiver shall be effective unless made in writing and signed by an authorized representative of the party to be charged with such a waiver. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. CITY OF ROSEMOUNT By: William Droste Its Mayor By: Clarissa Hadler Its: City Clerk