HomeMy WebLinkAbout6.e. Renewal of WSB Engineering AgreementAGENDA ITEM: Renewal of WSB Engineering Agreement
AGENDA SECTION:
PREPARED BY: Dwight Johnson, City Administrator
AGENDA NO. (J.
ATTACHMENTS: Proposed new agreement (redlined to
show changes from current contract)
APPROVED BY
,xl1
RECOMMENDED ACTION: Motion to approve the revised agreement with WSB
Associates, Inc. for the years 2010 through 2012
4 ROSEMOUNT
CITY COUNCIL
City Council Regular Meeting June 2, 2009
EXECUTIVE SUMMARY
ISSUE: The current three year agreement with WSB Associates, Inc. for engineering services expires
on December 31, 2009. The Council should either renew the agreement or choose an alternative method
for delivery of engineering services.
BACKGROUND: The City has contracted with WSB since 2002. We are currently in the last year of a
three year agreement. An essential aspect of the current agreement is that WSB provides a full-time
engineer on site at City Hall for the current sum of $30,000 annually. WSB also provides engineering
services for City projects. The current three year contract, approved in 2006, provided for an initial fee of
$15,000 per year in 2007, $30,000 in 2008, and $45,000 in 2009. However, the contract provided that the
2009 fee would be held to $30,000 if state mandated levy limits were implemented. Since levy limits were
imposed by the State for 2009, the current fee is still $30,000. Also, while WSB bills the City at normal
rates for reimbursable development reviews, Mr. Brotzler's time is billed at a reduced rate for non
reimbursable projects. Another WSB engineer, currently Morgan Dawley, is also located in City Hall and
primarily does project management and development review.
The proposed contract would keep the fee at $30,000 for 2010, and increase it to $35,000 in 2011 and
$40,000 in 2012. At the May 13 Council workshop meeting, it was also discussed that the agreement
could be terminated with three months notice, but with provisions for no notice if there is malfeasance or
misconduct by WSB which would require no advance notice. Finally, it was discussed that Mr. Brotzler
would be designated as Director of Public Work /City Engineer to clarify and affirm his responsibilities as
the department head of public works. The City Attorney has redrafted the agreement incorporating all of
these changes. A separate motion is included on this agenda to make Mr. Brotzler's designation as
Director of Public Work /City Engineer effective immediately.
RECOMMENDATION: Staff recommends renewing the agreement with WSB Associates, Inc.
under the revised terms discussed above.
Witncsscth:
WITNESSETH:
PROFESSIONAL SERVICES AGREEMENT
This Agreement is made as of the 1st day of January, 20022010 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.
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 of $5,416.67 per month 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
performing services not included in the Project, his rate shall be $60.00 per hour unless theThe
cost of the work for development related projects is to be passed through to a developer or other
private party, in which case his rate shall be as 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.
352290v1 -1-cL -3 CLL 2061771
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. This Agreement may be terminated by either party
upon thirtyUnless 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 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;
appropriate professional interpretations of the foregoing data; environmental assessment
and impact statements; property, boundary, easement, right -of -way, topographic and
352290v1 2CLL_RS215 -3 CLL 2061772
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.
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. Options ixi. n 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
352290v1 3CLLRS215 -3 CLL 2064773
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:
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
352290v1 4CLL RS215 -3 CLL 20614
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 apply to information in whatever form that comes into
the public domain, nor shall it 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 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.
352290v1 CCLI. RS215 -3
G664064775
WSB ASSOCIATES, INC.
By
Its
352290v1 6CLL RS215 -3 CLL 2061776
CITY OF ROSEMOUNT
By
Its Mayor
And By
Its Clerk
EXHIBIT 1
RETAINER SERVICES
THE PROJECT
General City Engineering and Public Works Including:
1. Acts in a department head capacity for the Engineering division of the Public Works
Department including planning, coordinating, supervising and evaluating programs,
plans, services, staffing, equipment -ate. 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.
CLL 206177352290v1 CT ,L RS215 -3
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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.
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.
CLL 206177352290v1RS215 -3
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Engineering Technician III /Scientist II
Engineering T echnician II /Scientist I
Costs associated with word processin
permit fee, delivery cost, etc.
Rate Schedule is adjusted annually.
CLL 206177352290v1 CLL RS215 -3
EXHIBIT 2
RATE SCHEDULE
Principal $134 00
Associate $126.00
Sr. Project Manager /Sr. Project Engineer $121.00
Project Man -ger 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 Engineerin• $76 00
Engineering Technician IV /Scientist III $68.00
Engineering Technician I
Office Technician II
Office Technician I
Survey (Two- Person Crew /GPS Crew).
Survey (Three- Person Crew /Expanded GPS Crew)
2 -1
111 SI 11 -a
Billing
Rate /Hour
!1 11 1 1
$62.00
$56.00
$49 00
$62.00
$33.00
$140.00
$167 00
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 $000,0001,500,000 general
aggregate, $1,000 products completed operations $4
personal and advertising injury, $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 $44400A-01,500,000 per accident.
d. Professional Liability. Professional (or "errors" Errors Omissions'-") Liability Insurance in
the amount of at least $4 Each Occurrence (or li"wrongful ActT' 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 in insurers or 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 11 "extended
Reporting Period tail coverage 1 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.
CLL 206177352290v1 CLL RS215 -3
3 -1
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.
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.
CLL 206177352290v1 CLL RS215 -3
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