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9.c) Approve Professional Services Agreement with Toltz, King, Duvall, Anderson and Associates, Inc. (TKDA) Meeting Date: 1/17/2�1� Agenda Item: ii� � `� � . ��� City Council Agenda Report City of Scandia 14727 209�' St. North Scandia, MN 55073 (651)433-2274 Action Requested: Approve Professional Services Agreement with Toltz, King, Duvail, Anderson and Associates, Inc. (TKDA) Deadline/ Timetine: N/A Background: • TKDA provides various professional services to the City, primarily relating to planning issues. City has been working �vi�h TKDA under a contract for services entered into with New Scandia Township in 1988. • The Council has requested that this, and other professional service contracts, be reviewed and updated. City Attorney Tom Miller worked with TKDA on the new agreement, attached. • The fee schedule (Exhibit B)has a few changes from the schedule that was in effect in 2011. Most billings are for the Senior Planner classification(Sheri Buss.) The new rate schedule specifies a range of$102 to $118 per hour. The previous rate for this classification was $100 to $126 per hour,which had been in effect since 2008. Recommendation: Staff recommends that the Council approve the agreement. Attachments! • Professional Services Agreement with Toltz, King, Duvall, Materials provided: Anderson and Associates, Inc. (TKDA) Contact(s): Thomas Miller (651) 462-0206 Prepared by: Anne Hurlburt, Administrator (TKDA ageement) Page 1 of 1 O1/13/12 PROFESSIONAL SERVICES AGREEMENT Between CITY OF SCANDIA, MINNESOTA and TOLTZ, KING, DUVALL, ANDERSON AND ASSOCIATES, INCORPORATED THIS AGREEMENT ("Agreement") is made and entered into effective the day of , 20 , by and between the CITY OF SCANDIA, MINNESOTA, a Minnesota municipal corporation with administrative offices at 14727 209th Street North, Scandia, Minnesota 55073, hereinafter referred to as CITY, and TOLTZ, KING, DUVALL, ANDERSON AND ASSOCIATES, INCORPORATED, a Minnesota corporation with a regular place of business at 444 Cedar Street, Suite 1500, St. Paul, Minnesota 55101, hereinafter referred to as TKDA. WITNESSETH: That CITY (prior to the municipal incorporation of New Scandia Township) and TKDA previously entered into a professional services agreement dated March 15, 1988. Since the CITY is now incorporated as a statutory city under the laws of Minnesota, the CITY and TKDA, for the consideration hereinafter named, desire to enter into this Agreement as follows: ARTICLE 1. GENERAL DESCRIPTION OF WORK TO BE DONE The CITY agrees to and hereby does retain and employ TKDA and TKDA agrees to perform Professional Services (Architectural, Engineering and/or Planning) as designated by the CITY in connection with the CITY'S governmental responsibilities, all as described by subseyuent "Authorization(s) for Professional Services" (hereinafter each - "Authorization") substantially in the form of EXHIBIT A hereto. Engineering and Architectural services will, in general, include studies and reports, design, preparation of working drawings and specifications; construction observations, utility mapping, checking of shop drawings and estimates and recommendations regarding acceptance of work; and other related tasks of a type normally associated with infrastructure and facility planning, design, construction, operation and/or maintenance. Planning and Landscape Architectural services will, in general, include review and analysis of land use and zoning applications, completion of staff reports and presentation of staff reports to the Planning Commission and City Council; development and updates of planning documents including comprehensive plans, park and trail plans, natural resource plans, and other plans; interpretation and update of the Development Code and ordinance; provide information and interpretation of ordinance and application requirements as requested; complete environmental reviews and review of environmental documents; and attend Planning Commission, City Council and other meetings as requested. --1-- Individual authorizations for professional services shall be duly approved by the CITY and accepted by TKDA for specific projects and services that have defined work scopes; and all records and documents for services with respect thereto shall be appropriately referenced to each of the specific authorizations. When requested by the CITY, TKDA shall provide the CITY with an Authorization for the specific project/services. To the extent of a conflict between this Agreement and an Authorization, the Authorization shall control. In lieu of signing the Authorization, the CITY may authorize services by issuing a Purchase Order, approved by CITY'S authorized representative and accepted by TKDA; and in this regard, it is mutually agreed that any terms and conditions which are preprinted on CITY'S Purchase Order form do not apply to this Agreement. ARTICLE 2. PERIOD OF SERVICE TKDA is hereby retained on a continuing basis, subject, however, to termination by either party in accordance with Article 5. A period of service for each Authorization shall be as set forth in the specific Authorization for the services described therein as appropriate. ARTICLE 3. COMPENSATION TO TKDA A. Compensation to TKDA for day-to-day services shall be on an Hourly Rate basis. Services described in a specific Authorization shall be on an Hourly Rate basis and/or a Lump Sum basis as designated in the Authorization. The basis shall be calculated as hereinafter described. If no specific basis is identified in the Authorization, the Hourly Rate basis shall apply. l. A Lump Sum method of payment for TKDA's services may apply to all or parts of a work scope where TKDA's tasks can be readily defined and/or where the level of effort required to accomplish such tasks can be estimated with a reasonable degree of accuracy. Unless otherwise provided in the applicable Authorization or the CITY has questions regarding an invoice as provided in(B)below, the CITY shall make monthly payments to TKDA within 30 days of receipt of an invoice based on an estimated percentage of completion of TKDA'S services. 2. An Hourly Rate method of payment for TKDA's services shall apply to all or parts of a work scope where TKDA's tasks cannot be readily defined and/or where the level of effort required to accomplish such tasks cannot be estimated with any reasonable degree of accuracy. Under an Hourly Rate method of payment, TKDA shall be paid for the actual hours worked on an Authorization by TKDA personnel times an hourly billing rate established for each employee. Hourly billing rates shall include compensation for all salary costs, payroll burden, general and administrative overhead and professional fee. A current billing rate schedule is attached hereto as EXHIBIT B and such rates shall not be changed except in accordance with the next sentence of this Paragraph. TKDA will furnish a proposed updated billing rate schedule to the CITY prior to September 15 of each year while this Agreement is in effect reflecting proposed rate changes for the next calendar year. --2-- 3. In addition to the foregoing, TKDA shall be reimbursed at cost for the following Direct Expenses when reasonably incurred in the performance of the work: (a) Travel and subsistence, including vehicle allowances for construction and survey services. (b) Outside professional and technical services with cost defined as the amount billed TKDA plus 10%. (c) Identifiable and reasonably necessary reproduction and reprographic costs. (d) Other expenses for additional items and services as may be required by the CITY to fulfill the terms of a specific authorization. Unless otherwise provided in the Authorization, or the CITY has questions regarding an invoice as provided in (B) below, the CITY shall make monthly payments to TKDA within 30 days of receipt of an invoice based on computations made in accordance with the above charges for services provided and expenses incurred to date, accompanied by supporting evidence as required. B. The CITY will pay the balance stated on the invoice unless CITY notifies TKDA in writing of the particular item that is alleged to be incorrect within 15 days from receipt of an invoice, in which case, only the disputed item will remain undue until resolved by the parties. All accounts unpaid after 30 days from the date of original invoice shall be subject to a service charge of 1-1/2% per month, or the maximum amount authorized by law, whichever is less. In addition, TKDA may after giving seven days' written notice to the CITY, suspend services under this Agreement until TKDA has been paid in full for all amounts then due for services, expenses and charges. CITY acknowledges that TKDA shall not be responsible for any claim for consequential damages arising from suspension of services hereunder. ARTICLE 4. EXTRA WORK In the event that a Lump Sum or maximum payment amount is specified in an Authorization and TKDA is of the reasonable opinion that any work they have been directed to perform is beyond the scope of the Authorization, or that the level of effort required constitutes extra work, they shall promptly notify the CITY of that fact. Extra work, additional compensation for same, and extension of time for completion shall be covered by a Supplemental Authorization agreed to in writing by both parties prior to proceeding with any extra work or related expenditures. ARTICLE 5. ABANDONMENT, CHANGE OF PLAN AND TERMINATION Either Party has the right to terminate this Agreement and/or any "Authorization for Professional Services" upon seven days' written notice. In addition, the CITY may at any time, reduce the scope of an Authorization. Such reduction in scope of an Authorization shall be set forth in a written notice from the CITY to TKDA. In the event of unresolved dispute over change in scope or changed conditions, the authorization may then be terminated. --3-- In the event of termination of an Authorization, copies of all documents finished or unfinished, prepared by TKDA under the authorization shall be made available by TKDA to the CITY pursuant to Article 6, and there shall be no further obligation of the CITY to TKDA under the Authorization, except for payment of amounts due and owing for work performed and expenses incurred to the date and time of termination, plus expenses reasonably incurred by TKDA to gather, compile, copy, and transmit all documents requested by the CITY, computed in accordance with Article 3. In like manner, if the entire Agreement is terminated all Authorizations then in place and not complete shall also be deemed terminated and copies of all remaining documents on file with TKDA shall also, upon request, be made available to the CITY pursuant to Article 6 upon receipt of payment of amounts due and owing TKDA for any authorized work, plus expenses reasonably incurred by TKDA to gather, compile, copy, and transmit all documents requested by the CITY, computed in accordance with Article 3. In the event of a reduction in scope of an Authorization TKDA shall be paid for the work performed and expenses incurred on the Authorization as so reduced and for any completed work for which payment has not been made, computed in accordance with Article 3. Any reduction in the "not to exceed" payment figure shall be established by a Supplemental Authorization agreed to in writing by both parties. ARTICLE 6. DISPOSITION OF PLANS, REPORTS AND OTHER DATA At the time of completion or termination of an Authorization, including the termination of this Agreement, TKDA shall make available to the CITY, upon request, copies of all maps, tracings, reports, resource materials and other documents pertaining to the work or a Project described in an Authorization or prepared pursuant to this Agreement and TKDA shall, except as otherwise limited herein, warrant that such documents shall be prepared in accordance with Articles 8 and 9 of this Agreement. Notwithstanding the foregoing, all such documents are not intended or represented to be suitable for use by the CITY or others beyond the initial intent thereof including for extensions of the work or Project or to any other project. Any such use without written verification or adaptation by TKDA for a purpose beyond the initial purpose intended intended will be at CITY'S sole risk and without liability or legal exposure to TKDA. In this regard, the CITY will indemnify and hold harmless TKDA from any and all suits or claims of third parties arising out of such reuse, which is not specifically verified, adapted, or authorized by TKDA. In the event electronic copies of documents are made available to the CITY pursuant to the foregoing paragraph, the CITY acknowledges that the useful life of electronic media such as DVDs and CDs may be limited because of deterioration of the media or obsolescence of the computer hardware and/or software systems. Therefore, TKDA makes no representation that such media will be fully usable beyond 60 days from date of delivery to CITY. ARTICLE 7. DOCUMENTS FORMING THE CONTRACT The contract documents shall be deemed to include this Agreement with all accompanying exhibits a part hereof, and any subsequent Authorization issued pursuant to the terms of this Agreement. --4-- ARTICLE 8. CITY'S RESPONSIBILITIES A. To permit TKDA to perform the services required hereunder, the CITY shall supply, in proper time and sequence, the following for each Authorization at no expense to TKDA: l. Provide all reasonably necessary information regarding its requirements as necessary for orderly progress of the work. 2. Designate in writing, a person to act as CITY'S authorized representatives with respect to the services to be rendered under an Authorization. Such persons shall have authority to transmit instructions, receive instructions, receive information, interpret and define CITY'S policies with respect to TKDA's services. If no such written designation is provided, the CITY'S authorized representative shall be its City Administrator. 3. Furnish, as reasonably required for performance of TKDA's services (except to the extent provided otherwise in an Authorization), data prepared by or services of others, including without limitation, aerial photos; environmental assessment and impact statements; property, boundary, easement, right-of-way, topographic and utility surveys; property descriptions; zoning, deed and other land use restrictions; and other special data not covered in an authorization. The CITY will not be responsible for any errors or omissions in any such data not prepared directly by the CITY or its employees. 4. Provide reasonable access to, and make all provisions for TKDA to enter upon public or private property as required to perform their work. 5. Act as liaison with other agencies to carry out necessary coordination and negotiations; furnish approvals and permits from all governmental authorities having jurisdiction over a Project described in an Authorization and such approvals and consents from others as may be necessary for completion of the Project. 6. Examine all reports, sketches, drawings, specifications and other documents prepared and presented by TKDA, obtain advice of an attorney, insurance counselor or others as CITY deems necessary for such examination and render in writing, decisions pertaining thereto within a reasonable time so as not to unreasonably delay the services of TKDA. 7. Give prompt written notice to TKDA whenever CITY observes or otherwise becomes aware of any development that affects the scope or timing of TKDA's services or any defect in the work of Construction Contractor(s), Consultants or TKDA. 8. Initiate action, where reasonably appropriate, to identify, remove and/or encapsulate asbestos products or materials located in the area of a Project described in an Authorization prior to accomplishment of any work contemplated under the Proj ect. 9. Provide such accounting, independent cost estimating and insurance counseling services as may be reasonably required for the Project described in an --5-- Authorization, such legal services as CITY may require or TKDA may reasonably request with regard to legal issues pertaining to the Project including any that may be raised by Contractor(s), such auditing service as CITY may require to ascertain how or for what purpose any Contractor has used the moneys paid under the construction contract, and such inspection services as CITY may require to ascertain that Contractor(s) are complying with any law, rule, regulation, ordinance, code or order applicable to their furnishing and performing the work. 10. In the manner required by Article 6 above provide "record" drawings and specifications for all existing physical plants or facilities which are pertinent to an Authorization. 11. Provide other services, materials, or data as may be set forth in an Authorization. B. In the manner required by Article 6 above, TKDA shall be entitled to rely on the accuracy and completeness of information furnished by the CITY. If TKDA finds that any information furnished by the CITY is in error ar is inadequate for its purpose, TKDA shall promptly notify the CITY. ARTICLE 9. TKDA RESPONSIBILITIES A. In the performance of its work under this Agreement or any Authorization, TKDA further agrees as follows: 1. TKDA shall exercise the same degree of care, skill and diligence in the performance of its work and services as is ordinarily exercised by members of the applicable profession under similar circumstances. TKDA shall be liable to the fullest extent permitted under applicable law, without limitation, for any injuries, loss or damages proximately caused by TKDA'S breach of this standard of care. 2. TKDA shall put forth reasonable efforts to complete its duties under this Agreement or an Authorization in a timely manner subject however for delays caused by factors beyond its control or that could not be reasonably foreseen at the time of execution of this Agreement or applicable Authorization. TKDA shall be responsible for costs, delays or damages arising from unreasonable delays in the performance of its duties. 3. TKDA shall not supervise, direct, have control over or responsibiliry for any CITY employees, agents or consultants. 4. TKDA shall promptly notify CITY of any matter or fact which becomes known to TKDA and which affect any Project subject to this Agreement or an Authorization which could lead to a claim for liability against the CITY or which affects TKDA'S performance of work or services under this Agreement or an Authorization. ARTICLE 10. OPINIONS OF COST Opinions of probable project cost, construction cost, financial evaluations, feasibility studies, economic analyses of alternate solutions and utilitarian considerations of operations and maintenance costs prepared by TKDA will be made in accordance with Article 9 --6-- above on the basis of TKDA's experience and qualifications and represent TKDA's best judgment as an experienced and qualified design professional. It is recognized, however, that TKDA does not have control over the cost of labor, material, equipment or services furnished by others or over market conditions or contractors' methods of determining their prices, and that any evaluation of any facility to be constructed, or acquired, or work to be performed on the basis of TKDA's cost opinions, must of necessity, be speculative until completion of construction or acquisition. Accordingly, TKDA does not guarantee that proposals, bids or actual costs will not substantially vary from opinions, evaluations or studies submitted by TKDA to CITY. ARTICLE 11. CONSTRUCTION PHASE SERVICES CITY acknowledges that it is customary for the consultant architect or engineer who is responsible for the preparation and furnishing of Drawings and Specifications and other construction-related documents to be employed in addition to the CITY'S other consultants to provide professional services during the Bidding and Construction Phases of the Proj ect, (1) to interpret and clarify the documentation so furnished and to modify the same as circumstances revealed during bidding and construction may dictate, (2) in connection with acceptance of substitute or or-equal items of materials and equipment proposed by bidders and Contractor(s), (3) in connection with approval of shop drawings and sample submittals, and (4) as a result of and in response to TKDA's detecting in advance of performance of affected work inconsistencies or irregularities in such documentation. CITY agrees that if TKDA is not employed to provide such professional services during the Bidding (if the work is put out for bids) and the Construction Phases of a Project described in an Authorization, TKDA will not be responsible for, and CITY shall indemnify and hold TKDA (and TKDA's professional associates and consultants) harmless from, all claims, damages, losses and expenses including reasonable attorneys' fees arising out of, or resulting from, any interpretation, clarification, substitution acceptance, shop drawing or sample approval or modification of such documentation issued or carried out by CITY or others. Nothing contained in this paragraph shall be construed to release TKDA (or TKDA's professional associates or consultants) from liability for failure to perform in accordance with professional standards any duty or responsibility which TKDA has undertaken or assumed under an Authorization and this Agreement and TKDA shall indemnify and hold CITY harmless from claims, damages, losses and expenses, including reasonable attorney's fees arising out of or resulting from any such failure to perform by TKDA in accordance with this Agreement or an Authorization. ARTICLE 12. INSURANCE TKDA shall procure and maintain insurance for protection from claims against it under worker's compensation acts (statutory limits), claims for damages because of bodily injury including personal injury, sickness or disease or death of any and all employees or of any person other than such employees, and from claims against it for damages because of injury to or destruction of property including loss of use resulting therefrom. TKDA shall also procure and maintain professional and commercial general liability insurance, and auto and excess insurance from a carrier reasonably acceptable to CITY and with limits of$500,000.00 per occurrence and $1,500,000.00 in the aggregate, for all damages arising out of the performance of services caused by a negligent error, omission or act --7-- for which TKDA is legally liable. The commercial general liability insurance policy shall provide coverage for incidents occurring within 50 feet of railroad tracks. Certificates of insurance will be provided to the CITY within thirly (30) days of the CITY'S initial approval of this Agreement and thereafter not less frequently than annually while this Agreement is in place. TKDA shall notify CITY within three (3) business days of any notice of cancellation of any of the required insurance hereunder received by TKDA. ARTICLE 13. INDEPENDENT CONTRACTOR TKDA is an independent contractor. The manner in which the services are performed shall be controlled by TKDA; however, the nature of the services and the results to be achieved shall be specified by the CITY and shall be subject to this Agreement or an Authorization provided for herein. TKDA is not to be deemed an employee or agent of CITY and has no authority to make any binding commitments or obligations on behalf of CITY except to the extent expressly provided herein. All services provided by TKDA pursuant to this Agreement shall be provided by TKDA as an independent contractor and not as an employee of the CITY for any purpose, including but not limited to: income tax withholding, workers' compensation, unemployment compensation, FICA taxes, liability for torts and eligibility for employee benefits all of which shall be the sole responsibility of TKDA. ARTICLE 14. ASSIGNMENT This Agreement, being intended to secure the personal service of the individuals employed by and through whom TKDA performs work hereunder, shall not be assigned, sublet or transferred without the written consent of the CITY. ARTICLE 15. CONTROLLING LAW This Agreement is to be governed by the laws of the State of Minnesota. ARTICLE 16. NON-DISCRIMINATION TKDA will comply with the provisions of applicable federal, state and local statutes, ordinances and regulations including but not limited to those pertaining to human rights and non-discrimination. ARTICLE 17. SEVERABILITY Any provision or portion thereof in this Agreement which is held to be void or unenforceable under any law shall be deemed stricken, and all remaining provisions shall continue to be valid and binding between CITY and TKDA. ARTICLE 18. CONFIDENTIALITY A. It is understood in the course of fulfilling TKDA'S business commitments that TKDA may have to communicate some of this information to various TKDA employees or subconsultants, but in such a case, TKDA will inform them of the confidential nature of the information and make them aware of their responsibility of keeping such --8-- information confidential, and TKDA will use every reasonable effort to see that they do keep such information confidential. B. However, any commitment as to confidential information shall not extend to: information TKDA already possesses at the time of disclosure by the CITY; information which is in or which comes into the public domain from a source other than TKDA; and information that comes to TKDA from a third party source not under obligation to the CITY to maintain the confidentiality thereof. C. TKDA also understands that any drawings, data sheets, or other materials given to it by the CITY remain the property of the CITY and must be returned to the CITY at CITY'S request, at the end of any negotiation or the completion of TKDA'S work for the CITY. D. TKDA further agrees that no disclosure of information relating to any aspects of work for the CITY shall be made to third parties without the CITY'S written consent. IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective the day and year first above written. CITY OF SCANDIA, TOLTZ, G, DUVALL, ANDERSON MINNESOTA AND AS CIATES, 1NCORPORATED By BY Randall Simonson William E. Deitner, P.E. Mayor CEO By BY �� Anne Hurlburt Larry D. ohrer, P.E. City Administrator Vice President, Municipal Services ATTACHMENTS: EXHIBIT A EXHIBIT B --9-- . EXHIBIT A CITY OF SCANDIA, MINNESOTA AUTHORIZATION FOR PROFESSIONAL SERVICES TO: Toltz, King, Duvall, Anderson For use with Project and Associates, Incorporated Specific Assistance 444 Cedar Street, Suite 1500 St. Paul, Minnesota 55101 Pursuant to our Agreement dated effective , 20_("Agreement"), you are hereby authorized to proceed with the professional services described as follows: [PROJECT NAME] I. PROJECT DESCRIPTION CITY proposes to II. SERVICES TO BE PROVIDED TKDA is requested to provide the following services: A. B. C. D. III. COMPENSATION Compensation to TKDA for services provided as described shall be [in the Lump Sum amount ofJ[on an Hourly Ti�ne and Materials basis in an amount not to exceed][the estimated amount of� $ --1-- IV. PERIOD OF SERVICE SECTION II services will be completed by V. ADDITIONAL SERVICES If the need for Additional Services is determined, and the fee for the additional work is agreeable and CITY authorizes such services in writing, TKDA shall furnish or obtain from others services of the types listed below. These Additional Services shall be compensated for on an Hourly Rate basis as defined in Article 3 of the Agreement, a part hereof, and such compensation shall be over and above any maximums or lump sum amounts set forth in this Authorization. A. B. Approved at a meeting of the on , 20 gy Attest Authorized CITY Representative Consultant Acceptance by , , 20 Authorized TKDA Representative --2-- TOLTZ, KING, DUVALL, ANDERSON AND ASSOCIATES, INCORPORATED ENGINEERING • ARCHITECTURE • PLANNING EXHIBIT B HOURLY RATE SCHEDULE Municipal Services Division Employee Classification�' RanQe of Hourlv Billing Rates* Senior Registered Engineer $119.00 to $172.00 Registered Engineer $ 75.00 to $125.00 Graduate Engineer $ 57.00 to $ 85.00 Senior Planner $102.00 to $118.00 Planner $ 52.00 to $ 84.00 Engineering Specialist II $ 99.00 to $116.00 Engineering Specialist I $ 66.00 to $ 98.00 Technician III $ 74.00 to $ 98.00 ** Technician II $ 46.00 to $ 74.00 ** Technician I $ 31.00 to $ 56.00 ** t Hourly billing rates for staff outside the Municipal Services Division will be billed at a 2.85 multiplier. Regular Citv Council and Planning Commission MeetinQs Attendance at meetings, including travel time and expenses. $105.00 /Meeting In addition to the hourly charges,TKDA shall be reimbursed at cost for the following direct expenses when incurred in the performance of the work: 1. Vehicle mileage at current IRS standard rate per mile. 2. Outside professional and technical services with costs defined as the amount billed TKDA plus 10%. 3. Identifiable reproduction and reprographic costs. * Rates effective until December 31,2012. ** For hours worked over 40 hours per week individuals will be paid one and one-half times the above rates. Schedule 2850-M85 City of Scandia,MN