HomeMy WebLinkAbout#19 - Engineering Services AgreementSTAFF REPORT
DATE: December 5, 2023
CONSENT
AGENDA ITEM: Approve General Engineering Services Contract
SUBMITTED BY: Julie Johnson, City Clerk
BACKGROUND: The city issued a Request for Proposals (RFP) for Engineering Services in September. Two firms were interviewed and Council indicated a consensus for moving forward with a contract with FOCUS Engineering for Engineering Services.
ISSUE BEFORE COUNCIL: Does the Council approve of the Agreement for Engineering Services?
PROPOSAL: The attached agreement was provided with the RFP response and has been reviewed by staff.
FISCAL IMPACT: Monthly retainer of $3,100 (2024) - $3,500 (2028). OPTIONS: 1) Approve the Agreement for Engineering Services 2) Do no approve the Agreement for Engineering Services RECOMMENDATION:
“Move to approve Agreement for Engineering Services.” ATTACHMENTS:
• Agreement for Engineering Services
FOCUS ENGINEERING, inc. ‐ Agreement Between City of Lake Elmo and Engineer for Professional Services Page 1 of 10
AGREEMENT
BETWEEN CITY OF LAKE ELMO AND ENGINEER
FOR
PROFESSIONAL SERVICES
This AGREEMENT is made effective as of the __________ day of ______________, 2023 (“Effective
Date”) by and between the CITY OF LAKE ELMO, MINNESOTA, a Minnesota Municipal corporation
(hereinafter referred to as the “City”), and FOCUS ENGINEERING, Incorporated, a corporation
(hereinafter referred to as “Engineer”).
The City intends to engage Engineer to provide Professional Engineering Services and General
Consulting Services, and to act as the appointed City Engineer for the City. This AGREEMENT sets forth
the general terms and conditions which shall govern the relationship and performance of the City and
Engineer.
In consideration of the foregoing recitals and following terms and conditions contained herein, the City
and Engineer agree as follows:
ARTICLE 1: SERVICES OF THE ENGINEER
1.1 Scope of Services: The City agrees to and hereby does retain and appoint Engineer as the
designated “City Engineer”, and Engineer agrees to perform professional engineering services
(“Professional Engineering Services”) in connection with the responsibilities of the City Engineer,
as directed by the City Council and under the direction of the City Administrator.
A. Provide assistance on day‐to‐day matters, acting as the City Engineer, and as requested by
the City.
B. Attend meetings of the City Council or other Committees or Commissions to address
Engineering matters. Participate in internal and external meetings involving engineering
questions and issues.
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C. Act as City liaison and representative with other communities and county, state and federal
agencies in areas of responsibility.
D. Respond to and address constituent requests and issues as received or directed by staff.
Schedule and attend on‐site meetings to review issues as needed.
E. Meet with developers and members of the public on proposed development projects in
order to relate the processes and procedures involved with engineering and infrastructure
development. Review development proposals for conformance with City standards.
F. Engineering services will, in general, include studies and reports, design, preparation of
working drawings and specifications; construction administration and construction
observations; utility mapping, and maintaining engineering records and correspondence;
preparing cost estimates, capital improvement planning, and department budgeting;
maintaining the Municipal State Aid System; maintaining the MS4 NPDES Permit; providing
engineering support to other City departments; guiding and overseeing the design and
construction of public infrastructure systems through private development projects;
preparing Requests for Proposals, and assist with selecting outside Professional Services
Consultants for certain projects, and managing the Professional Services contracts; and
other related tasks of a type normally associated with infrastructure and facility planning,
design, construction, operation and/or maintenance.
G. Under this AGREEMENT the Engineer will provide General Consulting Services in accordance
with the scope of services, engineer's compensation, payment terms, and other provisions
as provided herein. When requested by the City, services for each additional engagement
or Specific Project that is not addressed by this AGREEMENT will be detailed and
documented in a duly executed “TASK ORDER”.
1.2 Procedure for “TASK ORDERS”
A. Engineer shall provide the City with a “TASK ORDER” for specific services or projects when
requested by the City. Each TASK ORDER will indicate the specific task, scope of services,
time for performance, deliverables to be provided, and the basis of compensation.
B. Individual “TASK ORDERS”, if requested, shall be mutually approved by the City and Engineer.
Each duly executed TASK ORDER shall be incorporated and made a part of this AGREEMENT
and the General Considerations thereof.
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ARTICLE 2: PERIOD OF SERVICE
2.1 Term: Engineer is hereby retained on a continuing basis through December 31, 2028, subject,
however, to termination by either party in accordance with ARTICLE 5.9.
2.2 Engineer shall complete its obligations for specific projects and services as set forth in any “TASK
ORDER”.
ARTICLE 3: COMPENSATION
3.1 Basis for Compensation: Compensation to Engineer for day‐to‐day General Engineering
Services shall be provided on a retainer basis in accordance with schedule below. General
Engineering Services are defined as attendance at city council meetings and work sessions, and
committee or staff meetings as requested; acting as the City’s liaison with other agencies;
capital improvement planning; responding to or meeting with property owners on matters not
related to project engineering services; coordinating map updates and GIS updates;
administration of municipal state aid system and certification; advising on potential funding
solutions for infrastructure projects such as identifying grants or loan programs; reviewing and
evaluating suggested revisions to fee schedules, assessment policies and utility rates (not
including rate studies); advising the City of current trends and policy formation; and updating
and maintaining engineering standards.
2024 Retainer amount: $3,100 per month
2025 Retainer amount: $3,200 per month
2026 Retainer amount: $3,300 per month
2027 Retainer amount: $3,400 per month
2028 Retainer amount: $3,500 per month
All other services shall be on an hourly rate basis in accordance with the 2024‐2028 Hourly Rate
Schedule which is attached to this AGREEMENT as Exhibit A. Project engineering services and
department support services shall include engineering support to other city departments
including permit and plan reviews (grading, site plans, CUP and PUD applications); reviewing of
development applications and plans for conformance with city standards; meeting with
developers and members of the public on proposed development projects; guiding and oversee
the design and construction of public infrastructure through private development projects;
providing engineering support to public works as requested for maintaining the MS4 NPDES
Permit, right‐of‐way applications, and overseeing the annual street maintenance projects;
preparing Requests for Proposals, and assisting with selecting outside Professional Services
Consultants for certain projects, and managing the Professional Services contracts; and other
related tasks of the type normally associated with infrastructure and facility planning, design
FOCUS ENGINEERING, inc. ‐ Agreement Between City of Lake Elmo and Engineer for Professional Services Page 4 of 10
and construction; and acting as city liaison and representative for other county, state and
federal agency projects within the city.
Services described in a specific “TASK ORDER” shall be compensated on an hourly rate basis
and/or a lump sum basis as designated in each TASK ORDER in accordance with the attached
2024‐2028 Hourly Rate Schedule.
3.3 Reimbursable Expenses: The Engineer shall be reimbursed at cost for any direct expenses when
incurred in the direct performance of the City’s work in accordance with the attached 2024‐
2028 Hourly Rate Schedule. Mileage shall not be reimbursed for the performance of any
General Engineering Services.
3.4 Payments for Services
A. Preparation and Submittal of Invoices: Engineer shall prepare and submit invoices including
a description of the tasks performed to the City on a monthly basis. Invoices are due and
payable within 30 days of receipt.
B. Unpaid Invoices: All accounts unpaid after 30 days from the date of original invoice shall be
subject to a service charge of 1.5% per month, or the maximum rate of interest permitted by
law, whichever is less. Payment will be credited first to any interest owed to Engineer and
then to principal.
C. Disputed Invoices: If the City contests an invoice, the City shall promptly advise Engineer of
the specific basis for doing so, may withhold only that portion so contested, and must pay the
undisputed portion.
D. Right to Suspend Work: Engineer may, after giving ten (10) days written notice to the City,
suspend services under this AGREEMENT until the City has paid in full all amounts due for
services, expenses, and other related charges. The City waives any and all claims against
Engineer for any such suspension.
ARTICLE 4: CITY’S RESPONSIBILITIES
4.1 City’s representative: When acting as the “City Engineer”, Engineer shall provide services as
directed by the City Council and under the direction of the City Administrator. For specific “TASK
ORDERS”, the City shall designate in writing, a person to act as City’s representatives with
respect to the services to be rendered. Such persons shall have authority to transmit
instructions, receive instructions, receive information, interpret and define City’s policies with
respect to Engineer’s services. When no written designation is made by the City, the City’s
representative shall be the City Administrator.
4.2 Provide Access: The City shall provide access to, and make all provisions for Engineer to enter
upon public or private property as required to perform their work.
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4.3 Provide supporting documentation and Services: The City shall provide all necessary
information regarding its requirements as necessary for orderly progress of the work, including
records, data, instructions, and requirements for completeness. The City shall also provide
services in regards to accounting, fiscal and bond counseling services, insurance, and legal
services as may be required.
4.4 The City shall be responsible for, and Engineer may rely upon, the accuracy and completeness
of all requirements, programs, instructions, reports, data, and other information furnished by
the City to Engineer pursuant to this AGREEMENT. Engineer may use such requirements,
programs, instructions, reports, data, and information in performing or furnishing services
under this AGREEMENT.
4.5 Provide prompt Notice and Review: The City shall promptly review and examine all
correspondence, reports, sketches, drawings, specifications and other documents and
communications prepared and presented by Engineer and render decisions pertaining thereto
within a reasonable time so as not to delay the services of Engineer. The City shall also give
prompt notice to Engineer whenever City observes or otherwise becomes aware of any
development that affects the scope or timing of Engineer’s services or any defect in the work.
4.6 The City shall make timely payments to the Engineer as set forth in ARTICLE 3.
ARTICLE 5: GENERAL CONSIDERATIONS
5.1 Standards and Parameters of Performance
A. Standard of Care: The standard of care for all professional engineering and related services
performed or furnished by Engineer under this AGREEMENT will be the care and skill
ordinarily used by members of the subject profession practicing under similar circumstances
at the same time and in the same locality.
B. Consultants: Engineer may employ such Consultants as Engineer deems necessary to assist
in the performance or furnishing of the services, subject to reasonable, timely, and
substantive objections by City.
C. Reliance on Others: Subject to the standard of care set forth above, Engineer and its
Consultants may use or rely upon design elements and information ordinarily or customarily
furnished by others, including, but not limited to, professional certifications, contractors,
suppliers, manufacturers, and the publishers of technical standards.
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D. Compliance with Laws and Regulations, and Policies and Procedures: Engineer and City shall
comply with applicable Laws and regulations.
E. Certifications and Signatures: Engineer shall not be required to sign any documents, no
matter by whom requested, that would result in the Engineer having to certify, guarantee,
or warrant the existence of conditions whose existence the Engineer cannot ascertain.
F. Engineer shall not at any time supervise, direct, control, or have authority over any
contractor work, nor shall Engineer have authority over or be responsible for the means,
methods, techniques, sequences, or procedures of construction selected or used by any
contractor, or the safety precautions and programs incident thereto, for security or safety
at the Site, nor for any failure of a contractor to comply with Laws and Regulations
applicable to such contractor’s furnishing and performing its work.
G. Engineer neither guarantees the performance of any Contractor nor assumes responsibility
for any Contractor’s failure to furnish and perform the Work in accordance with the Contract
Documents, or for the acts or omissions of any Contractor, Subcontractor, or Supplier.
5.2 Independent Contractor: Engineer is an independent contractor. The manner in which the
services are performed shall be controlled by Engineer; however, the nature of the services and
the results to be achieved shall be specified by the City. All services provided by the Engineer
pursuant to this AGREEMENT shall be provided by the Engineer 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, and eligibility
for employee benefits.
5.3 Insurance
A. Engineer shall maintain statutory worker’s compensation insurance coverage.
B. Engineer shall procure and maintain commercial general liability insurance coverage for
protection from claims for damages because of bodily injury including personal injury, and
from claims against it for damages because of injury to or destruction of property including
loss of use resulting therefrom. The City shall be listed as an additional insured.
C. Engineer shall also procure and maintain professional liability insurance coverage for
damages arising out of the performance of services caused by a negligent error, omission
or act for which Engineer is legally liable.
D. Certificates of insurance will be provided to the City upon execution of the contract and
thereafter upon request by the City.
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5.4 Opinions of Cost
A. Engineer’s opinions of probable project cost, construction cost, life cycle cost, alternative
evaluations, and considerations for operations and maintenance costs are to be made on
the basis of Engineer’s experience and qualifications and represent Engineer’s best
judgment as an experienced and qualified professional generally familiar with the
construction industry. It is recognized, however, that Engineer has no control over the cost
of labor, materials, equipment, or services furnished by others, or over contractors’
methods of determining prices, or over competitive bidding or market conditions. Engineer,
therefore, cannot and does not guarantee that proposals, bids, or actual costs will not
substantially vary from opinions of probable costs prepared by Engineer and submitted to
the City.
B. The services of Engineer with respect to Total Project Costs shall be limited to assisting the
Owner in collating the various cost categories which comprise Total Project Costs. Engineer
assumes no responsibility for the accuracy of any opinions of Total Project Costs.
5.5 Data Practices Act Compliance: Data provided by Engineer or created under this AGREEMENT
shall be administered in accordance with the Minnesota Government Data Practices Act,
Minnesota Statutes, Chapter 13.
5.6 Use of Documents
A. All Documents prepared and submitted by Engineer are instruments of service, and Engineer
shall retain an ownership and property interest therein (including the copyright and the right
of reuse at the discretion of the Engineer) whether or not the Project or Service is completed.
The City shall not rely in any way on any Document unless it is submitted by the Engineer in
its final form.
B. At the time of completion or termination of this AGREEMENT or for each “TASK ORDER,”
Engineer shall make available to the City, upon request, copies of all deliverables, maps,
reports, and correspondence, pertaining to the work or a Project described in a TASK ORDER.
All such documents are not intended or represented to be suitable for reuse by the City or
others on extensions of the work or Project or to any other project. Any reuse without written
verification or adaptation by Engineer for the specific purpose intended will be at the City’s
sole risk and without liability or legal exposure to Engineer. In this regard, the City will
indemnify and hold harmless Engineer from any and all suits or claims of third parties arising
out of such reuse, which is not specifically verified, adapted, or authorized by Engineer.
C. In the event electronic copies of documents are made available to the City, the Engineer
makes no representations as to long‐term compatibility, usability, or readability of such
documents resulting from the use of software application packages, operating systems, or
computer hardware differing from those used by the documents’ creator.
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5.7 Design without Construction Phase Services: The City acknowledges that it is customary for the
Engineer who is responsible for the design of a project to be employed to provide professional
services during the construction phases of that project. Therefore, the following provisions
apply in the event that the City does not retain the Engineer for construction phase services.
The City waives all claims against the Engineer that may be connected in any way to
construction phase engineering or professional services except for those services that are
expressly required of Engineer on the project.
5.8 Conflict of Interest: The Engineer shall use best efforts in the performance of its services and
professional obligations to avoid conflicts of interest and appearances of impropriety in
representation of the City. The Engineer will not accept any private client or project work that
places the Engineer in ethical conflict during our representation of the City and shall
immediately notify the City, and take necessary corrective actions, upon learning of the
existence of any potential conflict of interest. The Engineer does hereby fully disclose that
Engineer is currently designated the Town Engineer for West Lakeland Township.
5.9 Termination
A. Either party may terminate this AGREEMENT upon thirty (30) days written notice.
B. Either party has the right to terminate any “TASK ORDER” upon ten (10) days’ written notice.
In addition, the City may at any time, reduce the scope of a “TASK ORDER”. Such reduction
in scope of services shall be set forth in a written notice from the City to the Engineer.
C. In the event of a reduction in scope, Engineer shall be paid for the work performed and
expenses incurred thus reduced and for any completed and abandoned work for which
payment has not been made.
D. In the event of termination of a “TASK ORDER,” copies of all documents prepared by
Engineer under the authorization shall be made available by Engineer to the City, pursuant
to ARTICLE 5.5, and there shall be no further obligation of the City to Engineer under the
task order, except for payment of amounts due and owing for work performed and expenses
incurred to the date and time of termination, plus expenses incurred by Engineer to gather,
compile, copy, and transmit all documents requested by the City.
E. In like manner, if the entire AGREEMENT is terminated, copies of all remaining documents
on file with the Engineer shall also, upon request, be made available to the City pursuant to
ARTICLE 5.6 upon receipt of payment of amounts due and owing Engineer for any
authorized work, plus expenses incurred by Engineer to gather, compile, copy, and transmit
all documents requested by the City.
5.10 Controlling Law: This AGREEMENT is to be governed by the laws of the State of Minnesota.
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5.11 Successors, Assigns, and Beneficiaries
A. The City and Engineer are hereby bound and the successors, executors, administrators,
assigns, and legal representatives of the City and Engineer are hereby bound to the other
party to this AGREEMENT and to the successors, executors, administrators, assigns and legal
representatives of such other party, in respect of all covenants, agreements, and obligations
of this AGREEMENT.
B. Neither the City nor Engineer may assign, sublet, or transfer any rights under or interest in
this AGREEMENT, or any portion thereof, without the written consent of the other party.
Nothing contained in this paragraph shall prevent Engineer from employing such independent
professional associates and consultants as Engineer may deem appropriate to assist in the
performance of services hereunder.
C. Nothing under this AGREEMENT shall be construed to give any rights or benefits in this
AGREEMENT to anyone other than the City and Engineer.
5.12 Dispute Resolution
A. The City and Engineer agree to negotiate all disputes between them in good faith for a period
of thirty (30) days from the date of notice prior to invoking other provisions of this
AGREEMENT, or exercising their rights under law.
B. The City and Engineer agree that all disputes between them arising out of or relating to this
AGREEMENT shall first be submitted to non‐binding mediation unless the parties mutually
agree otherwise, thereby providing for mediation as the primary method for dispute
resolution between the parties to this AGREEMENT.
5.13 Notices: Any notice required under this AGREEMENT will be in writing, addressed to the
appropriate party at its address on the signature page and given personally, by registered or
certified mail postage prepaid, or by a commercial courier service. All notices shall be
effective upon the date of receipt.
5.14 Survival, Severability, Waiver
A. Survival: All express representations, waivers, indemnifications, and limitations of liability
included in this AGREEMENT will survive its completion or termination for any reason.
B. Severability: Any provision or part of the AGREEMENT held to be void or unenforceable under
any Laws or Regulations shall be deemed stricken, and all remaining provisions shall continue
to be valid and binding upon the City and Engineer.
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C. Waiver: A party’s non‐enforcement of any provision shall not constitute a waiver of that
provision, nor shall it affect the enforceability of that provision or of the remainder of this
AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have executed this AGREEMENT as of the date first above
written.
FOCUS ENGINEERING, inc. CITY OF LAKE ELMO, MINNESOTA
By _________________________________ By _______________________________ __
John (Jack) W. Griffin, P.E. Mayor
Principal / Vice President
By ___________________________________
City Clerk
BASIS OF COMPENSATION – 2024‐2028 10.18.2023
BASIS OF COMPENSATION
GENERAL ENGINEERING SERVICES RETAINER
Compensation to Engineer for day‐to‐day General Engineering Services shall be provided on a
retainer basis in accordance with schedule below. General Engineering Services are defined as
attendance at city council meetings and work sessions, and committee or staff meetings as
requested; acting as the City’s liaison with other agencies; capital improvement planning;
responding to or meeting with property owners on matters not related to project engineering
services; coordinating map updates and GIS updates; administration of municipal state aid system
and certification; advising on potential funding solutions for infrastructure projects such as
identifying grants or loan programs; reviewing and evaluating suggested revisions to fee schedules,
assessment policies and utility rates (not including rate studies); advising the City of current trends
and policy formation; and updating and maintaining engineering standards.
2024 Retainer amount: $3,100 per month
2025 Retainer amount: $3,200 per month
2026 Retainer amount: $3,300 per month
2027 Retainer amount: $3,400 per month
2028 Retainer amount: $3,500 per month
All other services shall be on an hourly rate basis in accordance with the 2024‐2028 Hourly Rate
Schedule which is attached. Services shall include engineering support to other city departments
including permit and plan reviews (grading, site plans, CUP and PUD applications); reviewing of
development applications and plans for conformance with City standards; meeting with developers
and members of the public on proposed development projects; guiding and overseeing the design
and construction of public infrastructure through private development projects; providing
engineering support to the public works department as requested for maintaining the MS4 NPDES
Permit, right‐of‐way applications, and overseeing the annual street maintenance projects;
preparing requests for proposals, and assisting with selecting outside professional services
consultants for certain projects, and managing the professional services contracts; and other
related tasks of the type normally associated with infrastructure and facility planning, design and
construction; and acting as the City liaison and representative for other county, state and federal
agency projects within the City.
2024‐2028 HOURLY RATE SCHEDULE 10.18.2023
2024‐2028 Hourly Rate Schedule
Standard Hourly Rates include salaries and wages paid to personnel in each staff position plus the cost of
customary and statutory benefits, general and administrative overhead, non‐project operating costs, and
operating margin or profit.
HOURLY RATES
PROFESSIONAL ENGINEERING STAFF 2024 2025 2026 2027 2028
$/HR. $/HR. $/HR. $/HR. $/HR.
Sr. Municipal Engineer III $145 $150 $155 $160 $165
Jack Griffin
Sr. Municipal Engineer II $135 $140 $145 $150 $155
Cara Geheren / Ryan Stempski
Sr. Municipal Engineer I $125 $130 $135 $140 $145
Chad Isakson
Municipal Engineer III $115 $120 $125 $130 $135
Municipal Engineer II $110 $115 $120 $125 $130
Municipal Engineer I $105 $110 $115 $120 $125
Mike Rusenovich
Project Engineer $95 $100 $105 $110 $115
Graduate Engineer $85 $90 $95 $100 $105
Jeremy Stalcar / Karl Geary
Engineering Technician $85 $90 $95 $100 $105
Interns $65 $65 $70 $75 $80
Senior Construction Field Representative $125 $130 $140 $145 $150
Staffing is subject to change. Names are provided for reference only.
Reimbursable Expenses Schedule
Vehicle Mileage reimbursed at the current Federal IRS Rate. Mileage shall not be reimbursed for any
tasks performed under the General Engineering Retainer Services.
Identifiable printing/reproduction costs when incurred in the direct performance of the City’s work.
Other expenses for items and services as may be required by the City to fulfill the terms of a specific
Task Order.